Pang Ma Fook and Another v. Pang Yu Fat also known as Pang Yi Fat

DCCJ3192/2015

CIVIL ACTION NO 3192 OF 2015

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REASONS FOR DECISION

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1.This is the plaintiffs’ application by summons filed on 28 December 2015 for judgment against the defendant in default of defence.

2.The plaintiffs claim that they have been in adverse possession of the defendant’s land for more than 20 years. By this action, commenced on 10 July 2015, they claim against the defendant for declarations on the ground of adverse possession, and that the defendant’s title to his land had been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap. 347.

3.I am satisfied that valid service of the Writ of Summons together with the Statement of Claim and the present summons was effected on the defendant by way of substituted service.  The defendant is absent at today’s hearing.

4.There being no defence filed by the defendant, the plaintiffs ask for the declarations sought in the summons, based upon the pleadings and without the court hearing any evidence from the plaintiffs to prove their case under Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court.

Background

5.The Land Registry records show that the defendant has been the registered owner since 21 February 1907 of the land registered as Lot No 136 in Demarcation District No 84 (“the Defendant’s Land”).  The plan of the lot attached to the Statement of Claim shows that it is a rectangular piece of land of an area of 1,330.9 square metres.

6.According to the affirmations filed by the plaintiffs earlier in this action in the application for an order of substituted service of the Writ, the plaintiffs did not know the whereabouts of the defendant, or whether he is alive or dead.  Searches conducted in July 2015 at the Births and Deaths Registry of the Immigration Department and the Probate Registry on the defendant of the Chinese name of (彭義發) (male) rendered nil results.

7.The plaintiffs’ pleaded case per the Statement of Claim is as follows:-

(a) The plaintiffs are brothers and were born in 1946 and 1953;

(b) They had been residing with their parents at Tai Po Tin Lot No 16A in Demarcation District No 84 (“the plaintiffs’ house”);

(c) The plaintiffs’ house and another landed property at No 23 in Demarcation District No 84 are both owned by the plaintiffs by virtue of a Succession to Property dated 2 May 1983.  These properties are in close proximity to the Defendant’s Land; 

(d) The plaintiffs’ parents farmed on the Defendant’s Land.  The plaintiffs helped in the farming in the 1960s when they were teenagers.  The farming activities on the Defendant’s Land continued without interruption until about 1975 when their father passed away;

(e) Since about 1975, the plaintiffs’ mother, whilst continuing to farm in a portion of the Defendant’s Land, let the rest of the Defendant’s Land to a tenant who fenced off the area let to him and used it as a poultry farm.  The tenant paid rent to the plaintiffs’ mother in the sum of about HK$200 per annum during his uninterrupted use and occupation of the portion of the Defendant’s Land until 1990;

(f) In about 1990, the tenant left and delivered possession of the portion of the Defendant’s Land to the plaintiffs’ mother.  They then fenced off the entirety of the Defendant’s Land and locked it with a gate.  The Defendant’s Land had ever since become only accessible by unlocking the gate with the keys held by the plaintiffs;

(g) The plaintiffs have since about 1990 had uninterrupted, continuous and exclusive use, possession and control of the Defendant’s Land;

(h) The plaintiffs and/or their predecessors in title have never paid any rent or licence fees to the defendant or anyone claiming or deriving title from him; 

(i) The plaintiffs and/or their predecessors in title have all along been responsible for payment of Government rent and the repair and maintenance costs and expenses in respect of the Defendant’s Land;

(j) In or about early 2015, the plaintiffs renovated the metal wire fences that enclosed the whole of the Defendant’s Land and rebuilt a new gate thereon, and locked, with the keys held by the plaintiffs;

(k) The plaintiffs have been at all material times since 1960s and until now having exclusive use, possession, control and occupation of the Defendant’s Land by themselves or through their predecessors in title.

8.The plaintiffs claim that they have through their predecessors in title acquired the right and interest in the Defendant’s Land by adverse possession for a continuous period of not less than 20 years before the commencement of this action.  The defendant’s title, right and interest in the Defendant’s Land had been extinguished.

Discussion

9.The affirmations of service show that the Defendant’s Land was noted to be “a bare site without any structure or house built therein and without any sign of human occupation” at the time of service of these proceedings on 31 July 2015.

10.It is not clear from the Statement of Claim what has become of the Defendant’s Land in the past 20 odd years since 1990 after the tenant delivered possession of the Defendant’s Land and left.  Despite the plaintiffs’ claim of exclusive use, possession, control and occupation of the Defendant’s Land, no particulars are provided in the Statement of Claim on the alleged use of the Defendant’s Land by the plaintiffs since about 1990 or the purposes of fencing off the area.  The present evidence is that it is barren and unoccupied.

