Kwong Wing Lan v. The Personal Representative of the Estate of Edward Chan Otherwise Known As Chan Tak Tai, Deceased

DCCJ 3379/ 2015

[2019] HKDC 908

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 3379 OF 2015

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Coram: His Honour Judge Kent Yee in Court

Date of Hearing: 3 July 2019

Date of Judgment: 3 July 2019

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J U D G M E N T

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Introduction

1.Madam Kwong brought this action to claim a possessory title to a residential unit known as Flat M, 6^th Floor, State Theatre Building, Nos. 277-291 King’s Road, Nos. 4, 4A-D, 6, 6A-D, Java Road, Nos. 2-16 Tin Chong Street, North Point, Hong Kong (“the Property”) based on the plea of adverse possession.

2.On 19 September 2018, Madam Kwong made an application for default judgment against the defendant and HH Judge Winnie Tsui dismissed her application by the decision of the even date (“the Decision”) for want of service of her Amended Statement of Claim on the defendant. Therefore, Madam Kwong has to prove her case at trial.

3.The procedural history of this action was outlined in the Decision and I shall not repeat the same here. It suffices for me to highlight that Madam Kwong obtained leave from a master to proceed with this action in the absence of a person representing the estate of Mr Edward Chan under Order 15, Rule 15(1), Rules of the District Court on 25 September 2017. This explains the absence of the defendant at the trial hearing. Further, it should be clarified that the official solicitor did give Madam Kwong an acknowledgement of service by their letter dated 16 June 2017 after being served with the amended writ.

4.Madam Kwong is the only live witness at trial and it goes without saying that her evidence concerning her alleged exclusive possession of the Property for more than 12 years prior to the date of the amended writ is not challenged. I should first refer to her pleading.

The pleaded case of Madam Kwong

5.In the Amended Statement of claim, Madam Kwong has made the following factual allegations (copied from the actual document):

5.1  On or about 18 September 1954, Madam Kwong was lawfully married to Mr. Chiu Ying Hong (趙英航) (“Mr Chiu”) in the People’s Republic of China (“PRC”).  Mr. Chiu was born in PRC and his god-mother was Madam Chu Miu Wah (朱妙華) (“Madam Chu”).

5.2  In or about 1962, Mr Chiu migrated to Hong Kong in order to take care of Madam Chu, who alleged herself as the owner of the Property while Madam Kwong only migrated to Hong Kong in 1977. Since Mr Chiu came to Hong Kong in 1962, he stayed with Madam Chu in the Property in order to take care of her. Mr Chiu told Madam Kwong that Madam Chu had told him that one Madam 余吉頓 (also known as “曾艷琼”) (“Madam Yee”) bought the Property for Madam Chu’s husband, Mr Tsang Mei (also known as “Dong Mee 曾美”) (“Mr Tsang”). Mr. Tsang was the father of Madam 余吉頓. Due to reason unknown to Madam Chu, no title deeds were given to Mr Tsang nor the name of the registered owner of the Property was transferred to Mr Tsang. After the death of Mr Tsang, the ownership and possession of the Property were passed to Madam Chu.

5.3  Madam Chu passed away on 5^th March 1977 and by her will dated November 1967 (“the Will”), the Property was passed to Mr Chiu as a gift. Since then, Mr Chiu took possession of the Property and treated the Property as his own and he enjoyed the exclusive possession of the Property.  During the period from 1977 to 1986, Mr Chiu leased out the Property and received the rent thereof for his own use and benefit without sharing any part thereof to anyone (including the defendant) while Mr Chiu and his family, including Madam Kwong resided at his own flat in Mei Foo Sun Chuen, Kowloon, Hong Kong.  Mr Chiu also paid for the management fee, rates and Government rent of the Property by himself. Other than Mr Chiu and his tenant, no one had the keys of the Property.

5.4  In or around 1985, Mr Chiu changed the name of the owner of the Property into his own name in respect of the Demand for Rates as he considered that the Property belonged to him.

5.5  In or about 1987, Mr Chiu sold his own flat in Mei Foo Sun Chuen and moved into the Property together with his family members, including Madam Kwong.

5.6  Since then, Mr Chiu and Madam Kwong as well as their children and grandchildren continued to live at the Property without any consent of any persons claiming under the title to the Property, including but not limited to the defendant and/or his beneficiaries of his estate.

5.7  Mr Chiu lived at the Property until 7 April 2008 when he passed away intestate at the Pamela Youde Nethersole Eastern Hospital, Hong Kong.  Madam Kwong together with her children and then grandchildren continued to reside at the Property after the death of Mr Chiu. Madam Kwong has been continuously residing at the Property without the consent and to the exclusion of the defendant until now.

5.8  By reason of the matters aforesaid, the defendant has never been in physical possession of the Premises but was dispossessed by firstly Madam Chu and her husband and then Mr Chiu and the Plaintiff continuously ever since 1962.

5.9  Unknown to Madam Kwong, the defendant passed away on 18^th August 1981 at Good Samaritan Hospital, California, USA.

5.10  In the circumstances, from in or about March 1977 and for a total of some 40 years to the date of the amended writ, Mr Chiu and Madam Kwong have been in continuous, undisturbed and exclusive possession of the Property and exercised the right as the owner to the exclusion of the defendant.

Evidence of Madam Kwong

6.At trial, Madam Kwong testified in support of her claim. She adopted the contents of her witness statement as part of her evidence. She added that she moved out of the Property in 2018 out of convenience.

7.Her witness statement largely supports the allegations in the Amended Statement of Claim. I am aware that in respect of the alleged occupation of the Property by Madam Chu and Mr Chiu prior to 1987, her evidence is merely hearsay in nature. I have no reason to disbelieve her, nevertheless.

