Liu Kit Wing v. The Estate of Liu Fo Hing, Deceased

HCMP 3406/2016

[2019] HKCFI 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3406 OF 2016

________________________

________________________

________________________

J U D G M E N T

________________________

1.In this matter which was commenced by way of originating proceedings, the plaintiff seeks a declaration in respect of the possessory title over the lot of land in question which we can identify by reference to the lot index plan contained in the bundle[1]. The plaintiff seeks the declaration that such title was obtained by virtue of adverse possession and that the paper title of the registered owner of the relevant lot has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347.  

2.The defendant has never appeared save and except that pursuant to previous direction of the court, the Official Solicitor was brought in for the limited purpose of accepting service of these proceedings.  Considering the evidence, I am satisfied that notice of today’s hearing as well as the availability of the hearing bundle for the defendant’s collection has been given by way of substituted service pursuant to previous direction of the court.  Therefore, I see no reason why the plaintiff should be prevented from proceeding today[2].

3.The relevant principles in respect of adverse possession are trite.  The starting point is sections 7(2), 13(1) and 17 of the Limitation Ordinance.

Section 7(2)

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him. ……”

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) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

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.”

4.Insofar as the present case is concerned, the applicable limitation period should be 12 years[3]. It is the burden of the plaintiff to prove that he has obtained both factual possession with the requisite intention to possess the same to the exclusion of the entire world over the relevant period of time prior to the commencement of these proceedings.

5.As to what constitute these two ingredients of adverse possession, the well-established principles could be found in cases including the English case of Powell v McFarlane (1979) 38 P&CR 452 and J A Pye (Oxford) v Graham [2003] 1 AC 419 as well as the Hong Kong Court of Final Appeal case of Wong Tak Yue v Kung Kwok Wai (1997-1998) 1 HKCFAR 55.  These principles were also summarised in the case of Law Yuk Fong v Man Chung Wai & Another HCA 2195/2015 (16 January 2017) which is cited by Mr Wong appearing for the plaintiff today. 

6.Applying those principles to the present case, I note, among others, the following essential evidence adduced by the plaintiff by way of affidavit.

7.The plaintiff was born in January 1962.  His father was the registered owner of Lots 428 and 429 in the same Demarcation District[4]. The family of the plaintiff resided in the structure built on Lot 429.  When he was 7 to 8 years old, the plaintiff personally witnessed that his father possessed the key to a small house located on Lot 478, which is the lot in question.  When he was a teenager, he personally witnessed actual repair carried out by his father to the small house on the relevant lot, and subsequent to that, the renting out of the reconstructed structure on the lot. In 1979, the plaintiff’s father passed away.  The plaintiff was then 17 years old.  He succeeded and took over the renting out of the property on the relevant lot as well as collecting the rent from that.  In 1988, in conjunction with the reconstruction project on nearby lots, the plaintiff commissioned the demolition and reconstruction of a small house on the relevant lot.  The documentary evidence managed to show the incurring of the relevant expenses for such purpose, and that the reconstruction was completed in 1998 to 1999.  The new house, as what we can find on the lot in question now, consists of three storeys, i.e., the ground floor, 1st floor and 2nd floor with the roof.  The documents also suggest that since then, the official address of that property is known as No. 8, 4th Lane, Ha Pak Tsuen, Sheung Shui.  The plaintiff has also rented out the new property.  Amongst the documentary evidence are various tenancy agreements, albeit not all of them relating to that.

8.Pursuant to the previous directions of the court, further affidavit evidence was filed by the plaintiff which refers to numerous photographs of the vicinity of the property on the lot as well as various aerial photographs of the vicinity of the lot.  Looking at the aerial photographs, the best that one can tell is the identification of the vicinity of the relevant lot as circled by the plaintiff on a couple of the aerial photographs.  Even so, it is not immediately apparent that one can say with certainty whether the identification of the lot should be accepted as accurate or not.  Nevertheless, at the end, the court has to consider all the evidence in totality, particularly the evidence of the plaintiff as to what has happened in relation to the lot in question over the relevant period of time by way of his affidavit evidence.

9.On the balance of probabilities and in the absence of contest, I accept the evidence of the plaintiff as contained in the two affidavits, subject to my above observation in relation to the aerial photographs.  I find that the plaintiff manages to prove both factual possession and the requisite intention that are the essential ingredients of a successful claim for adverse possession over the relevant period of time.

10.In these circumstances, I am satisfied on the basis of the materials before me that an order should be granted in terms as sought.  I grant a declaration that the plaintiff has acquired a possessory title to the property, namely, Sheung Shui Lot No. 478 in Demarcation District 52, New Territories by adverse possession by virtue of the Limitation Ordinance.  The lot shall be particularly identified in the order by reference to the lot index plan as I refer to above[5].

11.I also grant a declaration that the defendant is barred from bringing any action to recover the property and, lastly, a declaration that the title to the property of the defendant or its successory title has been extinguished by virtue of section 17 of the Limitation Ordinance.

12.I make no order as to costs as requested.

Mr Simon Wong, instructed by Francis Kong & Co, for the plaintiff

The defendant was not represented and did not appear