CHAN SIU PING v. PERSONAL REPRESENTATIVE OF THE ESTATE OF LAM SEE LAI JOSEPH

DCMP 3568/2021

[2022] HKDC 912

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3568 OF 2021

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JUDGMENT

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(A) Nature of the case

1.  The defendant was and is the registered owner of a property known as 1/129^th part or share of and in Subsection 1 of Section B of Inland Lot No 2755 and Section D of Inland Lot No 2755 (Flat 8 on the 8^th Floor of Go Wah Mansion)  (“the Property”).  The defendant was and is still the paper owner of the Property.

2.  By an Originating Summons issued on 15 September 2021, the plaintiff claimed possessory title of the Property.  Go Wah Mansion was a multi-storey building and the occupation extent of the plaintiff was within Flat 8 on the 8^th Floor (“the Flat”)  of the said building.

(B)  The plaintiff's evidence

3.  Lam See Ting Daniel (“Daniel”)  and Lam See Lai Joseph (“Joseph”)  were natural brothers.

4.  In about 1965, Madam Yeung Fu Chau, the natural mother of Daniel and Joseph (“the Mother”)  purchased the Property.

5.  The plaintiff and Daniel married in Hong Kong in about 1967. Thereafter, the plaintiff moved into the Flat, ie the Property, and lived there.

6.  The plaintiff did not know the exact year in which Joseph married his wife 劉淑芳 (“Madam Lau”).  She only knew that Joseph and Madam Lau had already got married before 1967.  Joseph and Madam Lau did not live in the Flat.

7.  In about 1968, Joseph and Madam Lau left Hong Kong and emigrated to Canada.  Thereafter, Daniel only maintained irregular contact with Joseph by way of letters.

8.  On about 27 November 1971, the Mother passed away in Hong Kong. The Mother left a will by which the Property was bequeathed to Joseph.

9.  After the death of the Mother, Joseph returned to Hong Kong to assist in Mother's funeral and other matters relating to the Mother's death. That was the last occasion that the plaintiff and Daniel met Joseph personally.

10.  On about 7 November 1973, the Property was assented to Joseph as the sole owner.

11.  In about late 1989, Joseph expressed to Daniel that he had settled in Canada for many years and he had no plan of returning to Hong Kong. Due to his bad health, Joseph later on intended to give the Property to Daniel as a gift.  In these proceedings, the plaintiff exhibited two letters from Joseph to Daniel.  One of the letters was dated 22 January 1991 in which Joseph urged his brother Daniel to change the owner's name of the Property as soon as practicable.  Joseph also stated that it was not a sale and purchase transaction, but was a gift.  Another letter was undated.  In that undated letter, Joseph stated that his health was deteriorating with unstable health condition.  He urged Daniel to change the name of the Property.  Joseph emphasized that a deed of gift should be executed and it was not a sale.

12.  On about 10 March 1991, Joseph passed away in Scarborough, Ontario, Canada, before any deed of gift was executed in favour of Daniel.

13.  As regard Madam Lau, the plaintiff did not know if Madam Lau survived Joseph, or if Madam Lau was still surviving at the time the present Originating Summons was issued.  The plaintiff and her family members had lost contact with Joseph and Madam Lau after the death of the Mother.  The plaintiff did not know if Joseph and Madam Lau had any children or grandchildren.

14.  On about 6 September 1998, Daniel passed away in Hong Kong.

15.  The plaintiff’s case was that after January, 1991, she had been in exclusive possession of the Flat.  Alternatively, the plaintiff relied on her joint possession with Daniel from 1991 to 6 September 1998.  Thereafter, she relied on her own possession of the Flat.

(C)  Legal principles

16.  The law on adverse possession in Hong Kong is well-settled.  A trespasser who asserts adverse possession bears the burden of proof in respect of exclusive factual possession and his requisite intention to possess, ie animus possidendi.  The trespasser shall adduce affirmative and compelling evidence to prove his case. 

17.  The leading cases of adverse possession are Powell v McFarlane (1979)  38 P & CR 452 which was affirmed and applied by the Hong Kong Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai David and Anor (No 2) (1997-98)  HKCFAR 55.

18.  The heavy onus on the trespassers has been described by Slade J in Powell v McFarlane as follows:-

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” (at page 472 thereof)

19.  In Wong Tak Yue v Kung Kwok Wai David and Anor (No 2) (1997-98)  HKCFAR 55, the Court of Final Appeal held that:-

“The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess...” (per Li CJ at 68 E)

“Where the occupier has made self-serving statement as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism.” (per Li CJ at 69 B-C)

Litton PJ added that:-

“The law is clear. The owner of the land with paper title is deemed in possession of the land. If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land. Only in this way can he establish 'adverse possession' in terms of s 13(1)  of the Limitation Ordinance (Cap 347).” (at 70E)

(D)  Analysis of Factual Evidence of Possession

20.  The plaintiff had filed a detailed affirmation in which she set out her evidence in relation to exclusive factual possession of the Flat.  She said that the Flat was secured by a metal gate and a main door at all material times after she first moved into the Flat back in 1967.  The plaintiff had the keys of the metal gate and the main door of the Flat.  She authorized her children to keep the spare keys.  The plaintiff also lived in the Flat most of the time and she had exercised factual control of the Flat.