8.Her witness statement aside, I have perused all the documentary evidence. The authenticity of such documents is not in dispute. I find that the following facts are proved by documentary evidence.

8.1  As shown in the assignment dated 10 January 1967 (“the Assignment”), Mr Edward Chan, also known as Chan Tak Tai, acquired the title to the Property and became the sole registered owner thereof.

8.2  The death certificate issued by the County of Los Angeles shows that Mr Edward Chan passed away on 18 August 1981.

8.3  By the letter of Messrs. Woo Kwan Lee & Lo dated 30 December 2015, Madam Kwong was informed that the children of Mr Edward Chan had no interest and did not wish to get involved in these proceedings. His children did not deny that their late father was the defendant herein and the registered owner of the Property.     

8.4  The Will shows that Madam Chu indeed treated the Property as her own property and on that basis she intended to bequeath the same to Mr Chiu, her godson, upon her death. In the Will, it was alleged that the Property was purchased by her step-daughter Madam Yee at the costs of HK$28,000 with the monies provided by Mr Tsang. 

8.5  In the trial bundle, there is a handwritten document purportedly written by Madam Yee. She alleged that she bought the Property at the costs of HK$28,000.

8.6  The Assignment mentioned the fact that Madam Yee entered into an agreement for sale and purchase dated 14 July 1958 (“the said agreement”) in respect of the Property in consideration of HK$28,000. It also mentioned that, as with other sale agreements, the purchase price had been paid pursuant thereto but Madam Yee had failed or been unable to take up and execute the assignment.

8.7  The said agreement does not feature in the land search record of the Property and Madam Yee was never a registered owner of the Property. Nor was she a party to the Assignment.

8.8  By reason of the Assignment, Mr Edward Chan remained to be the legal owner of the Property notwithstanding the allegations of Madam Yee and Madam Chu.

8.9  The death certificate of Mr Tsang shows that he passed away on 7 September 1963 at the Property. The death certificate of Madam Chu shows that she passed away on 5 March 1977 in Hong Kong. Mr Chiu died in April 2008 in Hong Kong as shown by his death certificate.

8.10  There are a number of government rent demand notes, rates demand notes and utility bills issued to Madam Yee, Mr Tsang, Madam Chu and Mr Chiu in relation to the Property. Some of them were issued to Mr Tsang and Madam Chu up till 2011 even after their death.

8.11  Further, as shown in the demand note for rates dated 28 January 1985, Mr Chiu replaced Madam Chu to be the person responsible for paying rates in respect of the Property. Such demand notes were continued to be issued to Mr Chiu up till 2014 despite his death.

8.12  All these documents prove the allegations of Madam Kwong that the Property was actually occupied by Mr Tsang, Madam Chu and Mr Chiu (and his family including Madam Kwong) during the material times.

8.13  The management fee receipts issued up till 2018 produced by Madam Kwong support her allegation that she and Mr Chiu in his lifetime paid such fees as if they were the actual legal owner of the Property.

9.There is no reason why I should not accept Madam Kwong’s evidence that she started residing at the Property in 1987 with Mr Chiu and continue to reside at the Property despite the death of Mr Chiu until 2018. During the said period, she was in physical possession of the Property to the exclusion of all other persons including Mr Edward Chan or anyone claiming an interest in the Property. In the absence of contrary evidence, I also accept her evidence that she had never obtained the consent or authorization of Mr Edward Chan or his agent and personnel or representative of his estate for her occupation of the Property. Her occupation had never been interrupted by any objection raised by Mr Edward Chan or any one claiming an interest in the Property.

10.I should also make it clear that I accept all the evidence of Madam Kwong in her witness statement. It is, as pointed out above, largely supported by documentary evidence.

11.Based on the foregoing factual findings, I also accept the pleaded case of Madam Kwong that Mr Edward Chan was never in physical possession of the Property but was dispossessed by firstly Madam Chu and Mr Tsang in 1962 and subsequently by Mr Chiu and Madam Kwong. Their physical possession of the Property was never consented to or authorized by Mr Edward Chan.

12.The legal principles relating to adverse possession are well established. Applying those principles to the foregoing factual findings, I can conclude that the two major elements of adverse possession, i.e., physical possession of the Property and intention to possess the Property to the exclusion of all others including the actual paper owner, i.e. animus possidendi, are borne out by the evidence.

13.In the circumstances, I hold that Madam Kwong has been in exclusive possession of the Property for more than 12 years prior to the date of the amended writ herein and Mr Edward Chan’s title to the Property has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap. 347 and Madam Kwong has acquired a possessory title to the Property.

14.For completeness, I am satisfied by a rate demand note that the rateable value of the Property falls below the jurisdictional limit of the District Court.

Conclusion and Orders    

15.For the reasons given, I conclude that Madam Kwong has proved her pleaded case of adverse possession on the balance of probabilities and her claim should be allowed. I enter judgment against the defendant. Madam Kwong is entitled to the two declarations sought in respect of the extinguishment of the rights and interest of Mr Edward Chan over the Property and her possessory title to the Property. I grant the relief accordingly.

16.There is no reason why costs should not follow the event. I make an order that the defendant should pay Madam Kwong costs of this action including all costs previously reserved including certificate for counsel, to be taxed if not agreed. Madam Wong’s own costs should be taxed in accordance with the Legal Aid Regulations.

17.Lastly, I thank Ms Wong for her assistance in this matter.

Ms Linda Wong, instructed by Tang and So assigned by the Legal Aid Department, for the plaintiff

The defendant was not represented and absent