Chiu Chun Lin v. Tang Sow Kuan

DCCJ 3914/2015

[2018] HKDC 341

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3914 OF 2015

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JUDGMENT

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1.By the present action, the Plaintiff claims against the Defendant for inter alia declarations that the Defendant’s title to a portion of the land known as Lot No. 56 in Demarcation District No. 102, Yuen Long, New Territories, Hong Kong, which is coloured pink in the Lot Index Plan annexed to the Plaintiff’s Statement of Claim dated 21 August 2015 (“the Land”) has been extinguished and that the Plaintiff has established a possessory title to the Land by way of adverse possession. Upon the Defendant’s failing to file an Acknowledgement of Service and a Defence, the Plaintiff took out the present application for a judgment in default against the Defendant.

Service of court documents

2.By an order made by a Master on 6 October 2016, the Plaintiff was given leave to effect service of the Writ of Summons by way of substituted service.  On the Plaintiff’s evidence that service of the Writ of Summons was effected on 26 October 2016 in accordance with the order, I am satisfied that the service of the proceedings has been duly effected.

The Plaintiff’s case

3.Several affirmations have been filed in support of the Plaintiff’s case that she has been in exclusive possession of the Land since 1995, including affirmations by the Plaintiff’s tenants.  As stated by the courts in a chain of recent judgments, the court cannot receive evidence and must give judgment according to the pleadings alone (see for examples, Leung Pak Ki v The Estate of Pang Kau, deceased HCA 624/2009; Biostime International Investment Ltd. v Finance Heson Paper (HK) Co. Ltd. [2015] 2 HKLRD 658; Li Sau Sing v CTMA Holdings Ltd. v Others DCCJ 4825/2014; Tsui Ming Sin v Tsui Chi Ping HCA 2550/2014).  Although I appreciate that practitioners sometimes tend to prefer to err on the side of caution, I feel obliged to add a yet further reminder that substantive evidence is not required in an application for a judgment in default.

4.What follows is a summary of the Plaintiff’s pleaded case, which is presumed to be true.

5.The Defendant is and at all relevant times the registered owner of Lot No. 56 in Demarcation District, No. 102, Yuen Long, New Territories, Hong Kong (“Lot 56”).  In 1959 when the Plaintiff was 10 years old, his father relocated his family to Tsing Lung Tsuen (青龍村). The Plaintiff grew up with the impression that Lot 56, a piece of unoccupied land in the immediate vicinity of Tsing Lung Tsuen, was government land.  In early 1993, the Plaintiff arranged her two sons to apply to the government for a grant of Lot 56 so that they could build a small village house there.  Before a grant was made to the Plaintiff’s sons, the Plaintiff proceeded to carry out levelling work on Lot 56, which cost her $20,000.  However, a few months after the Plaintiff’s sons had submitted their application, they were told that their application was unsuccessful because the land was owned not by the government but the Defendant.  As the Plaintiff had already incurred $20,000 to level Lot 56, she decided to occupy part of the lot (i.e. the Land, as defined above) and turned it into a parking lot.  Metal fences were erected along the boundary of the Land and the entrance to the Land was secured by a metal chain.  The Plaintiff had several small houses in the area and she let her tenants parked their cars in the parking lot.  Part of the Land was let to others for the parking of container trucks.  From late 1995 or early 1996 to 25 August 2015 (the date when the present action was commenced), the Land had been so used and exclusively occupied by the Plaintiff.  By virtue of her exclusive possession of the Land, the Plaintiff claims that she has acquired a possessory title to it.

Analysis

6.The relevant principles are well known and can be stated briefly.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess (animus possidendi).  The intention to possess involves the intention in one’s own name and on one’s own behalf to exclude the world at large, including the paper owner, as far as is reasonably practicable and so far as the process of law will allow: Wong Tak Yuen v Kung Kwok Wai & Another (No.2) (1997-98) 1 HKCFAR 55; Yu Kit Chiu v Chan Shek Woo CACV 137/2010, unreported, 18 February 2011).

7.It is trite law that the person who claims adverse possession needs not personally be in physical possession of the land in question. He can acquire a possessory title to the land through occupation by his licensees or tenants: Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70, at 77D-78E.

8.In this case, by turning the Land to a parking lot which was only accessible to herself, her tenants and licensees, the Plaintiff has demonstrated a clear intention to treat the Land as her own and possess it to the exclusion of others, including the paper owner.  I find that a case of adverse possession has been made out.

9.There is no inflexible rule against granting a declaratory relief without a trial.  In appropriate cases, the court will proceed to grant a declaratory relief if the applicant has demonstrated a genuine need for such relief: Lai Wai Kuen v Wong Shau Kwong [2004] 4 HKC 528; Law Yuk Fong v Man Chung Wai & Another HCA 2195/2015.  On the pleaded case of the Plaintiff, I am satisfied that the Plaintiff is entitled to the reliefs sought.  Accordingly, I make the following orders: -

(1) It is declared that the Defendant’s title to a portion of the land known as Lot No. 56 in Demarcation District No. 102, Yuen Long, New Territories, Hong Kong, which is coloured pink in the Lot Index Plan annexed to the Plaintiff’s Statement of Claim dated 21 August 2015 (“the Land”) has been extinguished;

(2) It is declared that the Plaintiff has established a possessory title to the Land by way of adverse possession;

(3) There be no order as to costs.

Mr Simon Kwong of Leung Kin & Co., for the Plaintiff

The Defendant was not represented and did not appear