Leung Pak Ki v. The Estate of Pang Kau, Deceased and Another

HCA 624/2009

ACTION NO 624 of 2009

__________________

__________________

__________________

J U D G M E N T
__________________

A. Introduction

1.The plaintiff, Leung Pak Ki (“Leung”), claims adverse possession of a piece of land.  This is his application for default judgment pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the High Court (Cap 4) (“the RHC”).

B. Background leading to this application

2.Pang Kau (“Pang”) and Lam Fuk (“Lam”) were the registered owners of All That piece or parcel of ground situate lying and being at Tai Po, New Territories, Hong Kong and registered in the Land Registry as Lot No 1195 in Demarcation District No 29 (“the Property”).  As pleaded in §§1–2 of the statement of claim dated 5 March 2009:

(a) Pang and Lam purchased the Property as evidenced by the “Sales of Crown Land by Public Auctions” on 2 July 1919.

(b) At the date of that public auction, a person could not become a registered owner of real property unless he was at least 21 years of age.

(c) Hence, Pang and Lam must have been at least 21 years old as on 2 July 1919.

(d) If Pang and Lam had lived to the date of the statement of claim, they would have been at least 111 years old.

(e) There was no person of such age living in Hong Kong as at the date of the statement of claim.

(f) Pang and Lam must have been dead as at the date of the statement of claim.

3.In the writ of summons, the estate of Pang and the estate of Lam were named as the 1^st and 2^nd defendants respectively.  By an order dated 23 July 2009, Master Levy ordered that the Official Solicitor be appointed to represent the estate of Pang and that of Lam solely for the limited purpose of accepting service of the writ herein.  By another order dated 22 April 2015, Master K Lo ordered that this action shall proceed in the absence of any person representing the estates of Pang and Lam.

4.On 15 January 2016, Leung took out a summons to apply for default judgment pursuant to Order 13 rule 6 and Order 19 rule 7 of the RHC on the ground that no defence has been filed.  I agree that this is the procedure that he may adopt in these circumstances (see Lau Siu Kwong David and others v The Personal Representatives of Lee On Yuen, deceased, HCA 10001/2000 (9 April 2001, unreported), pp 1–3).

C.  The correct approach

5.Leung made a second affirmation dated 14 January 2016 to support this application.  It is trite that in an application made under Order 19 rule 7, the court cannot receive any evidence but must give judgment according to the pleadings alone (Hong Kong Civil Procedure 2016, vol 1 §19/7/11 at p 472).  I have repeated this fundamental procedural point in my judgment in Biostime International Investment Ltd v Finance Heson Paper (HK) Co Ltd [2015] 2 HKLRD 658 at 661, §§7–8.  I also note that this procedural point was repeated in recent cases including Li Sau Sing v CTMA Holdings Ltd and others, DCCJ 4825/2014 (5 October 2015, unreported), §§6–7, pp 3–4; Tsui Ming Sin v Tsui Chi Ping and another, HCA 2550/2014 (2 February 2016, unreported), §§10–11, pp 3–4; Li Sau Sing v CTMA Holdings Ltd and others, DCCJ 4825/2014 (3 February 2016, unreported), §9, pp 5–6).  It is disappointing that legal practitioners still need to be reminded of such a fundamental procedural rule.

6.As Leung is seeking various declarations, it is pertinent to bear the relevant principles in mind (see, generally, Hong Kong Civil Procedure 2016, vol 1 §19/7/20 at p 473).  DHCJ Kenneth Kwok SC cited the relevant authorities in his recent judgment in Tsui Ming Sin v Tsui Chi Ping and another, HCA 2550/2014 (2 February 2016, unreported), §§13–15, pp 5–6.  The relevant principles may be summarized as follows:

(a) It is not the normal practice of the court to make a declaration without a trial.  In the absence of a judgment reached after hearing evidence, a declaration can be based only on unproved allegations and that the court ought not to declare as facts that which might not have proved to be such had facts been investigated.

