Tsui Kin Wah v. Chung Yung Shang

DCMP 1241/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1241 OF 2015

--------------------

-------------------

-------------------

DECISION

1.This is an application by way of Originating Summons for declaratory reliefs for the plaintiff’s adverse possession claim against the defendant in respect of the Property.

2.The defendant has not filed an acknowledgement of service and is absent today.  In light of the plaintiff’s affirmations of service, I am satisfied with the service of these proceedings and proceed to hear the Originating Summons in the defendant’s absence.

3.The Plaintiff has filed an affirmation with various exhibits setting out the background to the present application, the long and short of which is as follows.

4.The plaintiff has since 1967 been the registered owner of Lot No. 612 in D.D. 1, Lamma Island (“Lot 612”), which is immediately adjacent to the Property the registered owner of which is the defendant.  Since 1967, the defendant has never appeared in or near the Property and the plaintiff has never met or been acquainted with the defendant.

5.Prior to 2002, there were 3 single-storey houses erected on Lot 612 (“House A”, “House B” and “House C” respectively) and one single-storey house on Lot 611 (“House D”), the remainder of Lot 611 being open ground.  All 4 houses were uninhabited back then.

6.In 2002, House D collapsed, resulting in the collapse of House C because of domino effect.  The plaintiff then commissioned a contractor to rebuild, on his own fund and without interference by anyone including the defendant, the collapsed houses by joining Houses A, C and D together with the open ground on Lot 611 to become one new single-storey house (“House E”) which occupies the whole of Lot 611 and part of Lot 612 and adjoins House B.  The plaintiff was the only person having keys to House E and had used House E as a warehouse prior to his retirement.

7.As House E was used as a warehouse, the plaintiff did not arrange electricity and water supply to the same until late 2006.  In mid 2011, the plaintiff commissioned the same contractor to build an extra storey on House E so that the house has since comprised two floors.

8.Since 2007 up to now, the plaintiff has as landlord rented out to various tenants House E, initially as a single-storey house and subsequently the separate floors thereof.  I do not propose to repeat the plaintiff’s detailed account of the various tenancy agreements as evidenced by the exhibits to his affirmation. 

9.The original address for both House B and House E was No. 30 Tai Peng, Lamma Island until the Rating and Valuation Department altered the address for House E to No. 31A in January 2014.

10.The plaintiff has been solely responsible for paying rates and government rent for the Property.

11.Since 2002 to the present day, the plaintiff has continuously been in exclusive possession of the Property and the defendant has never claimed interest in the Property or demanded for any rent from the plaintiff.

Legal Principles

12.I gratefully adopt the summary of the relevant principles by Deputy Judge Grace Chan in GTRPET SMF, LLC v Global Way Logistics Limited (DCMP 482/2012), unreported, 2 April 2012 in the following terms:

“ 18. …Mr Fung for the Plaintiff has rightly referred me to the case of Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594 in which Deputy Judge A Cheung (as he then was) held that a court can proceed to deal with the originating summons in the first hearing in the absence of a defendant. The learned Judge says the following in his Judgment:

“Moreover, as I said, the proceedings were commenced by way of originating summons; therefore, O.28 apply to this case. Order 28 r.1 provides, amongst other things, that O.32 r.5 shall apply in relation to originating summons as they apply in relation to other summonses. Order 32 r.5 provides that where any party to a summons fails to attend on the first or any resumed hearing thereof, the court may proceed in his absence if having regard to the nature of the application, and it thinks it expedient so to do.” (emphasis added)

19. Under Order 28 rule 3 of the Rules of the District Court, matters of a originating summons can be dealt with at the first hearing if the facts are sufficiently clear and liability is established: See Titan Limited v Deng Zhishun, unrep., HCMP 4804/1999.

20. Mr Fung also refers me to the case of Wing Hang Bank Limited v Liu Kam Ying & Others, HCMP 2519/2001 in which Ma J (as he then was) commented that the substantive hearing of an originating summons could also be heard in chambers. The learned Judge…stated at para 7 this:

“While normally the substantive hearing of an originating summons should be in open court (see Hong Kong Civil Procedure 2002 at para.28/9/2), where, as in the present case, the plaintiff seeks a summary determination of the matter (akin to an application for summary judgment), the hearing can take place in chambers : see RHC, Order 28, rules 4(1), 9(1); International Bank of Asia Limited v. Kewpaisal Warranuch, unreported, 4 March 1999, HCMP1421/1998, Yuen J. The difference between an application for summary judgment under the originating summons procedure and an application for summary judgment under RHC, Order 14 is that the burden is not on the defendant in the case of the former: see International Bank of Asia Limited at pp.5S to 6A.” (emphasis added)

21. Due to the matters aforesaid, there is no doubt that this court can proceed to consider the Plaintiff’s application in the absence of the Defendant in the first hearing of this Originating Summons.”

