YEUNG YIN WAN v. WAN KWAI KO AND ANOTHER

DCMP 2238/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2238 OF 2014

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JUDGMENT

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1.  This is the plaintiff’s application for a default judgment.

2.  The proceedings was commenced by an originating summons dated 21 August 2014, in which the plaintiff claims against the 1^st and 2^nd defendants for a declaration in respect of rights and interests in a property known as No 6 Kai Fong Garden, North District, New Territories erected on and registered in the Land Registry as Lot No 914 in Demarcation District 77, North District, New Territories (“the Property”)  on the ground of adverse possession under sections 7 and 17 of the Limitation Ordinance.

3.  The 1^st and 2^nd defendants are the registered owners of the Property.  According to the land search record, they have been the registered owner of the Property since 1960.

4.  There were two rounds of amendments to the originating summons, mainly to insert the Chinese name of the plaintiff on the heading, and to correct a typographical error on the address of the defendants as well as to specify the location of the Property with reference to a coloured plan.

5.  The plaintiff has made efforts to locate the 1^st and 2^nd defendants but all in vain. The plaintiff has enquired with the neighbours of the Property and no one knew the defendants.  The plaintiff has also made enquires with the village representatives of the Village in which the defendants’ last known address was located.  The village representative checked the ancestry chart of the Village and did not locate the names of the defendants.  The village representative also contacted representatives of the other districts of the Village, and they did not know the defendants.  Record search with the Probate Registry and death search with the Birth and Deaths Registry were conducted.  No records of the defendants were found from these searches.

6.  Substituted service of the amended originating summons issued on 11 May 2015 and re-amended originating summons issued on 26 August 2016 have been effected respectively by placing an advertisement of a Chinese notice of these proceedings once in the Sing Tao Daily News, a Chinese newspaper published and circulating in Hong Kong, on 14 September 2016.  The plaintiff has also left the amended originating summons and the re-amended originating summons on a conspicuous part of the Property.

7.  The plaintiff has confirmed by certificates that no acknowledgement of service and no notice of intention to defend have been received from the 1^st and 2^nd defendants.

Order 19 rule 7 not applicable

8.  The plaintiff asks for a judgment in default of defence under Order 19 rule 7 of the Rules of District Court.

9.  The applicable rule in the present case commenced by originating summons should, however, be Order 28 rule 6, which provides:-

“Where in a cause or matter begun by originating summons an application is made to the Court for an order affecting a party who has failed to acknowledge service of the summons, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party has so failed.”

10.  Order 19 rule 7 governs the situation where the defendant fails to serve a defence. This rule does not apply to proceedings begun by originating summons in which the defendant is not required to file a defence.

11.  The effect of Order 28 rule 6 is also that Order 13, which governs situation where there is a failure to give notice of intention to defend, is inapplicable in proceedings begun by originating summons (The Hong Kong Civil Procedure 2017 paragraph 28/6/1).

12.  I shall deal with the present application under Order 28 rule 6.

Relevant legal principles on adverse possession

13.  In the case of non-Government land, section 7(2) of the Limitation Ordinance provides that no action to recover land is allowed after 12 years from the date on which the right of action accrued.  If the cause of action to recover the Property accrued before 1 July 1991, the applicable limitation period would be 20 years instead of 12 years (section 38A of Limitation Ordinance).

14.  Time starts to run not simply when the land is unoccupied.  It starts to run when the landowner has been dispossessed of the land and the adverse possessor has taken possession of the land (section 8(1) of the Limitation Ordinance).

15.  The effect of a successful claim on adverse possession is that the paper owner’s title to land and his right to cover the land from the adverse possessor are completely extinguished (Section 17 of Limitation Ordinance).

16.  To establish a claim on adverse possession, the plaintiff must prove that he has both (1) factual possession, that is having a sufficient degree of exclusive physical control over the land; and (2) the requisite intention to possess (animus possidendi) the property to the exclusion of the owner and the world at large.  The above principles have been clearly enunciated by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire (2007) 10 HKCFAR 588, which adopted the principles set out in Powell v McFarlane (1977) 38 P&CR 452.

