HCA 1192/2021
[2023] HKCFI 3053
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1192 OF 2021
________________________
BETWEEN
TANG CHEUK LUN
1stPlaintiff
TANG CHEUK HANG
2nd Plaintiff
and
WILLIAM YING, THE ADMINISTRATOR
Defendant
________________________
Before:
Hon Cheng J in Chambers
Date of Hearing:
23 November 2023
Date of Judgment:
23 November 2023
Date of Reasons for Judgment:
11 December 2023
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REASONS FOR JUDGMENT
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A. INTRODUCTION
1. By summons of 16th October 2023 (“the Summons ”), the Plaintiffs sought, inter alia , a declaration that the Defendant is barred from bringing any action at law to recover Lot 1244RP and Lot 1251RP in Demarcation District 125 (“the Lots ”) and each of them from the Plaintiffs.
2. The Plaintiffs applied for default judgment under RHC O.13 r.6 and O.19 r.7, the Defendant having failed to give notice of intention to defend the action.
3. At the hearing, I granted the declarations sought. I now set out my reasons for so doing.
B. SERVICE
4. I am satisfied that the writ was served out of the jurisdiction on the Defendant in accordance with the order of Master Matthew Leung of 10th June 2022, and that the Summons was also properly served on the Defendant in accordance with the order of Master SP Yip of 12th October 2023.
5. The Defendant has not filed any acknowledgement of service, and did not appear at the hearing.
C. THE APPLICABLE LEGAL PRINCIPLES
C1. Applications for default judgment
6. On an application for default judgment under O.19 r.7, the court gives such judgment as the plaintiff appears entitled on the statement of claim: O.19 r.7(1). Accordingly, the court will not consider any evidence.
7. It is not the normal practice of the court to make a declaration without a trial. However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if 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. See Hong Kong Civil Procedure 2024 , note 19/7/20.
C2. Adverse possession
8. Pursuant to ss.7 and 38A Limitation Ordinance (Cap. 347) (“LO ”), 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 from 1 July 1991 onwards.
9. 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: s.13 LO.
10. 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: s.17 LO. 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 owner’s title to the squatter: Chan Tin Shi & Others v Li Tin Sung & Others (2006) 9 HKCFAR 29 at [13]; St Marylebone Property Co Ltd v Fairweather [1963] AC 510 at 535.
11. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.
D. THE PRESENT CASE
D1. The pleaded facts
12. I am satisfied that the Plaintiffs have sufficiently pleaded a case that they, together with their predecessors, have been in continuous and uninterrupted possession and occupation of the Lots (either through themselves or their tenants) for at least twelve years prior to the commencement of this action, with the requisite intention to possess the Lots to the exclusion of the whole world, including the Defendant.
13. The narrative of facts below is taken from the matters pleaded in the Statement of Claim.
14. The Plaintiffs are in fact the registered owners of the Lots. The way in which they came to be registered is as follows.
14.1 Originally, Lot 1244RP formed part of Lot 1244, and Lot 1251RP formed part of Lot 1251. I will refer to Lot 1244 and Lot 1251 as “the Undivided Lots ”.
14.2 The Undivided Lots were both owned by the Defendant.
14.3 On 5th May 1981, the Undivided Lots were apparently conveyed by the Defendant to Sieh Ni (“Sieh ”), who was a previous owner of the Undivided Lots.
14.4 On 2nd November 1985, the Undivided Lots were apparently conveyed by Sieh to Wu Cheng Zai (“Wu ”).
14.5 In about 1989, Lot 1244 was carved out into Lot 1244A and Lot 1244RP, and Lots 1251 was carved out into Lot 1251A and 1251RP. Wu surrendered Lots 1244A and 1251A to the Government and obtained compensation.
14.6 In 1991, the Defendant commenced proceedings, claiming (1) against Sieh that the documents by which the Undivided Lots were conveyed by the Defendant to Sieh were forged, and (2) against Wu for the compensation received from the Government. On 16th February 1995, the Defendant obtained judgment (“the 1995 Judgment ”), declaring inter alia that the aforesaid conveyances to Sieh were null and void and of no legal effect. Wu was not ordered to pay any compensation to the Defendant.
14.7 Despite the 1995 Judgment, the Defendant never regained possession of the Lots.
14.8 By an assignment dated 28th July 2014, the Plaintiffs became the registered owners of the Lots.
15. In about 1992, the Plaintiffs’ father (“Father ”) entered into possession of, and occupied the Lots and adjacent land without the permission of Wu (who at the time was registered owner of the Lots). At the end of 1992 Wu discovered this state of affairs and demanded that Father pay rent to Wu.
16. From the period of 1st December 1992 to 27th July 2014, Wu let the Lots to Father.
17. On 28th July 2014, Wu assigned the Lots to the Plaintiffs. The Plaintiffs continued letting the Lots to Father, who sub-let the Lots to various parties until (in the case of Lot 1244RP) the date of the writ herein and (in the case of Lot 1251RP) until about 2016 when the Government resumed Lot 1251RP.
18. The Government has refused to pay any compensation to the Plaintiffs upon resumption of Lot 1251RP on the ground that the Plaintiffs did not acquire any interest in the lot.
D2. Establishing the necessary periods of possession and intention
19. Whilst it is possible that the Defendant’s right to recover the Lots as against Wu may have accrued as early as 2nd November 1985 when Sieh purported to convey the Undivided Lots to Wu, the pleaded case is that dispossession by Wu first started from 1992, when Father entered onto the Lots. For present purposes, the Plaintiff sought to establish the relevant period of adverse possession from 1st December 1992, when it is said that Wu demanded rent from Father for his occupation of the Lots.
20. Wu’s and the Plaintiffs’ adverse possession of the Lots can be established through their tenant, namely Father. See Cheung Yat Fuk v Tang Tak Hong and others (2004) 7 HKCFAR 70 at [8].
21. As long as the period of adverse possession is continuous, the adverse possession of successive squatters may be aggregated: Allen v Matthews [2007] 2 P & CR 21 at [85]. Thus the Plaintiffs can add the period of squatting by Wu, the squatter immediately preceding them, to their own period of possession.
22. Typically, the intention to possess requisite for adverse possession involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow: see Wong Tak Yue at 68H-J. The necessary animus can also be established if the squatter erroneously believes that he owns the property: JA Pye (Oxford) Ltd v Graham [2001] Ch 804 at [41(5)];[1] Cheung Kwong Yuen v Sun Hui Fang [2016] 1 HKLRD 464 at [12] to [14]. It therefore does not matter whether Wu and the Plaintiffs considered that they were the true owners, or that they were aware that they were not but had the intention to exclude the true owner.
23. In the circumstances, I considered that this was an appropriate case in which to grant declaratory relief.
E. DISPOSITION
24. I therefore granted:
24.1 a declaration that from 1st December 2004, the Defendant has been barred from bringing any action at law to recover the Lots or any of them from the Plaintiffs;
24.2 a declaration that from 1st December 2004, the Defendant’s title to the Lots was extinguished vis-à-vis the Plaintiffs by virtue of s.17 LO.
25. I made no order as to the costs of the action or the application.
(Yvonne Cheng)
Judge of the Court of First Instance
Mr Jerome Liu, instructed by W.L. Lai & Co., for the 1st and 2nd Plaintiffs
The Defendant was not represented and did not appear
[1] Appeal to House of Lords allowed on other grounds.