21.  Between 2015 and 2019, the plaintiff rented the Flat to her tenant.  The plaintiff received the rental income from her tenant.  The plaintiff moved back to the Flat in about 2019 and moved out again in about mid-2020.  At the moment, the Flat was left vacant but the plaintiff still retained the keys to the main metal gate and main door of the Flat.

22.  In support of her claim, the plaintiff was able to exhibit some contemporaneous documentary evidence which showed that the plaintiff and/or Daniel was living in the Flat.  Her evidence included some old correspondence with various government departments in which the plaintiff used the Flat as her address.  Further, the plaintiff also exhibited some old utility bills which were issued to her in her own name, such as electricity bill in 1994, Government’s demand notes for rates and rent of the Flat in 2001 and 2015. Those demand notes were issued to the plaintiff in her own name.  The plaintiff was also able to exhibit an official receipt issued by the management company of the Incorporated Owners of Go Wah Mansion in March 2004.  The official receipt was issued to the plaintiff presumably as the owner of the Flat in respect of her contribution to the special repair fund of Go Wah Mansion in a sum of HK$5,700.

23.  The plaintiff’s evidence supported the plaintiff’s case that she was in exclusive factual possession of the Flat at all material times.

(E)  Intention to Possess

24.  The plaintiff stated in her affirmation that at all material times, neither Daniel nor herself were ever under any express permission or licence to occupy the Flat, whether from the Mother, the administrator of the estate of the Mother, Joseph, or the estate of Joseph.  I cannot fully accept this assertion.

25.  It should be noted that the Mother purchased the Property back in 1965.  The plaintiff joined her husband Daniel and moved into the Flat in 1967.  At that time, the plaintiff was obviously permitted to live in the Flat by the Mother.

26.  After Joseph had become the sole paper owner of the Property after 7 November 1973, on balance of probability, the plaintiff and Daniel were permitted by Joseph to live in the Flat.  The nature of the permission was in the form of a bare licence.  My finding was supported by Joseph’s  letter dated 22 January 1991 and another undated letter.  By acknowledging the intended gift to be donated by Joseph to her husband Daniel, the plaintiff had actually acknowledged Joseph’s title to the Property before Joseph’s death on 10 March 1991.

27.  However, a bare licence will be revoked upon the donor’s death.

28.  I am satisfied that after the death of Joseph on 10 March 1991, neither the plaintiff nor Daniel possessed the Flat as a licensee anymore.  I accept the plaintiff’s evidence that after 10 March 1991, she possessed the Flat in her own name.  I also accept that after 10 March 1991, the plaintiff and Daniel regarded the Flat as their/her own.  After 10 March 1991, there was no basis to suggest that the plaintiff and/or Daniel was a licensee of any person, including Madam Lau.

29.  In the abovementioned contemporaneous correspondence with the various government departments, the plaintiff described herself as the owner of the Flat as she signed those letters.

30.  Furthermore, in about 2001, when the plaintiff wrote a letter to the owner of the upper floor, ie the 9^th floor of Go Wah Mansion, regarding a water seepage problem, the plaintiff described herself as the owner of the Flat. Later on, in about 2009, the Incorporated Owners of Go Wah Mansion registered a charging order against the Property for two sums of money awarded by the Small Claim Tribunal in a total sum of HK$20,774.  The plaintiff then settled the outstanding amount of HK$20,774 purportedly in the capacity of the owner of the Flat.

31.  I am satisfied that the plaintiff’s intention to possess the Flat was clear and unequivocal.  She had made her intention clear to the world that she possessed the Flat in her own name and regarded the Flat as her own.

32.  In the premises, I find that the plaintiff had been in adverse possession of the Flat since 10 March 1991 continuously.  As the plaintiff’s cause of action first accrued before 1 July 1991, the plaintiff had to possess the Flat exclusively for at least 20 years continuously before she could acquire her possessory title, ie 9 March 2011.  I am satisfied that the plaintiff had proved her case on adverse possession by 9 March 2011.  In fact, I am satisfied that the plaintiff had been possessing the Flat exclusively and continuously in her own name from 10 March 1991 up to this date.

33.  The plaintiff did not claim through her husband Daniel.  The court need not determine the competing interest or relative right, if any, between the plaintiff and her husband Daniel.  Referring to the plaintiff's alternative case, I am satisfied that if the plaintiff’s cause of action only accrued on 6 September 1998 upon the death of Daniel, then the plaintiff had been in adverse possession of the Flat for over 12 years after 6 September 1998.

(F)  The defendant’s absence

34.  The defendant was absent.  The plaintiff had filed two affirmations in explaining how she had exhausted all reasonable attempts to locate the relevant family members of Joseph both in Hong Kong and in Canada, but to no avail.

35.  In gist, the plaintiff had also attempted to search for the records about Madam Lau at the probate registry in Hong Kong and Canada with a view to find out Madam Lau's address or other information about the family members of Joseph and/or Madam Lau.  The plaintiff had also placed notices at various newspapers which were published and circulated in Hong Kong and Toronto, Ontario, Canada.  Furthermore, the plaintiff had also sent letter to Joseph’s last known address which was disclosed in the assent of the Property.

