LAW YUK CHEUNG v. LOA KU TAI

DCCJ 4/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4 OF 2012

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J U D G M E N T

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1. This is the plaintiff’s application for judgment against the defendant in default of defence under Order 19 rule 7 of the Rules of the District Court.

2. The defendant is the registered owner of the land registered in the Land Registry as Toi Shan Wing Ling Li Lot No 181 in DD 111 (also known as No 44 Lo Uk Tsuen, Wang Toi Shan, Pat Heung, New Territories) (“the Land”).

3. By this action, which was commenced on 3 January 2012, the plaintiff claims against the defendant for declarations under the Limitation Ordinance (“the Ordinance”) on the ground of adverse possession.

4. According to the affirmations filed by the plaintiff earlier in the application for an order for the substituted service of the writ, the plaintiff did not know the whereabouts of the defendant and a search at the Probate Registry of the High Court had returned nil result.  The plaintiff obtained an order for substituted service of the writ.

5. Before the writ was served, the plaintiff realised a typographical mistake in the Chinese name of the defendant on the writ.  He amended the writ (pursuant to Order 20, rule 1) and obtained another order from the Registrar to effect service of the amended writ on the defendant by way of advertisement.  In pursuance of the order, an advertisement was inserted in a Chinese newspaper on 24 January 2013 and the defendant had 14 days to acknowledge service.  No acknowledgement of service was, however, filed.

6. Given the nature of the claim herein (ie declarations), the plaintiff was directed by Order 13, rule 6 to proceed with the action as if the defendant had given notice of intention to defend, after filing an affidavit proving due service of the writ.  The defendant did not file any defence and the plaintiff took out the present summons for judgment.

7. The summons was served by means of substituted service in pursuance of another order dated 14 November 2013.  Nonetheless, the defendant is absent at this hearing.

8. Order 19, rule 17(1) provides that: “… on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”  The editors of Hong Kong Civil Procedure 2014 have noted in §19/7/11 that: “The court cannot receive any evidence hereunder, but must give judgment according to the pleadings alone (Smith v Buchan (1888) 58 LT 710; Young v Thomas [1892] 2 Ch 135, CA).  It is therefore not necessary on the hearing of the summons or motion for judgment to prove the case by evidence (Webster v Vincent (1898) 77 LT 167).”

9. According to the statement of claim, the plaintiff’s case is that:

(a) “The Defendant is at all material time the registered owner of [the Land]…”

(b) “In or about the 1940s, [the plaintiff’s father] resided in a deserted house built on the Land.”

(c) “[The plaintiff’s father] continued to reside in the house with his family including the Plaintiff without the consent approval and/or authority of the Defendant and/or his agent(s).”

(d) “Since birth in 1952, the Plaintiff has been residing in a house (“the House”) built on the Land…”

(e) “Whilst still residing in the Land, the Plaintiff then married to [the wife] and gave birth to three children, namely…”

(f) “The Plaintiff then used his own monies, refurbished the House and made it a 2-storey village house for the continued occupation, exclusive possession, and control of and has been residing openly in the Land, with [his father] and his family, and without the consent approval and/or authority of the Defendant and/or his agent(s).”

(g) “In the premises, since or about 1960s, [the plaintiff’s father] (who passed away on 6^th February 1995), had discontinued the Defendant’s possession of (inter alia) the Land and/or alternatively the Plaintiff and his family have been continuously and still are in exclusive possession of (inter alia) the Land.”

10. The plaintiff has further pleaded in §9 of the statement of claim that he has all along been paying for the rates, rubbish disposal fees, water and electricity charges relating to the Land.  He has undertaken maintenance and repair of the Land including the House.  The House is only accessible by means of the key(s) held by the plaintiff and his family, and the plaintiff has been the one to determine its use.  At no time, pleads the plaintiff, had his father or himself paid any rent, license fees or other sum for the possession of the Land or otherwise acknowledging the title of the defendant. 

11. Section 7(2) of the Ordinance presently provides that:

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

That section was amended in 1991 and, before that, the law stipulated a period of 20 years for the section to apply.

12. Under sections 8 and 13, time for the purpose of the Ordinance starts to run when the landowner has been disposed of his land or where he has discontinued use of his land, and the adverse possessor has taken possession of the land.

13. According to Mr Chan (counsel for the plaintiff), the plaintiff is relying on his own continued possession since 1952 since the plaintiff is unsure when his father first came to the Land.  As such, the relevant period should be 20 years.

14. In Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55, the Court of Final Appeal held that:

“35. 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. See the Court of Appeal decisions in England in R. v. Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade, J. in Powell v. McFarlane (1979) 38 P & CR 452.”

15. Based on the pleaded case of the plaintiff, I am satisfied that he has both factual possession of and the requisite intention to possess the Land since 1952, ie for more than 20 years before the commencement of this action.

16. It has been said that it is not the normal practice of the court to make a declaration without a trial.  However, the editors have observed in §19/7/20 that this is only a rule of practice and should only be followed when the plaintiff can obtain the fullest justice to which he is entitled without the declaration he seeks.  Today, Mr Chan has taken me through the two cases cited by the editors, namely, Lam Shing Shou v Lam Hon Man, unreported, HCA 361/2001, 15 January 2002; and Lai Wai Kuen v Wong Shau Kwong, unreported, HCA 3424/2003, 12 November 2004, and I satisfied with that proposition.  In the circumstances of this case, I am satisfied that the plaintiff will not obtain the fullest justice to which he is entitled without the declarations he seeks.

17. For the above reasons, I make the declarations prayed in the statement of claim, namely:

(a) A declaration that the defendant has lost the right to bring any action to recover the Land.

(b) A declaration that the defendant’s title to and interest in the Land or any part thereof have been extinguished.

(c) A declaration that the plaintiff has established a possessory title and acquired all the estate, right, title, interest and benefit including inter alia the ownership and the right to exclusive possession and control, and physical occupation of and in the Land, and is accordingly entitled to be registered as the owner of the same in the Land Registry.

18. The plaintiff is not seeking costs and I make no order on the costs of the action.