17.  Existence of factual possession is a question of fact, and it must be a single and conclusive possession that signifies an appropriate degree of physical control.  The degree of control required depends on the circumstances, in particular the nature of the land and the manner in which it is usually enjoyed (Powell v McFarlane, supra).

18.  Adverse possession has been described as "possession as of wrong", and the possession, to be adverse, must be wrongful and there is a dispossession of the paper owner (JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419).

19.  The squatter must prove that he has the required intention to possess, that is, "an intention for the time being to possess the land to the exclusion of all other persons, including the owner" (Buckinghamshire County Council v Moran [1990] Ch 623).

20.  The required intention must be determined objectively.  The intention to possess and to exclude the owners must be manifested unequivocally.

21.  There is a divergence of views between the English law (in Pye, supra) and Hong Kong law (in Wong Tak Yue v Kung Kwok Wai David, (1997-1998) 1 HKCFAR 55) in respect of how a court shall consider self-serving statement of the occupier as to what was his intention.  In Wong Tak Yue, the Court of Final Appeal held that a squatter’s intention to pay rent after the termination of tenancy would destroy the necessary intention to possess. In Pye, the House of Lords took the view that what was required was the intention to possess, not intention to own, the occupier’s willingness to pay for the occupation of the land did not matter provided that the occupier had the necessary possession and the intention to possess at all times.  This divergence is not relevant to this case in light of the facts here.

22.  Against these legal principles, I now turn to the facts of this case.

The plaintiff’s occupation and possession of the Property

23.  The plaintiff married to her late husband Lau Ting Choi (劉丁財), also known as Lau Choi (刘財) in the mainland in 1980.  She came to Hong Kong in 1985. 

24.  To the knowledge of the plaintiff, her late husband purchased the Property, which was then a wooden house, from a person named “Liu Ming” (not the paper owner) in July 1985.  A Chinese sale and purchase agreement dated 11 July 1985 was signed.  The wooden house was around 400 to 500 square feet and was surrounded by wire-mesh fencing.  Water supply and electricity meter were installed in the wooden house in 1986.

25.  The plaintiff and her late husband moved into the wooden house located at the Property in November 1985.  Since then, the plaintiff has been residing in the Property for over 20 years immediately prior to the commencement of these proceedings.

26.  The plaintiff has adduced a land surveyor report together with aerial photographs which show that house no. 6 has been erected on the Property at least since 20 September 1986 until now.  This corroborates with the plaintiff’s evidence of her occupation of the Property.

27.  During the time when the plaintiff was occupying the Property, she gave birth to her second daughter in 1987, her son in 1988 and her youngest daughters in 1989.  Together with her eldest daughter and her husband, the whole family lived in the Property continuously.   

28.  The plaintiff’s husband died intestate in 2004.  A letter of administration of the estate of the plaintiff’s husband was granted to the plaintiff in 2005.  After the death of the plaintiff’s husband, the plaintiff and her family members continued to reside in the Property. 

29.  The plaintiff has adduced a copy of her daughter’s birth certificate issued in 1989 and a copy of her late husband’s letter of administration issued in 2005.  These show that the family has been using the Property as their address.

30.  During her occupation of the Property, the plaintiff and her family have never paid, nor were they asked to pay, any rent to any one for their residence in the Property.  They paid the bills for the Property’s water, electricity and telephone utilities continually.

31.  It is the plaintiff’s evidence that no one has ever asked her or her family members to leave the Property.

32.  Over the years, the plaintiff has made improvement to the Property. In around 1995, the plaintiff and her family renovated the wooden house and changed it to a brick house.

33.  In around 2010, the plaintiff and her family renovated the fence, in particular the wire-mesh fencing has been replaced by corrugated sheet metal.

34.  The above fact show that the plaintiff has been in physical and continual possession of the Property to the exclusion of the defendants (the paper owners) for more than 20 years before the commencement of these proceedings.  Viewing it objectively, including the manner in which the plaintiff and her family have occupied the Property, I am satisfied that the plaintiff has the requisite intention to possess the Property to the exclusion of the defendants and the world at large.

Order

35.  I make the declaration in terms of paragraph 1 of the re-amended originating summons.  The plaintiff does not seek costs and there is no order as to costs of these proceedings (including this application) except that the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.  A certificate for counsel is granted.