Wong Kwong Chuen v. The Estate of Law Wai-hing, Deceased

HCMP 2292/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2292 OF 2015

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J U D G M E N T

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1.By this Originating Summons the plaintiff (Mr Wong) claims a declaration that the title of the defendant or any successor in title to the defendant, to the land registered in the Land Registry known as Lots No 2833 and 2834 in DD 116, Yuen Long, New Territories, (Madam Law’s property) has been extinguished. Mr Wong further claims an order that his name be entered in the Register of the Land Registry as the registered owner of Madam Law’s property.

2.By an order made on 19 October 2015, the Official Solicitor was appointed to represent the estate of Madam Law Wai Hing, deceased, for the purpose of accepting service of the Originating Summons.  A search of the Probate Registry has revealed no application for a grant of probate by any person in respect of the estate of Madam Law.

3.In addition to service on the Official Solicitor, substituted service has been duly effected by advertisement in the Oriental Daily News.  There has been no response to that substituted service.

4.The evidence establishes that Madam Law acquired Madam Law’s property in April 1966.  Mr Wong’s mother had purchased an adjacent property, Lot No 2831 in DD 116, Yuen Long, New Territories, in June 1962.  Subsequently, Mr Wong’s mother rented an adjacent lot, Lot No 2832.  I shall refer to Lot’s 2831 and 2832 as the mother’s property.

5.Mr Wong says that when he was about three or four years old Madam Law moved to live next door to him and his mother and Madam Law became very good friends with his mother.  Mr Wong knew Madam Law as a single woman with no children.  Mr Wong said that he understood from his mother that she had invited Madam Law to come and live closer to her so that they could look after each other. 

6.Not surprisingly, in those circumstances, Mr Wong came to know Madam Law very well, and I can quite understand why he said that Madam Law treated him as if he were her son.  Both Madam Law and Mr Wong’s mother raised and sold chickens from their respective properties until about 1984 or 1985. 

7.Madam Law died, aged 79 on 30 October 1988, over 27 years ago.  At the time Mr Wong was 26 years old.  Mr Wong and his mother assisted in all funeral matters in respect of Madam Law.

8.Following Madam Law’s death, Mr Wong and his family took steps to clean up Madam Law’s property.  Madam Law’s property was then left vacant.  Mr Wong’s mother died in May 1989 and his father in March 1990.  After their death Mr Wong came to be the only person to use and occupy the mother’s property.  His evidence, unchallenged, was that he lived, with his brother, in a public housing unit in Kwai Chung and went to the mother’s property during weekends.  During this time he noticed that nobody was using Madam Law’s property.

9.In 1992, Mr Wong’s brother got married and Mr Wong moved from the Kwai Chung unit to allow the brother’s wife to move in.  Mr Wong then moved to the mother’s property as his everyday home.  He noticed that Madam Law’s property was still vacant and at no one came to claim ownership or to occupy the property.

10.In about 1992 Mr Wong began to use a small house on the property as a store room to store personal items and to treat the property as being owned by him to the exclusion of anyone else.  Previously, both the mother’s property and Madam Law’s property were surrounded by an iron wire fence to which there was an entrance door at Lot 2832, (part of the mother’s property).  In 1992 Mr Wong changed the locks of that door and became the only person who had keys giving access to the mother’s property and Madam Law’s property.  From that time on, Mr Wong was the only person who had access to the mother’s property and to Madam Law’s property.

11.In 2002, the iron wire fencing on the outer boundary collapsed and Mr Wong undertook repairs at his expense.  In 2008, a small house which had been used by Madam Law as a chicken shed, collapsed and Mr Wong cleared up the debris and rubbish.  He has subsequently maintained the fences, installed a new metal gate, and has used Madam Law’s property as his own since 1992.

12.I am satisfied on the evidence that since 1992, Mr Wong has had continuous use and occupation of Madam Law’s property to the exclusion of Madam Law and any person who might be entitled to claim under her.

13.The originating summons was issued on 21 September 2015.  By virtue of s 7(2) Limitation Ordinance (Cap 347), (LO) the relevant period of limitation is 12 years from the date on which the right of action accrued.  I am satisfied that, at least by 31 December 2004, Madam Law’s right of action to recover the property has expired.  By virtue of s 17 LO, at the expiration of the period to bring an action to recover land, the title of that person to the land is extinguished.

14.Although it is not the normal practice of the court to make a declaration without trial, it is not an inflexible rule.  I am satisfied that the court should grant a declaration if a plaintiff has a genuine need of the declaration sought.  I am satisfied on the affidavit evidence that the declaration sought is necessary for the purpose of Mr Wong proving his interest in the property. 

15.I am satisfied that Mr Wong is entitled the declarations sought and I accordingly make an order in terms of paragraphs 1-4 inclusive of the originating summons dated 21 September 2015.

16.There will be no order for costs.

Mr Simon Wong, instructed by Tang, Lee & Co, for the plaintiff

The defendant in person, absent

The official solicitor, the appointed representative of the defendant, absent