Sik Chi Yim (Secular Name: Tsang Lai Kuen) v. The Personal Representative(S) of Sik Yu (Deceased)

DCMP 2712/2015

[2019] HKDC 1488

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2712 OF 2015

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BETWEEN

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Before:  Deputy District Judge David Chan in Chambers (Open to Public)

Date of Hearing:  1 November 2019

Date of Decision:  1 November 2019

Date of Reasons for Decision:  8 November 2019

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REASONS FOR DECISION

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1.This is the hearing of the Re-Amended Originating Summons issued by the plaintiff in which she claims possessory title of Lantao Plateau Lot No 73, Lantau Island, New Territories (the “Lot”).  At the hearing, the plaintiff was represented by counsel Mr Wilfred Tsui (“Mr Tsui”).  The defendant was unrepresented and absent.

2.The Re-Amended Originating Summons is supported by the plaintiff’s 7 affirmations, most of which were filed in answer to the requisitions raised by the masters in relation to the service of the Re-Amended Originating Summons and application for an order under Order 15, rule 15 of the Rules of the District Court (Cap 336H) (“RDC”) to proceed with this claim in the absence of a person representing the estate of Sik Yu (the “Deceased”). 

3.Pausing here, my use of the term “Deceased” to describe Sik Yu connotes that I accept her passing as a fact.  Because of the lack of any records from the relevant Government departments proving the Deceased’s death, the plaintiff had to overcome a lot of hurdles, as reflected by her additional 6 affirmations filed, before finally having obtained the leave to serve the Re-Amended Originating Summons on the Official Solicitor, and the order to carry on with these proceedings in the absence of the defendant.  These gruelling exercises were necessary in light of the court’s decision in Law Fei Shing v To Chiu Kwai[1], where it was held that the court would not find, without satisfactory evidence, or presumed, a party to have died, even if such a party would have reached the age of 130 at the time of the hearing.

4.In the present case, although there is no record of the Deceased’s death, the plaintiff has tendered photograph of a plague of the columbarium niche for the cremains of the Deceased at the Po Lin Monastery, with her alias name of釋玄善 and the date of her passing on 8 September 1955 engraved on it.[2]  The plaintiff was also able to retrieve a copy of the receipt dated 19 September 1987 issued by Po Lin Monastery for the columbarium niche created for the Deceased.[3]

5.For these reasons, I am satisfied that the plaintiff has adduced satisfactory evidence to show that the Deceased had died.  Accordingly, I am also satisfied that the services of the Re-Amended Originating Summons and all subsequent documents in this case, including the notice of this hearing, which were all done in compliance with master’s directions made on the basis that the Deceased had died, are all valid, and there has been due service of these proceedings. 

6.The defendant has not filed any affirmation in opposition to these proceedings.  The present hearing is therefore a hearing for an order under Order 28, rule 4(1) of the RDC.[4]

THE PLAINTIFF’S CASE

7.The Deceased, who was a Buddhist Master, was known as Sik Yu (釋儒) and Sik Yuen Sin (釋玄善).  Sick Juen Ngan (釋淨顏) (“Master Juen Ngan”) was a nun and disciple of the Deceased.

8.The Deceased purchased the Lot and became the registered owner of the same on 26 February 1929.^[5]  The Lot was and is also known as Wai Kwong Yuen (慧光園).  A 2-storey house was erected on the Lot (the “Property”).

9.The Deceased passed away on 8 September 1955.  Since then and until her passing on 18 September 2000, the Lot and the Property were occupied by Master Juen Ngan.

10.In 1962, when the plaintiff was 7 years old^[6], she was given by her parents^[7] to Master Juen Ngan to be raised as a disciple and a nun.  The plaintiff has resided at the Property ever since.

11.On 18 May 1978, Master Juen Ngan transferred her ownership in Ngong Ping Lot No 173 in Ngong Ping, Lantau Island, New Territories (“Lot 173”) to the plaintiff by way of a Deed of Gift.  The reason was that Master Juen Ngan was aging, and wanted the plaintiff to succeed her property.  Master Juen Ngan also vested in the plaintiff the duty to manage the Lot.

12.In the same year, the plaintiff also obtained Crown Land Licences C-12965 and C-12966 for using 2 pieces of Government land adjacent to the Lot for cultivation and erecting a kitchen respectively (the “Government Lands”).

13.Master Juen Ngan passed away on 18 September 2000.  The plaintiff has continued to occupy the Lot, Lot 173 and the Government Lands.

14.Against such background, the plaintiff’s case, simply put, is that she has resided at the Property since 1962 when she became a nun and disciple of Master Juen Ngan.  All along, the Lot and Property were occupied by herself and Master Juen Ngan until 2000 when the latter passed away, and the plaintiff became the sole occupant.  She has been in possession and control of the Lot since 1978, when Master Juen Ngan vested in her the duty to manage the same. She has been paying for the electricity and other utility bills, as well as Government rents and rates for the Lot.  In this regard, copies of the bills that she has preserved are exhibited,^[8] with the demand notes for Government rent and rates issued in her name going as far back as 30 September 1980.