13.Where declaratory reliefs are sought, the normal practice of the court is that a declaration would not be made without a trial but this is not an inflexible rule.  In Ho Kwai Chun v Lai Yu (DCCJ 916/2013), unreported, 3 July 2014, HH Judge Kent Yee has this to say:

“ 17. The normal practice of the court is that a declaration would not be made without a trial: Patten v Burke Publishing Co Ltd [1991] 2 All ER 821. There, Millet J (as he then was) further explained the nature of the practice as follows:

“… the rule is a rule of practice only. It is not a rule of law.  It is a salutary rule and should normally be followed, but it should be followed only where the claimant can obtain the fullest justice to which he is entitled without such a declaration.”

18. In Lai Wai Kuen v Wong Shau Kwong, unreported, HCA 3424/2003, 12.11.2004, Lam J (as he then was) also held that this long standing practice is not an inflexible rule. There, his Lordship granted declarations in respect of the plaintiff’s claim of adverse possession in an application under Order 19 rule 7, Rules of the High Court after having been satisfied that the plaintiff had a genuine need for the declaratory relief and such relief was justified on the merits.”

14.On the evidence of the plaintiff which is not subject to any challenge, I am satisfied that the plaintiff has established the necessary elements for adverse possession of the Property and that he has a genuine need for the declarationssought.  Insofar as is necessary, I find the requisite animus possidendi on the plaintiff’s part readily inferable from the way the plaintiff has dealt with the Property as aforesaid.

15.That said, I am not prepared to grant an order also sought by the plaintiff for his name to be entered in the register of the Land Registry in substitution for that of the defendant.  In this connection, I respectfully subscribe to the view expressed in Tsang Cho Kiu v Lam Tsat Fuk (HCMP 1077/2013), unreported, 10 December 2013 where Mr Recorder Jat, SC, having referred to the following observations of the Court of Appeal in Wong King Lim v The Incorporated Owners of Peony House (CACV 3/2012), unreported, 29 May 2013, expressed doubt as to jurisdiction and declined to grant such an order on merits:-

“ 15. In judgment para.33.2, Yuen JA (with whom Lam JA and Au J agreed) noted that:

“It is important not to confuse land with title. Land A remained subject to the covenant in favour of land B, even though the title of the owner of land A had been extinguished by the squatter’s adverse possession. Thus Collins MR held [in Re Nisbet and Potts’ Contract [1905] 1 Ch 391] at p.402 that the whole (meaning the entirety of the) right the squatter acquires under the statute of limitations is the extinguishment of a title adverse to his own, and nothing else.” (original emphasis)

16. Lam JA (as Johnson Lam VP then was) separately observed in judgment para. 37 that:

“Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather v St Marylebone Property [1963] AC 510. As observed by Keith J in Chung Ping-kwan v Lam Island Development [1995] 2 HKLRD 228 at p.235, “the squatter’s possessory title was an independent title …” The title of the squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the Limitation Ordinance by dispossession for the requisite period of time. In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter. It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter. This outcome vividly demonstrates the proposition that 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.”

17. In my judgment, these principles apply to the present case. Mdm Tsang has established a possessory title as against the paper owner; but it does not follow that she is entitled to be substituted as owner in the Land Registry records.

18. Nor do I see any merit in the point advanced by Mr Lam that substituting Mdm Tsang’s name on the Land Register would be helpful to the public. Once the judgment in this action granting the declarations as to Mdm Tsang’s possessory title is registered against the Property, any member of the public who may wish to know whether there is any encumbrance against the Property would be able to see it for him/herself.”

16.I make an order in terms of paragraphs 1 to 3 of the Originating Summons with declarations to the effect that:

i. the defendant’s title in respect of the Property has been extinguished and the defendant be debarred from taking any action against the plaintiff to recover the Property; and

ii. the plaintiff has acquired a good possessory title to the Property.

Mr Kay K W Chan instructed by Au & Associates for the plaintiff

The defendant was not represented and did not appear