36.  By a Court Order dated 17 May 2022, the Official Solicitor be appointed to represent the estate of Lam See Lai Joseph (林思禮), Deceased for the limited purpose of acceptance of service of the Originating Summons.  By another Court Order dated 12 July 2022, it was ordered that these proceedings be carried on by the plaintiff in the absence of any person representing the estate of Lam See Lai Joseph (林思禮), the defendant herein; and that any judgment made in these proceedings shall bind the estate of Lam See Lai Joseph (林思禮)  to the same extent as it would have bound the personal representative of his estate.

(G)  Declaratory Relief

37.  According to Hong Kong Civil Procedure 2022, vol 1, para 19/7/20, it is stated that:-

“Declaration-- It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently (Wallersteiner v. Moir (No. 1)  [1974] 1 WLR 991); Top One International (China)  Property Group Company Ltd v. Top One Property Grp Ltd [2011] 1 HKLRD 606, [83] & [85] (Fok J (as he then was)). However, this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied (Lam Shing Shou v. Lam Hon Man [2002] 1 HKLRD D3; Lai Wai Kuen v. Wong Shau Kwong, (HCA 3424/ 2003, [2004] HKEC 1373); Law Yuk Fong v. Man Chung Wai (HCA 2195/2015, [2017] HKEC 57).”

38.  I am satisfied that in the circumstances of the present case, declaratory relief should be granted as it serves no other meaningful purposes by requiring the plaintiff to go through a full trial with unnecessary and additional legal costs to be incurred.  This court also considers that after the death of Joseph on 10 March 1991, the plaintiff had possessed the Flat as her own for over 30 years.  She has a genuine need to have her possessory title to the Flat declared by this court, so that she can manage the Flat effectively. Justice is served if declaratory relief is granted in this case even in the absence of the defendant.

(H)  Relief

39.  The plaintiff had exhibited a valuation list provided by the Rating and Valuation Department in respect of the Property, I am satisfied that the present claim falls within the jurisdiction of the District Court and that this proceedings should be disposed of summarily: Hong Kong Civil Procedure 2022, vol 1, para 28/3A/2.

40.  By the present Originating Summons, the plaintiff prayed for:-

(1)  A declaration that the defendant’s title, interest and/or rights in and/or over the Property has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347)  prior to the commencement of the present action.

(2)  A declaration that the plaintiff has been in adverse possession of the Property for a period of no less than 20 years, or alternatively 12 years, before the commencement of the present action, and has thereby acquired and is entitled to the possessory title, interest and/or rights on and/or over the Property.

(3)  An Order that the plaintiff be registered as owner of the Property in the Land Registry

41.  In view of my findings on the plaintiff’s exclusive factual possession and her requisite intention to possess the Flat, I grant a declaration as prayed by the plaintiff in prayer (1)  and (2)  of the Originating Summons as revised.  As to prayer (3)  of the Originating Summons, I believe that it is inappropriate for the court to make an order as such because the acquisition of a possessory title does not work as a conveyance of title.

42.  In Wong King Lim v The Incorporated Owners of Peony House, CACV 3/2012, 29 May 2013 (Yuen and Lam JJA, Au J), the Court of Appeal held that:-

“37.    Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather v St Marylebone Property [1963] AC 510.  As observed by Keith J in Chung Ping-kwan v Lam Island Development [1995] 2 HKLRD 228 at p.235, “the squatter’s possessory title was an independent title …”  The title of the squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the Limitation Ordinance by dispossession for the requisite period of time.  In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter.  It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter.  This outcome vividly demonstrates the proposition that a squatter does not acquire the title of the paper owner and the Limitation Ordinance does not operate as a statutory conveyance of that title to the squatter.” (per Lam JA at para. 37)  (as he then was)  

43.  Wong King Lim case (above)  was applied in Tsang Cho Kiu v Lam Tsat Fuk (HCMP 1077/2013, 10 December 2013)  and Lau Chau Pik, the person appointed to represent the estate of Chow Kam Yuk, Deceased v Leung Mo Tin and Chan Bo Wo, the administrators of the estate of Chan Chok, Deceased and 3 Others (DCCJ 4261/2014, 18 August 2017).

44.  In the premises, it is ordered that:-

(1)  A declaration that the defendant’s title, interest and/or rights in and/or over the Property, ie 1/129^th part or share of and in Subsection 1 of Section B of Inland Lot No 2755 and Section D of Inland Lot No 2755 (Flat 8 on the 8^th Floor of Go Wah Mansion), has been extinguished vis-a-vis the plaintiff by virtue of section 17 of the Limitation Ordinance (Cap 347)  prior to the commencement of the present action;

(2)  A declaration that the defendant is barred from taking any actions to recover possession of the Property against the plaintiff and the defendant’s right to recover possession of the Property against the plaintiff is time barred by virtue of section 7 of the Limitation Ordinance (Cap 347);

(3)  No order as to costs.

45.  I thank counsel for his assistance.