15.Apart from the above, the plaintiff has exhibited contracts on renovation works that had been done on the Lot in 1962 and 2009.[9]  I note the renovation works in 1962 could not have been requested and paid for by the plaintiff as she had just become a disciple of Master Juen Ngan and was 7 years old at that time.  But the renovation in 2009, extensive I must say from the items of work listed out in the contract, was most likely financed and requested solely by the plaintiff. 

16.For these reasons, notwithstanding that the Deceased remained the registered owner of the Lot, the plaintiff asks this court to make an order that she has been in adverse possession of the Lot since 1978, and be granted possessory title of the same.

DISCUSSION

Merits of the plaintiff’s case

17.Mr Tsui, in his submissions, referred to sections 7(2), 13(1) and 17 of the Limitation Ordinance, together with the well-established principles set out in Incorporated Owners of San Po Kwong Mansion and Shine Empire Ltd[10] on adverse possession.  I do not see the need to reproduce them in this decision.  Suffice it to say, I am satisfied that the plaintiff has sufficiently proved her claim in accordance with the statutory provisions and the relevant principles.

18.But before I could close the curtains on this case, there remains one further matter that I would need to deal with, that is, the declaratory relief sought by the plaintiff at this hearing.

Declaratory relief and the rule of practice

19.Mr Tsui in his submissions conceded that declaratory judgments are not, as a rule of practice, given without trial.  But he submitted that this court is not bound to follow it where there are proper merits and to do so would give the fullest justice to the plaintiff.  In support, Mr Tsui referred to paragraph 15/16/2 of the Hong Kong Civil Procedure 2019 and the case of Kam Wai Tim v The Estate of Chow Miu Kwai, Deceased.[11]

20.Pausing here, in the case of Wang Hanzhen v The Personal Representative of Li Kuen (李娟), alias Kwok Chun (覺真),[12] which was also cited to the court by Mr Tsui but not in support of this point, Deputy District Judge MK Liu (as he then was) also mentioned about this rule of practice, but quoted it from a different passage in Hong Kong Civil Procedure 2016, Volume 1.  At paragraph 19/7/20, it is stated that such a rule is “only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and [justice] would not be done if such relief were denied”.[13] I note, however, the hearing before the learned judge was a trial. 

21.Coming back to the case of Kam Wai Tim, I see that the hearing was described as “in Court”.  There was no mentioning of whether the hearing was a trial like the Wang Hanzhen case or simply a hearing in open court, which could be the case for an originating summons hearing.[14] On this question, Mr Tsui, who also acted as the counsel in the Kam Wai Tim case, informed me that the hearing before HH Judge Chow was indeed just a hearing, but he could not recall whether it was in open court.  I have no reason to doubt Mr Tsui.  However, despite that it shared similarity with the present case, there was no discussion by the learned judge on the rule of practice and the reasons for him to depart from it. 

22.I have found and referred Mr Tsui to the case of Wu Chi Kwong & Ors v The Estate of Cheung Man Yau, Deceased,[15] which also shared similarity with our present case.  In that case, Mr Recorder McCoy, SC, hearing an application for default judgment seeking declaratory relief, had to deal with the same problem.  He began with reference to the cases of Wallersteiner v Moir (No. 1)[16] and Patten v Burke Publishing Co. Ltd[17], from which this rule of practice originated.  The learned Recorder then considered the case of Lam Shing Shou v Lam Hon Man & Ors[18] where Madam Justice Chu (as she then was) departed from such rule of practice.  In coming to his conclusion to adopt the same approach as did Chu J, he cited the overwhelming merits of the plaintiff’s case as the ground, and held that it would be wrong for the court not to purify the titles by giving the declaratory relief sought.[19]

23.I also find that there is overwhelming merits in favour of the plaintiff in this case.  Applying the same rationale in Wu Chi Kwong, I therefore find that there is justifiable ground to depart from the said rule of practice, and grant the declaratory relief claimed by the plaintiff.

24.For the sake of completeness, the Lot’s rateable value was HK$19,200.00[20] at the commencement of these proceedings, and section 35 of the District Court Ordinance, Cap 336, does apply to the present case.  This court unquestionably has jurisdiction over these proceedings. 

CONCLUSION

25.In light of the above, I make the declarations that:-

(1)  the plaintiff has been in adverse possession of the Lot as coloured in green on the Lot Index Plan attached to the Re-Amended Originating Summons for a continuous period exceeding 20 years immediately prior to the commencement of these proceedings;

(2)  by virtue hereof and of the provision in the Limitation Ordinance (Cap 347), any rights and interests of the defendant or of his or her successor in title or any person deriving title to the Lot from the defendant or his or her successor in title in respect of the Lot have been extinguished; and

(3)  the plaintiff has acquired possessory title to the Lot.

26.As to costs of these proceedings, Mr Tsui submitted that the plaintiff would seek no order from the court.  I would therefore make no order as to costs of these proceedings, including all costs previously reserved.

27.Lastly, I would thank Mr Tsui for his assistance.

Mr Wilfred Tsui, instructed by Stephen Lo & P Y Tse, for the plaintiff

The defendant was not represented and did not appear