Li Yuet Wan (in Both Her Personal Capacity and in Her Capacity As Personal Representative of the Estate of Leung Tze Man, Deceased) v. The Personal Representative of Wong Shiu Chui Formerly Known As Sun Wong Shiu Chui (Deceased)

DCCJ 2264/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2264 OF 2016

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JUDGMENT

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1.The plaintiff (“Madam Li”) claims possessory title to the property known as 2nd Floor, Sau Wa Court, 27 Sau Wa Fong, which was formerly known as Flat D on 2nd Floor of Nos 27-30 Sau Wa Fong, Hong Kong (“the Property”).

2.The registered owner of the Property is Sun Wong Shiu Chui, also known as Wong Shiu Chui (“Wong”).  Wong passed away on 6 November 1993.  The defendant in these proceedings is the estate of Wong (“the Estate”).

3.On 12 May 2016, Madam Li commenced these proceedings by issuing the writ of summons herein.  After commencing these proceedings, Madam Li applied for an order appointing the Official Solicitor to represent the Estate for the limited purpose of accepting the writ, for Madam Li and her solicitors had exhausted all and every means to try to locate any intended administrator(s) of the Estate, but all the attempts had been unsuccessful.  The court granted the order sought by Madam Li on 27 June 2016.

4.Thereafter, Madam Li applied for an order, inter alia, that Madam Li be at liberty to proceed with the present action in the absence of any person representing the Estate, and that service of any such summons, notice, order, judgment or document subsequently issued, given or made in the proceedings herein be dispensed with.  The court granted the order on 4 November 2016.

Madam Li’s case

5.Madam Li has given evidence in support of her claim.  Her evidence is clear and is supported by documents.  I accept her evidence.  On the basis of Madam Li’s evidence and the documents before the court, I accept that the facts as set out below have been proved by Madam Li.

6.Madam Li and her late husband, Mr Leung Tze Man (“the Husband”) married in 1996. Madam Li and the Husband had a daughter, Leung Siu Yuk (“the Daughter”).

7.In the early years of their marriage, Madam Li and the Daughter lived in Mainland China, and the Husband lived in Hong Kong in the Property alone. Madam Li and the Daughter would apply to the Mainland authority from time to time for permits to come to Hong Kong to visit the Husband.  Every time when Madam Li and the Daughter came to Hong Kong, they were allowed to stay in Hong Kong for not more than 3 months.  When they were in Hong Kong, they would live with the Husband in the Property.

8.In or around 2000, the Husband told Madam Li that the registered owner of the Property was Wong.  The Husband further told Madam Li that he and Wong had cohabited in the Property prior to Wong’s death on 6 November 1993.  After that, the Husband continued to live in the Property.

9.In or around 2002, the Husband and Madam Li began discussing that Madam Li and the Daughter should move to Hong Kong permanently.  The Husband was concerned, amongst other things, that the Daughter who was suffering from disabilities might receive better education and welfare in Hong Kong.

10.On or around 25 March 2004, Madam Li and the Daughter permanently moved to Hong Kong.  From then onwards, the Husband and Madam Li, together with the Daughter, had been living in the Property.

11.Only the Husband and Madam Li had the keys to the Property.  No person was allowed to enter into the Property except with the permission of the Husband and/or Madam Li.

12.The Husband passed away on 5 July 2013.  The Letters of Administration in respect of the estate of the Husband was granted to Madam Li on 25 March 2015.

13.After the death of the Husband, Madam Li and the Daughter continue to live in the Property.

14.The payment of electricity and water utility fees for the Property had been paid by the Husband since the death of Wong in 1993 and were addressed to the Husband.  The payment of government rates on the Property had been paid by the Husband after the death of Wong in 1993, even though the demands for rates were not addressed to the Husband.  Subsequent to the death of the Husband, Madam Li paid for all these expenses.

The principles

15.The principles set out below are well-known.

16.A person claiming for adverse possession has to show the requisite possession and the requisite intention to possess.  Requisite possession means a sufficient degree of excusive physical control of the land in question. Requisite intention to possess means the intention in his own name and on his own behalf to exclude the world at large, including the owner with the paper title, so far as is reasonably practicable.  See Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd [2007] 10 HKCFAR 588.

17.Possession without the consent of the owner is adverse possession.  See JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [36].

18.A mere licence is revocable and is automatically terminated by the death of the licensor.  See Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649 at 652A-E citing Terunnanse v Terunnanse [1968] AC 1086 at 1095; see also Adverse Possession (2nd ed.) by Jourdan QC & Radley-Gardner at §5-27.