11.Plaintiffs’ counsel Ms Chan explains in court that there are actually two buildings/structures on the Defendant’s Land as shown and marked by two dotted rectangles on the plan of the lot annexed to the Statement of Claim.  These were the farm houses used for the tenant’s poultry business before 1990.

12.This begs the question what purposes or use these two buildings/ structures would have for the plaintiffs in the past 20 odd years when the poultry business had ceased and the tenant had left according to their pleaded case.  It is clear that the plaintiffs never resided in the Defendant’s Land. The present evidence is that the Defendant’s Land is barren and unoccupied – this does not sit comfortably with the explanation put forward by the plaintiffs’ counsel in court that the buildings/structures might be shielded or not visible from outside or by looking at one end.

13.It is further revealed at the hearing that in fact the plaintiffs have in the past 10 years left Hong Kong and have been living in England.  Ms Chan later clarifies that the plaintiffs have not emigrated, but have been working in England and regularly coming back to Hong Kong.

14.Ms Chan submits that though the plaintiffs did not live on the Defendant’s Land and despite their departure, they have retained continuous and exclusive possession and control of the Defendant’s Land.  The gate of the fences around the Defendant’s Land remains locked, to which only the plaintiffs can have access with the keys held by them.

15.To the court’s query regarding the use by the plaintiffs or purposes of fencing off the Defendant’s Land, Ms Chan reminds the court of the plaintiffs’ pleaded case that all along they have had the responsibility of paying the Government rent and repair/maintenance of the Defendant’s Land.  She adds that the plaintiffs must have had use of the Defendant’s Land otherwise they would not have repaired/ maintained it. 

16.These are unexplained matters which will need to be looked into, and the supporting evidence canvassed.  The court will have to be satisfied that adverse possession by the plaintiffs against the defendant is established before the declaratory reliefs sought can be granted.  The Statement of Claim lacks the requisite particulars to establish whether the plaintiffs have uninterrupted and continuous exclusive use and occupation of the Defendant’s Land after 1990 for more than 20 years.  Given the plaintiffs have left Hong Kong in the past 10 years, the adverse possession claimed should be subject to scrutiny.

17.The court’s power to grant judgment under Order 19 rule 7 is discretionary and not mandatory. See Hong Kong Civil Procedure 2016 Vol. 1, 19/7/13.

18.In the circumstances of this case, the court is reluctant to grant the declarations sought without hearing evidence from the plaintiffs to prove their case.  Reference is made to the decision in Top One International (China) Property Group Company Limited & Another v Top One Property Group Limited & Others HCA 1244/2009 (unrep Fok J (as he then was) 9 December 2010) at paragraphs 83 & 85:-

“83. In my view, notwithstanding Mr Lam’s persuasive submissions, it would not be appropriate to grant the declaratory relief sought by way of default judgment. In the absence of a judgment reached after hearing evidence, a declaration could be based only on unproved allegations and the court ought not to declare as fact that which might not have proved to be such, had the facts been investigated: Wallersteiner v Moir [1974] 1 WLR 991 per Buckley LJ at p.1029 and Patten v Burke Publishing Co. Ltd [1991] 1 WLR 541 per Millett J (as he then was) at p.544A.

85. In the circumstances, I decline to grant the declaratory relief sought by the plaintiffs by way of default judgment.  This does not, of course, mean that the plaintiffs cannot obtain the declarations, it merely means that they will have to prove their entitlement to them after adducing evidence in the usual way.”

19.These principles were quoted and applied in the decision of Mr Registrar Lung in Fung Shek Wa v Chang Lai Yue HCA 2258/2013 (unrep 18 September 2014), in which the plaintiff’s application in default of defence for declarations by way of adverse possession was refused.  The decision was affirmed on appeal in the judgment of DHCJ B Chu (as she then was).

20.In the present case, the Statement of Claim as pleaded lacks the requisite particulars in support and fails to establish a case of exclusive possession, use and occupation of the Defendant’s Land for the alleged long period of time.  It is in my view not appropriate for the court to exercise her discretion to grant the declaratory reliefs sought in default of defence.  I consider the plaintiffs should prove their case in the usual way through trial.

Order & Costs

21.In the circumstances, I dismiss the plaintiffs’ application.

22.I further order that there will be no order as to costs of this application, including the hearing today, as the defendant is absent.

Ms Sheena Chan, instructed by Choi & Liu, for the plaintiffs

The defendant was not represented and did not appear