Cheng Po Fun v. The Personal Representative of Liu Po Kiu (also known as Liu Poh Kioh), Deceased and Another

LA/MLT/15532/2016 (CD32)
DCMP 3067/2016

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3067 OF 2016

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Coram: His Honour Judge KW WONG in Court

Date of Hearing: 30 November 2017

Date of Judgment: 30 November 2017

Date of Reasons for Judgment: 5 December 2017

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REASONS FOR JUDGMENT

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1.By the Amended Originating Summons issued herein on 7 October 2016, the Plaintiff seeks various declarations to the effect that she had been in adverse possession of 3^rd Floor, No 70 Pan Hoi Street, Hong Kong (“Property”) which was first acquired by one Liu Po Kiu (“L1”) and Liu Kee Yee (“L2”) as tenants in common in equal shares in 1961 pursuant to an assignment. Both L1 and L2 had passed away by now.

2.The 1^st and 2^nd Defendants (hereafter referred to as “D1” and “D2” respectively) are absent throughout the proceedings. After hearing the evidence of the Plaintiff and the submission of Mr Adrian Leung, counsel for the Plaintiff, this Court granted the following declarations:

i) A declaration that the title, interest and/or rights in or over the Property of D1 and D2 or their successors-in-title has, prior to the commencement of these proceedings, been absolutely extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347 (“LO”);

ii) A declaration that no action shall be brought by any of D1 and D2 or their successors-in-title to recover the Property by virtue of section 7(2) of the LO; and

iii) A declaration that the Plaintiff, having been in adverse possession of the Property for a period exceeding 12 years before the commencement of these proceedings, has thereby acquired and is entitled to a possessory title, interest or rights to the Property vis-à-vis D1 and D2.  

3.There be no order as to costs, save and except that the Plaintiff’s costs be taxed in accordance with the Legal Aid Regulations, with certificate for counsel.

4.I indicated that brief reasons for my decision would be handed down in writing, which I now do.

Brief Background

5.There are several affirmations filed herein to support the application. The Plaintiff had filed a total of 3 affirmations. She affirmed the same at trial. Since the Defendants were absent, her evidence was basically unchallenged and this Court accepted her evidence in its entirety on a balance of probability.

6.The Plaintiff is related to L2. The relationship needs some explanation. She is not related to L1 and had never seen or met L1 during her life time.

7.L2 had a number of children. The Plaintiff went into co-habitation with one of his children, namely one Mr Liu Kin Keung (“Husband” of “her Husband”), in or about 1986. They eventually married in Canada in September 1993. Shortly thereafter they gave birth to their son Alvin in December 1993. Accordingly, L2 was the Plaintiff’s father-in-law.

8.When the Plaintiff went into cohabitation with her Husband in 1986, they lived at the Property together with L2 and his wife, one Madam Kwong Ho (“mother-in-law”). Unfortunately, L2, her Husband and her mother-in-law had all passed away, L2 on 30 December 1991, intestate, her Husband on 15 July 2000 and the mother-in-law on 29 December 2000.

9.Since 1986 and despite the passing away of the Husband and his parents, the Plaintiff and Alvin remained residing at the Property up until now.

10.The Property is a 2-bedroom unit. When L2 and her Husband passed away, she and Alvin lived in one room and her mother-in-law in another. After her mother-in-law had passed away, she threw away all the belongings of the mother-in-law, renovated the deceased’s room and moved Alvin to occupy the mother-in-law’s room.

