Seto Yim King v. Soo Hooyet Dew

HCA 934/2017

[2019] HKCFI 2640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 934 OF 2017

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D E C I S I O N

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1.This is the hearing of the plaintiff’s summons dated 18 July 2018 (the “Summons”) for judgment against the defendant in default of both acknowledgment of service and defence, pursuant to Order 19 rule 7.

2.The plaintiff’s claim is based on the doctrine of adverse possession.  She claims possessory title to the property known as 2^nd Floor, No 235 Castle Peak Road, Sham Shui Po, Kowloon (the “Property”).

3.On 18 April 2017, the plaintiff took out the Writ herein against the defendant.  Therein, the plaintiff claims:

(a)  she was born in May 1937;

(b)  her mother had since a date unknown started to cohabitate with the defendant.  That continued until her mother passed away in 1942;

(c)  the defendant has since 24 April 1956 been the registered owner of the Property;

(d)  shortly after the defendant had become the registered owner of the Property, the plaintiff started to live in the Property;

(e)  in about 1962, the defendant took away all his personal belongings and left the Property;

(f)  the plaintiff continued to reside at the Property with her families until 1988 when they moved to a public housing estate;

(g)  in 1988 when they moved out, the plaintiff leased the Property to a Mr Seto Chung Chau (“Mr Seto”);

(h)  Mr Seto had since 1988 until his death in 2015 been living in the Property as the plaintiff’s tenant and been paying rent monthly to her;

(i)  after Mr Seto’s death in 2015, his family continued to live in the Property and pay the plaintiff rent until about May 2016;

(j)  between 1962 and early 1988, the plaintiff had been paying all government rent, rates and other utility charges of the Property. After the lease to Mr Seto, they were paid by him or his families as the plaintiff’s tenant;

(k)  the plaintiff’s occupation of the Property since 1962 has been without the consent, permission or approval of the defendant. Nor has she ever paid any rent to the defendant; and

(l)  the plaintiff has hence for more than 20 years prior to the commencement of the present action been in continuous and exclusive use, occupation and possession of the Property to the exclusion of the defendant.

4.On 17 November 2017, the plaintiff obtained leave for substituted service of the Writ.  I have considered the 5^th affirmation of Cheung Ka Mang.  I am satisfied that substituted service of the Writ was effected on 22 December 2017.

5.On 18 July 2018, the plaintiff took out the present Summons.

6.The Summons was first set down for hearing before me on 10 September 2018.  On that day, directions for substituted service of the Summons were sought, which I granted. 

7.On 22 May 2019, the plaintiff obtained leave for amendment of the Writ and the Statement of Claim.  Service of the summons for the same and of the Amended Writ has been dispensed with.

8.I have read the affirmation of Chan Yi Sau.  I am satisfied that substituted service of the Summons was effected on 26 September 2019.

9.The application is made pursuant to Order 19 rule 7.  Rule 7(1) provides that “...on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim”.

10.The first matter to note is this.  The consideration of the Court is confined to what the plaintiff appears entitled to “on his statement of claim”.  The Court cannot receive any evidence on merits — see also Hong Kong Civil Procedure 2020, Volume 1, paragraph 19/7/11.

11.The plaintiff has filed an affirmation on merits dated 18 July 2018.  That is not permissible.  I refuse to accept the same or consider its contents.

12.The second matter to note is that in Order 19 rule 7(1), although the words “the Court shall” are used, “the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment...” — see Hong Kong Civil Procedure 2020, Volume 1, paragraph 19/7/13.  It is further stated at paragraph 15/16/2 that:

“The power to make binding declaration of right is a discretionary power ... A declaration can only be made after proper argument and cannot be made merely on admissions by the parties whether in pleadings or otherwise ... nor in default of compliance with rules of court.”

Similarly, it is stated at paragraph 19/7/20 that “It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently”.

13.On the other hand, as has been explained at paragraph 15/16/2 of Hong Kong Civil Procedure 2020, Volume 1:

“...the rule of the court that a declaration will not be granted when giving judgment by consent or in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled;” (See also to the same effect paragraph 19/7/20.)

14.In the present case, I have carefully considered the Amended Statement of Claim.  I note that:

(a)  the Property is a residential flat within a multi‑storey building and is clearly delineated.  This case is hence not like those other (and usual) cases involving rural lands, where the delineation of the subject properties can be difficult and may require expert evidence;

(b)  the defendant is known to the plaintiff, but is not simply an unknown paper owner of the Property;

(c)  substituted service relating to the proceedings has been ordered and effected twice;

(d)  the plaintiff is able to point to a specific year (ie 1962) when the defendant left and in effect abandoned the Property, and when her possession of the same commenced;

(e)  the possession of a residential flat is, again unlike the occupation of a lot of rural land, clear‑cut;

(f)  starting from 1962, the plaintiff had occupied the Property for more than 20 years before the commencement of the Limitation (Amendment) Ordinance 1991; and

(g)  the plaintiff had also occupied the Property for more than 20 years by the time she rented out the Property in 1988, so that any issue which such renting out might give rise is not even engaged.

15.I have considered the authorities cited to me, which include Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion [2006] 4 HKLRD 1, Powell v McFarlane & another (1977) 38 P &CR 452, Wong Tak Yue v Kung Kwok Wai & anor (No 2) (1997‑1998) 1 HKCFAR 55 and Poon Chi Hang v Lai Ho Sun [2019] HKCA 734 (which involved, similar to this case, a residential unit within a multi‑storey building).

16.On the facts of this case, and noting that the plaintiff is herself 82 years of age now, I form the view that doing the fullest justice to the plaintiff justifies me in granting her appropriate declaratory relief at this stage.  I am however not prepared to grant the judgment sought, which includes an order that the name of the plaintiff be entered into the register of the Land Registry as the registered owner of the Property.  That in my view is not appropriate. 

17.Having heard submissions, I grant the following declarations:

(a)  a declaration that the defendant’s title, interest and/or rights in and/or over the Property has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance;

(b)  a declaration that the plaintiff has been in adverse possession of the Property for a period of no less than 20 years prior to the commencement of the Limitation (Amendment) Ordinance 1991 and the present action, and has thereby acquired and is entitled to possessory title, interest and/or rights in and/or over the Property; and

(c)  there be no order as to costs of this action and of this application.

Mr Hatten SF Kong, instructed by Wing Hang Lawyers, for the Plaintiff

The Defendant was not represented and did not appear