(b) 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.

7.It is also necessary to consider the application of these general principles in the present context, namely, that Leung is claiming adverse possession of the Property.  In On Yip Property Development Co Ltd v Kwok Tai Kuen Alan, HCMP 3192/2013 and HCMP 3223/2013 (dealt with together) (15 April 2014, unreported), Cheung CJHC held at §8, p 4 that:

“… Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.”

8.What I wish to emphasize is that, in the normal course of events, Leung will need to prove his case by “cogent and sufficient” evidence although the standard of proof is on a balance of probabilities.  If I allow his present application, he will be absolved from such burden.  This is why I think it is crucial to examine the statement of claim carefully.

9.I appreciate that there are precedents in which the court has granted declarations for adverse possession by default judgments.  However, each case must depend on its own facts.

D.  Analysis

10.In the statement of claim, it is pleaded that:

(a) Leung was born on 9 February 1954 and is now 55 years old.

(b) In about 1955, his father, Leung Wing Kwong, alias Leung Yan Kwong, began to occupy the Property, which was then a derelict and unfenced piece of land, by erecting two small stone houses thereon for the purposes of rearing pigs and poultry.

(c) His father died in about 1963, since then his mother Cheung Ping Kiu took over the Property and continued with the exclusive control, possession and occupation of the Property and whereon she erected a wire fence and carried out agricultural activities including growing potatoes, guavas and figs.  He was nine years old and assisted his mother in farming the Property.

(d) His mother died in about 2002, since then he took over the Property and continued with the exclusive control, possession and occupation thereof.

(e) His parents had, and he has, respectively at their own costs and expenses improved and maintained the repair and condition of the Property from time to time since about 1955, and paid the Government rates in respect thereof.

(f) Since the occupation of the Property by his parents and him from about 1955, nobody has ever queried their right or title to use and occupy the Property or has asserted any title against any of them or made any demand on any of them in relation to the Property or the use of the same by any of them.

(g) By reason of the open, uninterrupted and exclusive possession and occupation of the Property by his parents and him since about 1955, which is adverse to the defendants, and by reason of the operation of section 17 of the Limitation Ordinance (Cap 347), he has acquired all the right, title and interest including the right to exclusive physical occupation of and in the Property.

11.I take the view that there are the following queries or ambiguities about Leung’s pleaded case:

(a) It is important to note that Leung is claiming adverse possession of the whole Property.

(b) Leung was born on 9 February 1954.  What he has pleaded in relation to his father entering into possession of the Property in about 1955 must be based on hearsay information.  More importantly, it is pleaded that the Property was at that time an “unfenced” piece of land.  However, the boundary of the Property is unclear and no plan has been attached to the statement of claim.  It is unknown where exactly the two houses that Leung’s father had erected were built within the Property and whether their boundary coincided with the boundary of the Property (which seems inherently unlikely).  And if the boundary of the houses did not coincide with the boundary of the Property, it is unclear on what factual basis it is claimed that his father had exclusive possession of the whole Property.  Insofar it is suggested that rearing pigs and poultry constituted acts of possession, it is unclear how such activities would assist in supporting that Leung’s father was in exclusive possession of the whole Property.

(c) Second, according to his pleaded case, his mother took over the Property in 1963 after his father died when he was only nine years old.  It is claimed that she erected a wire fence, and carried out agricultural activities.  However, it is unclear whether the fence was erected around the boundary of Property; and if not, on what basis it is claimed that his mother was in exclusive possession of the Property which lied outside such wire fence.  Insofar it is suggested that the agricultural activities carried out by his mother constituted acts of possession, it is unclear whether such activities took place on the whole Property.

(d) Lastly, he pleads that after his mother died in about 2002, he took over possession of the Property.  However, he has not provided any particulars of exclusive possession at all.  It is unclear whether he simply continued with the agricultural activities of his late mother.