11.It is the Plaintiff’s case that she had a bad relationship with all children of L2, except the elder brother Liu Kin Fai (“elder brother”). It was her case that she had serious disputes on money matters with at least Rhoda and D2. At trial, she elaborated that these children of L2 did not respect her and would like to come and go to the Property as they wish to pay respect to the mother-in-law. D2 even said she was the one responsible for all matters relating to the Property. The Plaintiff refused. She said she had expressly told D2 that no children of L2 could enter the Property without her permission. Since the death of her Husband and the mother-in-law by end of 2000 or 2001, she had the followings to say in support of her claim for adverse possession:

i) She had firmly told L2’s children that she would not allow any of them to enter the Property without her consent;

ii) In order to prevent them from entering, she had changed the locks of the front door and gates and only kept the keys to herself and Alvin;

iii) She had rejected on some occasions the requests of L2’s children to visit the Property, and they could never be able to do so;

iv) Since her relationship with L2’s other children was bad, she would expect these children to lodge a claim, or come over to the Property. There was no interruption from any of L2’s children for more than 16 years as from end of 2000;

v) She was poor and the Property was her only shelter, she would not allow any of L2’s children to get back or in any way enter the Property so as to disrupt her life; and

vi) Throughout her continuing occupation of the Property, the Chairman of Nos 64-70 of Pan Hoi Street Mutual Aid Committee even regarded her as owner and had invited her to participate as executive committee member of the said committee. She was secretary of the committee as from 30 August 2001 and treasurer as from 15 January 2012 until now.

12.As for L1, after extensive enquiries it was found out that L1 was in fact clansmen of L2 both coming from the Panyu County of Guangdong, but otherwise they were not related by blood. L1 was addressed by L2’s children as their aunt (姑媽). L1 did not marry and worked as an amah in the Singapore before retiring to live in Hong Kong at the Property. When L1 was occupying the Property, L2 and his family resided elsewhere. After the passing away of L1, L2 and family moved in to reside at the Property.

13.L1 died in Hong Kong on 3 February 1982. Since she had no relative, one of the Plaintiff’s brother-in-law claimed the corpse for burial. According to L1’s death certificate, it was issued to Liu Pok Kioh (廖寶橋) which is different but very similar to one of the co-owner’s name appeared in the 1961 assignment, namely, Liu Po Kiu (廖宝喬). In fact, the cremated ash of one 廖寶橋 were put together with that of L2 in an urn placed in Cape Collinson Columbarium and both names of L1 and L2 were engraved on the same niche stone. Given the circumstances, the Plaintiff’s verily believed the 2 names were in fact referred to one and the same person, i.e. L1.

Service of Legal Process

   As against D1

14.The Official solicitor, apparently accepted that the 2 names of L1 were referable to one and the same person and without anyone willing to represent its estate, has agreed to represent L1’s estate, limited to service of legal process. Service of legal process has duly been effected.  By an order dated 24 July 2017, HHJ MK Liu ordered that the proceedings be proceeded with in the absence of anyone representing the estate of L1 and such order, and any judgment or order subsequently given or made in the proceedings shall bind the estate of the deceased to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings pursuant to Order 15 Rule 15 of the Rules of the District Court.

As against D2

15.Surprisingly, a child of L2 had seen fit to apply for administration of L2’s estate after his passing away for over 20 years. The Letters of Administration in respect of the estate of L2 were granted to one Madam Rebecca Liu, i.e. the D2 on 23 July 2014. No assets, other than 50% interest of L2 in the Property was set out in the schedule of property annexed to the said Letters. It was said that D2 had an address in Kornhill.

16.Service of the Originating Summons on D2 was by way of insertion through the letter box of D2’s Kornhill address on 10 October 2016. The Plaintiff said she did not have any reason to doubt this was not the address of D2.

17.Further, it was confirmed in the affirmation of service that the children of L2 were served with documents filed herein, with a view that if any one or more of them would like to contest the hearing, they could come out. None shows any presence in the present proceedings.

18.This Court is satisfied that both D1 and D2 have been properly served. Particularly, this Court believed D2 had been served and should have been alerted to the proceedings by service on her and on her other siblings. However, she chose not to enter into any appearance in the proceedings.

19.This Court therefore allowed the trial to proceed.

