Chan Michael v. The Personal Representative of Tam Siu Fung, Deceased

HCMP 745/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 745 OF 2015

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DECISION

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Introduction

1.This is a claim for adverse possession.  Tam Siu Fung (“the Deceased”) was the registered owner of a property known as Flat 27 on 12^th Floor, Chung Ying Building, No 163 Tai Kok Tsui Road, Kowloon, Hong Kong (“the Property”).  The plaintiff claims that he has been in adverse possession of the Property since about 1995.

The procedure

2.On 1 April 2015, the plaintiff commenced these proceedings by originating summons.  On 15 March 2016, Master Chow ordered that the Official Solicitor be appointed to represent the estate of the Deceased for the limited purpose of accepting service of the Originating Summons.  On 23 February 2017, Master Ho ordered that the plaintiff be at liberty to proceed with the proceedings herein against the defendant in the absence of any person representing the estate of the Deceased and that service of court documents be effected by advertising notice of these proceedings in Ming Pao.  On 28 February 2017, the plaintiff issued a Notice of Appointment to hear Originating Summons.  A notice of this hearing was posted in Ming Pao on 17 March 2017.

3.The probate search conducted by the plaintiff’s solicitors shows that no grant of probate or administration has been made in respect of the Deceased’s estate.  To the plaintiff’s knowledge, the Deceased did not have any children.  No surviving relative of the Deceased known to the plaintiff is willing to represent the estate of the Deceased.

4.In effect, the defendant is regarded as being absent.  It is clear that the court has power at the hearing of an originating summons under Order 28, rule 4, Rules of the High Court, to dispose of the action summarily where there are no triable issues, and that such a summary judgment application may be heard in chambers (open to public).  Although the matter is uncontested, the burden remains on the plaintiff to satisfy me that he is entitled to summary judgment.  (See Choy Pui Lam v The Personal Representative of the Estate of Chan Yim Mei, deceased HCMP 313/2015 (30 March 2017, unreported), §§6 – 7.)

Analysis

5.The affirmation evidence given by the plaintiff may be summarized as follows:

(a)  He was born on 3 August 1937.

(b)  His fourth elder brother is Chan Kwok Chen, and the Deceased was his wife.

(c)  Chan Tsang Kai was the nephew of the plaintiff and Chan Kwok Chen.

(d)  On 8 July 1966, the Deceased and Chan Tsang Kai acquired the Property as tenants in commons at $21,566.00.  It was used as the matrimonial home of Chan Kwok Chen and the Deceased.

(e)  On 9 February 1976, by a deed of gift, Chan Tsang Kai assigned his share of interest in the Property to the Deceased.  The Deceased became the sole registered owner of the Property.

(f)  On 13 February 1976, the Deceased made a will bequeathing all her property to Chan Kwok Chen.

(g)  However, on 17 October 1977, Chan Kwok Chen passed away.

(h)  Shortly after that on 29 November 1977, the Deceased passed away.

(i)  Before the Deceased died, she had granted oral licences to her fellow villagers to use the Property.

(j)  They continued to do so after the Deceased’s death.  The plaintiff had repeatedly asked these fellow villagers to vacate the Property as he intended to take possession for letting purpose.  He had all along kept the key to the Property.

(k)  After the fellow villagers ceased to use the Property, since about 1995, the plaintiff came into possession thereof.

(l)  Since then, he has been renting the Property to various tenants up to the present.

(m)  On 21 May 2001, Chan Tsang Kai passed away.

6.The plaintiff has produced miscellaneous documentary evidence to support his case, including rental receipts since about April 1995, tenancy agreements, demands for rates, electricity bills, receipts for management fees.  On a balance of probabilities, I accept the plaintiff’s evidence.

7.The laws concerning adverse possession are trite and need not be repeated here.  Upon the death of the Deceased, the licences that she had granted to the then occupants would be terminated automatically (LauSiu Kwong David and others v The Personal Representatives of LeeOn Yuen, deceased HCA 10001/2000 (9 April 2001, unreported), p 4).  Irrespective of the position of the Deceased’s fellow villagers, the plaintiff started to rent the Property to various persons since about 1995.  In law, a claimant does not need to be in actual occupation of the property, and may rely on the occupation by his tenants (Cheung Yat Fuk v Tang Tak Hong & others (2004) 7 HKCFAR 70).  On the evidence, I am satisfied that the plaintiff has been in adverse possession of the Property through his tenants since about 1995.

8.Under section 7(2) of the Limitation Ordinance (Cap 347) (“the LO”), the limitation period is 12 years.  In this case, the limitation period expired in about 2007 and before the commencement of these proceedings.  Section 17 of the LO provides that, at the expiration of the limitation period, the title of the registered owner to the land shall be extinguished.  By virtue of these statutory provisions, I am satisfied that the legal title of the defendant to the Property has been extinguished in about 2007 by the plaintiff’s adverse possession of the Property since about 1995.

Conclusion and orders

9.In the circumstances, I shall grant the following declarations sought by the plaintiff:

(a)  that the defendant’s title to the property known and registered in the Land Registry as the Remaining Portion of Section B of Sub-section 1 of Section B of Kowloon Marine Lot No 28 together with the exclusive right to the use occupation and enjoyment of the whole of Flat 27 on 12^th Floor, Chung Ying Building, No 163 Tai Kok Tsui Road, Kowloon, Hong Kong (hereinafter referred to as “the said property”) has been extinguished pursuant to section 17 of the Limitation Ordinance, Cap 347; and

(b)  that the plaintiff has established a possessory title to the said property.

10.I make no order as to costs.

Mr Ernest Ng and Mr Kenwick Yam, instructed by Damien Shea & Co, for the plaintiff

The defendant was not represented and did not appear