19.Factual possession “must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly” (emphasis added), per Lord Browne-Wilkinson in Pye at [41], citing Powell v McFarlane & Another (1979) 38 P&CR 452 with approval.  Possession of land may be held jointly but not severally: per Anthony Chan J in Gotland Enterprises Ltd v Kwok Chi Yau (HCMP 4550/2003, 25 November 2014) at [45], citing Pye.

20.Using the land in a way one would expect him to use it as if he were the true owner suffices to show the requisite intention to possess.  In Tsang Foo v Chu Jim Mi Jimmy (CACV 178/2015, 28 October 2016), Cheung JA citing Pye at [2.3] to [2.7]:-

“2.3 Lord Hope of Craighead in the same case at paragraph 71 stated:

"The only intention which has to be demonstrated is an intention to occupy and use the land as one's own. … So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough."

2.4 Lord Hutton at paragraph 76 stated that when a trespasser occupied and made full use of the land in the way in which the owner would, "in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess".

2.5 Lord Hutton at paragraphs 75 to 76 stated:

“75. In the present case from August 1984 onwards the Grahams made full use of the disputed land as if they were the owners―they did everything which an owner of the land would have done and when an experienced chartered surveyor, called on behalf of the plaintiffs, was asked in cross-examination what an occupying owner of the disputed land might have done over and above what was done by the Grahams between 1984 and 1997, he was unable to think of anything.

76. I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion.”

2.6. The situation is, however, different where there is evidence pointing to a contrary conclusion or the acts of the person who claimed possession are equivocal and capable of more than one interpretation, in such a case the intention to possess is not established.  As Slade J in Powell stated at page 472:

"If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."

2.7 This is reaffirmed by Lord Hutton at paragraph 76:

"It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess.”” (Emphasis added)

21.The possession periods by successive squatters can be added up for the purpose of showing adverse possession.  The Limitation Ordinance (Cap 347) is not concerned with whether a squatter has acquired a title but with whether the paper owner’s right of action has been barred.  For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation.  The rights inter se of the successive persons who may have been in possession adversely to the paper owner since the paper owner was dispossessed are for this purpose irrelevant.  In Sze To Chun Keung v Kung Kwok Wai David & Anor (Privy Council) [1997] HKLRD 885, Lord Hoffmann said at 888H-J:-

“It therefore appears to their Lordships that, on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. … At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. Butthis does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose,
all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely
to the plaintiffs since they were dispossessed are for this purpose irrelevant.” (Emphasis added)

Requisite possession

22.Initially, while Wong was alive, Wong and the Husband cohabited and lived in the Property.  At that time, the Husband was in possession of the Property with Wong’s consent, or with a licence given by Wong.  However, upon Wong’s death on 6 November 1993, any licence given by Wong to the Husband would have been automatically revoked.  Accordingly, the Husband’s possession of the Property after 6 November 1993 is possession without Wong’s consent.

23.After Wong’s death, the Husband continued to live in the Property.  Only the Husband had the keys to the Property.  No one was allowed to enter the Property without the Husband’s consent.  I find that the Property was in the exclusive possession of the Husband after 6 November 1993.

24.Upon Madam Li’s permanent move to Hong Kong on or around 25 March 2004, Madam Li and the Husband used the Property as their family home.  From that time onwards until the death of the Husband on 5 July 2013, the Property was in the exclusive possession exercised by Madam Li and the Husband jointly.

25.After the Husband’s death on 5 July 2013, the Property was in the exclusive possession of Madam Li.

26.In respect of the requisite possession of the Property for the purpose of adverse possession, I find that:-

(a)   From 7 November 1993 until around 25 March 2004, the Husband had the requisite possession.

(b)   From around 25 March 2004 until 5 July 2013, Madam Li and the Husband jointly had the requisite possession.

(c)   From 6 July 2013 onwards, Madam Li has the requisite possession.

Requisite intention to possess

27.During each of the periods set out above, the Husband and Madam Li did intend to exercise exclusive control of the Property for the family’s own benefit.  The Property was kept locked by the Husband and/or Madam Li.  Only the Husband and/or Madam Li had the keys to the Property, protecting the Property from unwelcome visitors.  No other person was allowed to enter the Property without the consent of the Husband and/or Madam Li.

28.The use of the Property as the family residence is a use in a way as if they were the true owner of the Property.  That unequivocally demonstrates an intention to occupy and use the land as their own.  See Tsang Foo.

