LAW FUNG v. The estate of LIU HOI MAU, deceased

DCCJ 6700/2020

[2022] HKDC 626

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6700 OF 2020

________________________

________________________

________________________

J U D G M E N T

________________________

Introduction

1.  This is the trial of the plaintiff’s claim for adverse possession in relation to a portion of The Remaining Portion of Sub-Section 1 of Section A of Lot No. 289 in D.D. 52, North, New Territories, Hong Kong.  To avoid confusion, the entire Remaining Portion of Sub-Section 1 of Section A of Lot No. 289 will be referred to as “the Subject Lot”, while such portion of the Subject Lot that the plaintiff claims adverse possession will be referred to as “the Disputed Area”.

2.  For identification purposes, the Disputed Area is coloured pink on Plan I annexed to this Judgment (“Plan I”)[1]. The red lines on Plan I mark the boundaries of the Subject Lot. 

3.  Mr Liu Hoi Mau (廖開茂, “Liu”)  has been and still is the registered owner of the Subject Lot. It appears from a Death Certificate produced to the court that he died on 6 May 1972, a fact that I fully accept.  However, notwithstanding the time elapsed since his death, there does not appear to be anyone who administers his estate (the “Estate”). 

4.  It is therefore unsurprising that there is no one to represent the Estate in this action and at the trial.  Indeed, by the Order of Master Jocelyn Leung dated 7 June 2021, the official solicitor was appointed to represent the Estate but limited to the purpose of accepting service of the Amended Writ herein only.  Furthermore, by the Order of Master Maurice Lam dated 21 July 2021, the proceedings herein shall be proceeded with in the absence of a person presenting the Estate, and any judgment or order given herein shall bind the Estate to the same extent as it would have been bound had a personal representative been made a party.

Pleading points

5.  At the start of the trial, I raised my concerns with Mr Jonathan Tsang, counsel for the plaintiff, concerning the plaintiff’s pleaded case.  In short, the plaintiff has pleaded in the Statement of Claim that she and her family have been in adverse possession of the Disputed Area (§§5, 8).  There are also references that the plaintiff and her family have not been disturbed by the paper owner in terms of their exclusive possession, use and enjoyment of the Disputed Area (§6), and none of the plaintiff and her family obtained permission from the paper owner for their possession of the Disputed Area nor have they paid rent (§7).  The concern is that the plaintiff is running a case of joint possession by herself and her family.  In this situation, as a matter of law, the plaintiff as one of the joint squatters cannot claim title alone: Adverse Possession by Jourdan QC (2^nd edition)  §20-68.

6.  Upon clarification, Mr Tsang informed the court that the plaintiff is not running case of joint possession, and the plaintiff asked for leave to amend the Statement of Claim.  Having read the proposed changes handed up to the court after a short adjournment, I gave leave to the plaintiff to amend.  The net effect is that references to “the Plaintiff’s family” are taken out.  Since the defendant has not taken part in these proceedings at all, I am satisfied that there is no prejudice caused by the amendment.

The plaintiff’s case

7.  The plaintiff’s case may be summarised as follows:-

(1)  In 1968, Liu became the registered owner of Sub-Section 1 of Section A of Lot No. 289 in D.D. 52 (“Lot 289A1”).  In 1971, he caused Lot 289A1 to be sub-divided into 2 portions, and assigned one of those portions (being Section A of Sub-Section 1 of Section A of Lot No. 289 in D.D. 52, “Lot 289A1A”)  to the plaintiff.  Liu remained to be the registered owner of the remaining portion (ie the Subject Lot);

(2)  On 28 March 1972, the Government resumed a portion of Lot 289A1A.  Afterwards, the plaintiff continued to be the registered owner of the un-resumed portion (“Lot 289A1A RP”).  This is coloured yellow on Plan II annexed to this Judgment (“Plan II”)[2];

(3)  As mentioned above, Liu passed away on 6 May 1972;

(4)  By way of certain exchange of lots with the Government, in 1974 the plaintiff also became the registered owner of Lot 1660 in D.D. 52 (“Lot 1660”). This is coloured green on Plan II.  A 2-storey house was erected in around 1977-1978 on the entirety of Lot 1660 which the plaintiff and her family occupied as their family home;

(5)  In around 1978, since the plaintiff noticed that the Subject Lot was a piece of vacant land, the plaintiff started to occupy the Disputed Area primarily for farming.  This was done without the consent of Liu or the Estate, and no payment was made to Liu or the Estate;

(6)  In around 1980, the plaintiff erected boundary iron fences, enclosing the Disputed Area, a portion of Lot 289AIA RP, Lot 1660 and some government land as if these form a single lot.  The relevant government land is coloured brown on Plan II.  The boundary fences and the iron gate (for entrance)  are respectively coloured purple and orange on Plan II.  Subsequently a further fence was erected to separate the Disputed Area (which was used primarily as a farmland)  from the other areas to prevent the dogs kept by the plaintiff from causing damage to the vegetables and plants cultivated in the Disputed Area, with a wooden gate installed for access.  This additional fence and the wooden gate are respectively coloured pink and red on Plan II;

(7)  In about 1983, the plaintiff built a structure using wood and metal sheets on the enclosed government land.  This is marked “TS” in the brown area on Plan II and was used as a kitchen and for storage.  It was later converted into domestic use;

(8)  The plaintiff has continued her occupation of and residence at the Disputed Area (together with the neighbouring areas as described above)  up until now and has throughout settled the relevant utility bills and government rates.

Analysis

8.  The plaintiff gave evidence and adopted her witness statement prepared for this action.  She also clarified that when she adversely possessed the Disputed Area, she did so in her own capacity but not for others.

9.  The plaintiff further relies on the expert surveying evidence of Mr Eric Tang Sze-kin, which I previously gave leave to the plaintiff to adduce without the need to call the expert to give oral evidence.

10.  I have no difficulty in accepting the plaintiff’s evidence in full.  I also accept the expert evidence of Mr Eric Tang.  I note that the plaintiff’s evidence over her erection of fences and historical usage is largely supported by Mr Eric Tang’s expert evidence.

11.  The legal principles of adverse possession are well-established and there is no need for me to repeat them.  Suffice it to say that I am satisfied that the plaintiff has been in continuous exclusive possession of the Disputed Area with the requisite intention to possess for more than 20 years before the commencement of these proceedings.  In other words, I am satisfied that the plaintiff has sufficiently proved her claim.

Conclusion

12.  Accordingly, I make the following declarations:-

(1)  The plaintiff has been in adverse possession of the Disputed Area for a continuous period of not less than 20 years immediately prior to the commencement of these proceedings;

(2)  The rights of the defendant to recover the Disputed Area has become time-barred under the Limitation Ordinance (Cap 347), and that the defendant’s title to the Disputed Area has been extinguished;

(3)  The plaintiff has acquired a possessory title to the Disputed Area.

13.  I will further make an order that costs of this action, including all costs reserved, be to the plaintiff to be taxed if not agreed, with certificate for counsel for the trial before me.

Plan I

Plan II