The Legal Principles and Discussion

20.This is a case in which the Plaintiff claims to have acquired a possessory right over the paper owners by reason of adverse possession. The starting point is the LO. The followings are the relevant provisions:

i)   Section 7(2)

“No action shall be brought by any person to recover any land after the expiration of 12 [20 years for cause of action accrued before 1 July 1991][1] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

[proviso relates to the Government and is irrelevant to the present case]”

ii)   Section 8(1)

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

iii)   Section 13(1)

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) …”

iv)   Section 17

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.

[Section 10 relates to land held on trust and is not relevant to this Appeal]”

21.From the above, in order to succeed a claim for adverse possession, the Plaintiff, who is not the registered owner of the Property, should establish that (i) she has been in continuous and exclusive physical possession of the Property for 12 years counting back from the date of application; and (ii) she has the requisite intention to possess, i.e. the animus possidendi. These principles have been enunciated by Slade J (as he then was) in Powell v McFarlane[2], which have been confirmed by higher courts in England e.g. the House of Lords decision in JA Pye (Oxford) Ltd v Graham[3] and adopted by the Hong Kong Court of Final Appeal in a number of cases including, for instance, Wong Tak Yue v Kung Kwok Wai David & Another[4] and The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited[5].

22.From the authorities, it can be distilled that:

i) Requisite possession for the purpose of adverse possession means the person claiming adverse possession has sufficient degree of exclusive physical control of the land in question. What must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so;

ii) Requisite intention to possess for the purpose of adverse possession involves the person claiming adverse possession has made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owners as best he can

23.This Court is satisfied that there has been continuous occupation of the Property by the Plaintiff for more than 12 years as from end of 2000 or 2001. It is not in dispute that the Plaintiff entered into possession of the Property by consent of L2 or the mother-in-law or her Husband. By end of 2000 or early 2001, any licence, by L2 or even the mother-in-law had been revoked. It is trite that any permission, i.e. bare licence given will be automatically determined by the death of the licensor: see Megarry & Wade: The Law of Real Property, 8^th Ed, 2012, [34-03]. This Court accepts that this is the case.

24.It is the submission of Mr Leung that the plaintiff has manifested a clear intention to exclude the whole world by changing the locks of the front door and gates. Mr Leung referred this Court to 2 passages in Stephen Jourdan’s Adverse Possession, 2^nd Ed 2010 at [13-23] and [12-28], in which the learned author, relying on English authorities, takes the views that if the squatter controls the entrance to the disputed land, by keeping the door or gate to it locked and holding the keys, that is strong evidence that he has the animus possidendi.

25.In the Court’s judgment, the mere fact the locks have been changed, though strong in evidence, may not be sufficient evidence to establish the necessary intention to possess for the purpose of adverse possession. The fact of changing the lock has to be assessed in all the circumstances of the case. This Court has not lost sight of the decision of Poon Chi Hang v Lai Ho Sun[6] . In that case the change of lock by the alleged adverse possessor, coupled with no communications between the registered owners and the possessor, was held by Mr Recorder Houghton SC to be insufficient for adverse possession purpose.

26.However, I think the present case can be distinguished from Poon Chi Hang (supra). In that case there was no communication between the parties after the parties’ relationship had become sour. However, in the present case, it was the unchallenged evidence of the Plaintiff that she had informed those who were expected to lodge a proprietary claim against the Property not to come to the Property. They would not be allowed to enter into the Property without her consent. In fact, they had been declined coming over on some occasions. The locks were changed against this backdrop. In the Court’s judgment, it manifested a clear and unequivocal outward intention to exclude anyone who are likely to assert an interest from entering the Property without her consent. This Court is satisfied the Plaintiff has established a sufficient intention to possess for the purpose of adverse possession.

27.The 2 elements necessary for an adverse possession claim over the Property have therefore been established.  

Mr Adrian Leung, instructed by V Hau & Chow, for the plaintiff

The 1^st Defendant is not represented and did not appear

The 2^nd defendant is not represented and did not appear