Cheung Kwan Yin and Another v. Chan Yuk Kuen

DCCJ 1489/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1489 OF 2016

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Before: Deputy District Judge S. P. Yip in Chambers (Open to public)

Date of Hearing: 11 April 2017

Date of Decision: 11 April 2017

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D E C I S I O N

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Background

1.This is an application by the plaintiffs for a default judgment pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court against the defendant in which the plaintiffs seek declaration of possessory title and the defendant’s title of the subject property be extinguished by virtue of section 17 of the Limitation Ordinance. 

Declaratory Judgment

2.It is trite law that the power to make a declaration is a discretionary power.  It is not the normal practice of the court to make a declaration without trial and, in particular, when giving judgment by consent or in default.  However, it is a rule of practice and not of law and the court has to give way to the paramount duty to do the fullest justice to the plaintiff to which he is entitled.

3.In an application for default judgment under Order 19 rule 7, the court could give judgment according to the pleadings only (Leung Pak Ki v The Estate of Pang Kau, deceased, and another, unreported, HCA 624/2009, 1 March 2016 and Li Sau Sing v CTMA Holdings Limited and others, unreported, DCCJ 4825/2014, 5 October 2015).

4.Mr Chan for the plaintiffs referred me to the following cases in support of declaratory judgment given in default without a trial: Wang Han Zhen v The Personal Representative of Li Kuen, alias Kwok Chun, unreported DCMP 3269/2014, 17 February 2016 and Huen Cheuk Kuen v The Estate of Lam Oi Lin, unreported, HCA 1885/2012, 14 June 2013. 

5.Mr Chan submitted that whether to grant a declaration without a trial is a fact-sensitive exercise and the rule against such is only a rule of practice. 

Adverse Possession

6.The claim of the plaintiffs’ is based on adverse possession.  In order to establish possessory title on adverse possession, the squatter has to show that both factual possession of the subject property and the requisite intention to possess.  The relevant limitation period in this case is 20 years since possession, since some time before 1 July 1991 (section 38A of the Limitation Ordinance).

7.It is the plaintiffs’ pleaded case that the 1^st plaintiff who is a farmer has been in possession of the subject lot, ie Lot No 1609 in Demarcation District 3 of Tung Chung, Lantau Island, New Territories, Hong Kong since around 1962 and in joint possession with his wife, ie the 2^nd plaintiff, since around 1984 for the purpose of cultivation up to the present time of their statement of claim dated 28 July 2016.

8.Apart from cultivation, the 1^st plaintiff also built various structures or facilities for farming over the years including well, water pipes, water pumps, two pools, stone weir and wire mesh fence.

9.It is the plaintiffs’ case that at all material times such possession by the plaintiffs was with the required intention to possess the subject lot to the exclusion of all others including the defendant.

10.Upon considering the statement of claim alone, I am satisfied that the plaintiffs have successfully made out their claim of adverse possession of the subject lot.

Service of the Proceedings & the Default

11.The amended writ of summons, statement of claim and the inter partes summons for default judgment have been served on the defendant, and according to the plaintiffs’ various affirmations of service, none of the above documents have been returned by the post office. I am satisfied the services of the aforesaid documents are effective and the defendant has failed to file any acknowledgement of service, intention to defend and/or defence.

Conclusion & Order

12.In the circumstances I am satisfied that full justice will be done by granting the reliefs sought by the plaintiffs and I therefore make the following order and to give judgment to the plaintiffs:

(1) a declaration that the plaintiffs have acquired a possessory title of Lot No 1609 in Demarcation District 3 of Tung Chung, Lantau Island, New Territories, Hong Kong (“the Lot”);

(2) a declaration that the defendant’s title to the Lot has been prior to the commencement of this action extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347); and

(3) there be no order as to costs of this action save that the plaintiffs’ own costs be taxed in accordance with the Legal Aid Regulations.

Mr Kenneth C L Chan, instructed by Cheung & Choy assigned by the Director of Legal Aid, for the 1^st and 2^nd plaintiffs

The defendant was not represented and did not appear