SIK WAI CHUN v. The Personal Representative of the estate of SIK CHE FONG, Deceased

HCA 1779/2021

[2023] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1779 OF 2021

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DECISION

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THE APPLICATION

1.  By an ex-parte summons filed on 20 December 2022 (“the Summons”), the plaintiff applied for default judgment under Order 19 rule 7 of the Rules of the High Court (“RHC”) and sought, inter alia, a declaration that she has been in adverse possession for a period of no less than 12 years prior to the commencement of these proceedings of the following lots of lands:

(1)  The Remaining Portion of Lot No.436 in Demarcation District No.302 (“Lot 436RP”);

(2)  Lot No.269 in Demarcation District No.310 (“Lot 269”);

(3)  Lot No.276 in Demarcation District No.310 (“Lot 276”); and

(4)  Lot No.284 in Demarcation District No.310 (“Lot 284”)

(collectively, “the Lots”),

and has thereby acquired possessory title to the Lots.

THE APPLICABLE LEGAL PRINCIPLES

2.  It is trite that the Court’s power to grant judgment under Order 19 rule 7 of the RHC is discretionary, and that the Court has to consider the plaintiff’s case according to the pleadings. While the plaintiff must show a case for the order which he seeks to obtain, it is not necessary for him to prove his case by evidence.

3.  As to declaratory relief, it is not the normal practice of the Court to make a declaration without a trial. This is, however, not a rule of law, but only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and if justice would not be done in the event such relief were denied. The Court will scrutinise the application carefully and will not hastily grant the relief sought. The declaratory relief should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice to him: Hong Kong Civil Procedure 2023, Vol 1, at paragraph 19/7/20 (at page 569).

4.  Pursuant to section 7(2) of the Limitation Ordinance (Cap. 347, Laws of Hong Kong) (“the Ordinance”), actions for recovery of land are statute-barred after twelve years from the date on which the right of action accrued, where the right of action accrued after 1 July 1991[1].

5.  No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run: section 13(1) of the Ordinance.

6.  At the expiration of the prescribed period for any person to bring an action to recover land, the title of that person to the land shall be extinguished: section 17 of the Ordinance. However, the effect of expiration of the period is only that it extinguishes the title of the dispossessed against the squatter; it does not convey the paper owner’s title to the squatter: Lam Sai Wan v Minloy Limited [2022] 1 HKLRD 544 at [36].

7.  A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. The possession must be “as of wrong”: Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E – F & H.

8.  While it is possible for a co-owner of land to claim adverse possession against the other co-owner, there has to be ouster before the possession of one of the co-owners is to be treated as adverse against the other: Forgeard v Shanahan 35 NSWLR 206 at 221, followed in Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116, [2021] HKCFA 19 at [48].

9.  Ouster may be presumed in appropriate circumstances: Doe Ex Dim. Fisher & Taylor v Prosser (1774) 1 Cowp 217, followed in Lai Wai Kuen v Wong Shau Kwong [2004] 4 HKC 528 at [11].

PROCEDURAL BACKGROUND

10.  On 24 November 2021, the plaintiff issued the Writ of Summons herein with a Statement of Claim endorsed against the personal representative of the estate of Sik Che Fong (“the Deceased”).

11.  As the Deceased had passed away in as early as 1988, and no application for a grant of administration had ever been made by anyone in relation to the estate of the Deceased, the plaintiff applied and was granted an order on 18 August 2022 that the Official Solicitor be appointed to represent the estate of the Deceased herein for the limited purpose of accepting service of the said Writ of Summons.

12.  The Writ of Summons was served on the Official Solicitor subsequently on 16 September 2022.

13.  No Notice of intention to defend had been given by the estate of the Deceased.

14.  The Court subsequently further ordered on 5 October 2022, inter alia, that this action may be proceeded with in the absence of any person representing the estate of the Deceased.

15.  By an order dated 1 December 2022, the Court granted leave for the plaintiff to amend the Writ of Summons and the Statement of Claim.

16.  The Amended Writ of Summons and the Amended Statement of Claim were then duly served on the Official Solicitor on 6 December 2022.

17.  On 20 December 2022, the plaintiff took out the Summons. By reason of the special feature of this action as set out above, such a Summons is an ex-parte summons and is not required to be served on anyone.

THE PLAINTIFF’S CASE

18.  The plaintiff’s case summarized below has been extracted from the Amended Statement of Claim.

19.  The Lots were originally owned by Chau Lin also known as Sik Fat Ding (釋法定) (“the Grandmaster”) who was the head bhikkhuni (住持) of Shing Lam Temple (勝林寺) (“the Temple”).

20.  Pursuant to a Deed Poll dated 5 February 1985 and two Deeds of Gift both dated 28 July 1965, the Grandmaster, the plaintiff and the Deceased became co-owners of each of the Lots, and each of them had 1/3 share of interests of Lot 436RP, Lot 269, Lot 276 and Lot 284 respectively.

21.  In 1988, the Deceased died intestate. No one had ever applied for letters of administration of the estate of the Deceased.

22.  The Grandmaster died in 1995. Pursuant to two Assents both dated 8 March 1999, the Grandmaster’s 1/3 interest in each of the Lots was vested in the plaintiff.

23.  As a result, the Lots are on paper owned by:

(1)  The plaintiff, who owns 2/3 share thereof;

(2)  The estate of the Deceased, who owns 1/3 share thereof.

24.  A two-storey village house (“the Village House”) had been built on Lot 436RP.

25.  The Temple had been built on Lot 269 and Lot 276.

26.  A small house (“the Small House”) had been built on Lot 284.

27.  During the life time of the Grandmaster:

(1)  She had leased the Village House to different tenants and used the monthly rental received to subsidise the running of the Temple, and to pay off daily expenses of herself and her disciples.

(2)  Lot 269, Lot 276 and Lot 284 had been used as a place of religious practice and her home.

28.  After the death of the Grandmaster in June 1995, the plaintiff had treated herself as the sole owner of the Lots and had, inter alia:

(1)  continued to lease out the Village House, and kept all the monthly rental received from the tenants of the Village House for herself;

(2)  treated the Temple as her vacation home, where she would go back from time to time for retreat;

(3)  erected new fences and installed a new iron gate to Lot 269, Lot 276 and Lot 284, and kept the key thereto;

(4)  renovated the kitchen and washroom on the ground floor of the Temple;

(5)  leased the Small House to one 釋悟心at the rate of $10 per annum for religious practice.

29.  It was further pleaded that no one had ever come forward to claim for repossession of or account of rental received in respect of the Lots against the plaintiff, and that she had been in continuous adverse possession of the Lots for no less than 12 years prior to the commencement of this action.

DISCUSSION

30.  Having considered the plaintiff’s Amended Statement of Claim filed herein, I am satisfied that the plaintiff has properly pleaded a case against the defendant for adverse possession. A very long period of time (since around 1995) had passed, during which the estate of the Deceased had not demanded for any account of rental received by the plaintiff who had a long, undisturbed and quiet possession of the Lots. Ouster may therefore be presumed in the present case.

31.  I accept that, in order to achieve full justice, this Court should grant the declarations as requested.

ORDER

32.  For the above reasons, I make an order in terms of paragraph 2 of the Summons.

33.  I make no order as to the costs of the action (including this application) as proposed by the plaintiff’s counsel.