12.Mr Chong submitted that, firstly, I should construe the relevant paragraphs in the statement of claim to mean that Leung’s parents and Leung himself were in exclusive possession of the whole Property.  For reasons explained above, I take the view that those paragraphs are, to say the least, ambiguous and are lacking in sufficient particulars.  Mr Chong also submitted that there is no evidence that anyone else was in exclusive possession of any part of the Property.  However, the burden is on Leung to satisfy the court, on the face of the pleading, that his parents and he himself were in exclusive possession of the whole Property.  The mere fact that nobody else was in possession of any part of the Property does not, by itself, support that his parents and he himself was in exclusive possession thereof.

13.Although I should not consider Leung’s affirmation evidence in considering whether he is entitled to the remedies claimed, I have taken into account his explanation as to why he commenced this action for the limited purpose of discerning whether he will suffer any injustice if I refuse his present application.  I am aware that Leung commenced this action because he intended to apply for a “Ding” House on the Property; and based on his experience, the District Land Office would require the applicant to own the land as registered owner before the application is entertained.

14.Mr Chong informed me that such application usually takes a long time, and Leung has not yet made any such application.  He admitted that there is no urgency in the matter.  I note that while the writ herein was issued on 5 March 2009, it was only on 15 January 2016 that Leung took out the present summons.  In particular, there was a lapse of about five years and nine months between the order of Master Levy made on 23 July 2009 and the order of Master K Lo made on 22 April 2015.  Even if one takes into account the time needed to overcome the procedural difficulties in this case, the rather long delay suggests that there is indeed no urgency in the matter.  I take the view that the long delay in pursuing the claim is a matter that I may take into account in considering whether to exercise my discretion in favour of Leung.

15.On the other hand, the reason given by Leung for commencing this action highlights the fact that he is likely to derive substantial financial benefits if his claim succeeds.  There is more the reason why I should be cautious in deciding whether to accept his unproved allegations in the statement of claim.

16.Having regard to all relevant circumstances, I have decided not to depart from the normal practice in this case.  Leung may, of course, continue to pursue his claim.  First, he may proceed to trial.  I would have thought that there might be evidence which may support his claim, for example, documents showing the payment of government rents for the Property, survey sheets, aerial photos, etc.  Alternatively, he may amend the statement of claim to address the concerns that I have raised, and then make a second application for default judgment (as in Li Sau Sing v CTMA Holdings Ltd and others, DCCJ 4825/2014 (3 February 2016, unreported)).  It is up to Leung to decide whether to proceed with his claim, and if so, how.

17.Lastly, I wish to comment on the prayer for relief in the statement of claim where Leung seeks the following relief:

“1. A declaration that:

(a) The 1^st and 2^nd defendants have lost the right to bring any action to recover any part of the Property by virtue of section 7(2) of the Limitation Ordinance (Cap 347);

(b) By virtue of section 17 of the said Ordinance, the title of the 1^st and 2^nd defendants, or of either of them, to any part of the Property had been extinguished and the Plaintiff has acquired all the right, title and interest including the right to exclusive physical occupation of and in the Property.

2. An order that all the estate, right, title and interest in the Property be vested in the Plaintiff;

3. Costs; and

4. Further or other relief.” (emphasis added)

18.I do not think it is appropriate to seek an order in terms of the words and phrases underlined.  Under the common law, a squatter does not succeed to or take over the title of the paper owner whom he has dispossessed; 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 (Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC 295 at 307A–D, §37).  I take the view that, if Leung succeeds in his claim, he should be entitled to a declaration that he has acquired a “possessory” title or an “indefeasible possessory” title to the Property (see Lai Wai Kuen v Wong Shau Kwong, HCA 3424/2003 (12 November 2004, unreported), §12, pp 4–5).

E. Conclusion

19.For the above reasons, I shall dismiss Leung’s application with no order as to costs.

Mr Matthew Chong, instructed by Rene Hout & Co, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear