Wong Pui Ling v. Leung Kit Fun Beatrice Benedict and Another

DCCJ 4784/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4784 OF 2014

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J U D G M E N T

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Background

1.This is an application under Order 19, rule 7 of the Rules of the District Court for declaratory reliefs that the title of the 1^st and 2^nd defendants in the subject property have been extinguished by virtue of Limitation Ordinance and the plaintiff has established a possessory title in that property by way of adverse possession.

2.The defendants were absent for the hearing today.

3.The plaintiff issued the writ with statement of claim on 11 December 2014, seeking the abovementioned declaratory reliefs.  Then, the statement of claim was amended on 20 May 2016 and further amended on 6 January 2017. 

4.No acknowledgement of service had been effected by the 1^st and 2^nd defendants and no defence had been filed either against the statement of claim, amended statement of claim and the re-amended statement of claim.

Service of the relevant documents

5.Application for substituted service was made by the plaintiff to effect the service of the writ together with the statement of claim.  Such application was granted by the court on 27 May 2015.  Accordingly, service of a sealed copy of the order and the writ of summons was effected by ordinary post to the last-known address of the defendants and by an advertisement placed on a Chinese newspaper for the same.

6.However, no reply had been received from the defendants after substituted service was duly effected.

7.The plaintiff had also made enquiry to the Deaths and Births Registry for records of the 1^st defendant.  However, no record of her death was recorded.

8.After the re-amendment of the statement of claim, the service of the same was dispensed with, pursuant to the order of Registrar Lui on 3 January 2017.

9.As for the service of the current summons, the sealed copy of the summons had been sent by prepaid ordinary post, addressed to the last-known address of the defendants and had been advertised on the Oriental Daily News on 26 May 2017.

10.In the circumstances, I am satisfied that substituted service of this application and the amended statement of claim had been duly effected.

Declaratory Reliefs

11.Mr Lun for the plaintiff has referred me to several legal authorities on the granting of declaratory reliefs without a trial. 

12.The starting point in considering such application is that the court’s power to grant judgment under Order 19, rule 7 is discretionary and not mandatory.  The court is to give judgment according to the pleadings alone and it is also not the normal practice of the court to make a declaration without a trial (Wallersteiner v Moir [1974] 1 WLR 991; Lam Shing Shou v Lam Hon Man, HCA 361/2001).

13.However, the above 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 (Leung Pak Ki v The Estate of Pang Kau, HCA 624/2009, Deputy High Court Judge Paul Lam, SC, unreported, 1 March 2016; and Tsui Ming Sin v Tsui Chi Ping, HCA 2550/2014, Deputy High Court Judge Kenneth Kwok SC).

The Plaintiff’s Case

14.According to the plaintiff’s re-amended statement of claim, the following facts are relied by the plaintiff to establish her adverse possession of the land in question:

(1)  the plaintiff came to occupy the land in 1992, which was then an abandoned piece of land with no human habitation;

(2)  the plaintiff started her vehicle maintenance business on the land since occupation;

(3)  the adjacent lot of the land was redeveloped in or about 1997 and the plaintiff opened her own openings and access to the land;

(4)  the keys to the gates were kept by the plaintiff and no one else without her authority could enter onto the land;

(5)  since 1997, neither the 1st nor the 2nd defendant or their representatives had come to collect any rent or licence fee from the plaintiff;

(6)  the plaintiff cut the grasses and paved the land with concrete since her occupation of the land;

(7)  the land was fenced by the plaintiff and the fences were continuously maintained by the plaintiff;

(8)  storage of containers was done on the land by the plaintiff as office storage of materials etc;

(9)  the plaintiff had also kept dogs in guarding against intruders.

15.Besides, the plaintiff also attached to the re-amended statement of claim a plan prepared by her surveyor to delineate the boundary of the subject land in question coloured in yellow.

Conclusion and Order

16.Having considered all the circumstances, I am satisfied that the pleadings of the plaintiff show that the plaintiff had the requisite elements for adverse possession, ie both the intention as well as physical exclusive possession of the land since 1997.  The plaintiff has successfully made out a case that she had continuous and uninterrupted possession of the land over 12 years, to the exclusion of the whole world, including the 1^st and 2^nd defendants.

17.By virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347), the 1^st and 2^nd defendants’ title to the land had been extinguished.

18.I am also satisfied that the plaintiff has a genuine need for the declaratory reliefs sought as per the re-amended statement of claim and the granting of the declaratory reliefs will attain full justice for the plaintiff.

19.In the circumstances, I make the following order, that:

(1)  a declaration that the 1^st and/or the 2^nd defendants’ title to the parcel or piece of land situated at and known as the Remaining portion of Section B of Lot Number 1352 in Demarcation District 122, Castle Peak Road, Ping Shan, Yuen Long, New Territories, Hong Kong (the “Land”) had prior to the commencement of this action been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance; and

(2)  a declaration that the plaintiff has acquired a possessory title to the land and is accordingly entitled to be registered as the holder of the land.

20.Since the plaintiff is no longer insisting on seeking costs, I make no order as to costs of this action.

Mr T L Lun, Edward, instructed by Lau & Ngan, Solicitors LLP, for the plaintiff

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