29.I find that the Husband and/or Madam Li had the requisite intention to possess the Property for the purpose of adverse possession during the periods as set out in paragraph 26 above.

Adverse possession established

30.Based upon the above findings, the adverse possession began on 7 November 1993.  From 7 November 1993 until around 25 March 2004, the Property was in the adverse possession of the Husband.  From around 25 March 2004 until 5 July 2013, the Property was in the adverse possession of the Husband and Madam Li jointly.  From 6 July 2013 onwards, the Property has been in the adverse possession of Madam Li.  Madam Li is entitled to make use of all these possession periods in support of her claim for possessory title to the Property.

31.As the adverse possession began after 1 July 1991, the relevant limitation period is 12 years.  By the date of the writ herein, ie 12 May 2016, more than 12 years have elapsed.  I hold that Madam Li has made out her case.

32.Madam Li has produced evidence to show that the annual ratable value of the Property on the date of the writ was less than HK$240,000.  I am the view that Madam Li’s claim is within the ambit of s 35 of the District Court Ordinance (“DCO”).  See Wang Hanzhen v The Personal Representative of Li Kuen, alias Kwok Chun (DCMP 3269/2014, 17 February 2016), §§44-48; Gainfield Investment Ltd. v Lam Yi Lai [2016] 3 HKLRD 771.

Proper reliefs

33.The primary reliefs sought by Madam Li in her statement of claim are as follows:-

“(1) A declaration that the Defendant’s title, interests, rights in and/or over the Property has been extinguished by virtue of section 17 of the Limitation Ordinance (Cap.347) and the Defendant is barred from taking action against the Plaintiff to recover the Property pursuant to section 7 of the Limitation Ordinance;

(2)  A declaration that the Plaintiff in her personal capacity, having been in adverse possession of the Property, has acquired and is entitled to possessory title to the Property and is entitled to be registered as the owner of the Property by virtue of the fact that the Defendant’s title of the Property has been extinguished.”

34.I have no problem in granting the declaration as set out under paragraph (1) of the prayer.  However, I would not grant the declaration sought under paragraph (2) of the prayer, for I am of the view that:-

(a)   The first part of the declaration as set out in paragraph (2), ie, to declare that Madam Li has acquired and is entitled to possessory title to the Property, is not necessary.  A possessory title is not something positive.  It only means that by the operation of the Limitation Ordinance, the registered owner is not entitled to recover possession from the adverse possessor and the registered owner’s title has been extinguished vis-à-vis the adverse possessor.  A declaration in terms of paragraph (1) would already cover these. There is no need to have another declaration in terms of the first part of paragraph (2).

(b)   The second part of the declaration as set out in paragraph (2) is misconceived.  I repeat what I have said in Wang Hanzhen:-

“53. Notwithstanding the plaintiff’s success in adverse possession, the plaintiff would not take over the title of the defendant. The defendant’s title has only been extinguished vis-à-vis the plaintiff. It remains as a title vested in the defendant and could be surrendered to the Government. See Wong King Lim v The Incorporated Owners of Peony House (CACV 3/2012, 29 May 2013), per Yuen JA at [33.2] and per Lam JA (as he then was) at [37]. Applied by Recorder Jat SC in Tsang Cho Kiu v Lam Tsat Fuk (HCMP 1077/2-13, 10 December 2013).”

(c)   No doubt, Madam Li would register the declaration in terms of paragraph (1) in the Land Registry against the Property.  Madam Li may also register this judgment in the Land Registry.  The fact that Madam Li has succeeded in her adverse possession claim has been clearly spelt out in this judgment.  By registering the said declaration and this judgment in the Land Registry, Madam Li’s interest is fully protected.

35.In my judgment, the proper relief to Madam Li is the declaration sought in paragraph (1) of the prayer.  For avoidance of doubt, I record that the adverse possession claim in which Madam Li succeeds is the adverse possession claim made by Madam Li in her personal capacity.

Conclusion

36.I make a declaration in terms of paragraph (1) of the prayer.

37.I have heard submissions on costs.  The general rule of costs following the event should apply.  I order that Madam Li’s costs in this action (including all costs reserved, if any) be paid by the Estate, with a certificate for counsel.

38.Lastly, it remains for me to thank Ms Isabel Tam, counsel for Madam Li, for the helpful assistance rendered to this court.

Ms Isabel Tam Chun Yee, instructed by S K Lam, Alfred Chan & Co, for the plaintiff

The defendant was not represented and did not appear