Man Paul Kim v. 趙淑珠 and Another

DCMP 1609/2015

[2020] HKDC 168

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1609 OF 2015

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Before:  His Honour Judge Kent Yee in Court

Date of Hearing:  16 October 2019

Date of Judgment:  16 October 2019

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JUDGMENT

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1.Mr Man, the registered owner of the land known as Lot No 283 in DD No 98, Yuen Long, New Territories (“the Land”), brought the present action for the recovery of possession of the Land by way of an originating summons dated 17 June 2015. Madam Chiu is named the 1^st defendant, whereas the 2^nd defendant is identified as “all other occupants”.

2.Subsequently, the action was converted into a writ action and Mr Man filed his statement of claim whereas Madam Chiu filed her defence and counterclaim.

3.By her counterclaim, Madam Chiu counterclaims for, among other things, a possessory title to the Land based on her plea of adverse possession. 

4.As indicated by the letter of Mr Man’s solicitors dated 3 October 2019, Mr Man confirms that he shall not attend the hearing of the trial and he is not prepared to proceed with his claim. Further, he had no objection to the relief claimed by Madam Chiu.  As such, this trial only concerns the counterclaim of Madam Chiu and it is unopposed.

5.The law relating to adverse possession is well settled.  Madam Chiu, in order to establish her plea of adverse possession of the Land, has to, in accordance with the Limitation Ordinance, establish her factual possession of the land with the necessary animus possidendi for the requisite period of time. 

6.In this particular case, given Madam Chiu’s allegation that she has had the exclusive possession of the Land since the mid-1950s, the requisite period should be 20 years. 

7.There are allegations of factual possession of the Land set out in paragraph 3 in Madam Chiu’s pleading. 

8.I do not find it necessary to set them out in this judgment.  Suffice it for me to point out that Madam Chiu’s main allegation is that, in or around 1955, she and her late husband came to settle and live in a large area, including the Land, in Yuen Long and carried on the activities of farming and livestock-keeping in the whole area throughout the years.  Her possession and enjoyment of the area was both peaceful and exclusive until 2002, when Mr Man came forward and claimed possession of the Land.  She had a large family comprising 10 children and most of them spent substantial period of time on the Land. 

9.The allegations in the pleading are supported by the live evidence of Madam Chiu herself.  She also called her son Mr Lam Chau Lung, her daughter Madam Lam Wai Ying, and her daughter-in-law Madam Cheung Fung Yui to be her witnesses.  All these witnesses have adopted their witness statements as their evidence and I have read their witness statements.  By and large, they are consistent with and supportive of the pleaded allegations, though I am well aware that some of them were born well after 1955.

10.Madam Chiu’s case is also supported by the expert evidence by way of an expert report prepared by Henry Chan Surveyors Limited.  In the expert report, the land surveyor examined various aerial photos of the Land and indeed the whole area and detailed the development of the area.  It lends support to the allegation of Madam Chiu that cultivation or farming activities started in 1955 and fencing features could be discerned in the area.

11.All this evidence is not contradicted by any evidence and they are not inherently improbable.  There is no reason why I should not accept all this evidence in its entirety.

12.In the circumstances, this court comes to the conclusion that Madam Chiu’s claim for adverse possession of the Land is borne out by evidence on a balance of probabilities.  Her counterclaim must be accepted and she is entitled to the two declarations pleaded/sought in her counterclaim.

13.I therefore dismiss Mr Man’s claim with no order as to costs, as per the agreement between Madam Chiu and Mr Man, and all previous costs orders made between them should be waived.

14.I also enter judgment in favour of Madam Chiu and grant her the two declarations sought.

15.Given her agreement with Mr Man in regard to costs of this action, I do not think I need to make any costs order in her favour.

16.With respect to Madam Chiu’s own costs, it should be taxed in accordance with the Legal Aid Regulations, with certificate for counsel.

The plaintiff represented by Rene Hout & Co and absent

Mr Tommy Cheung, instructed by Zhong Lun Law Firm, assigned by the Director of Legal Aid, for the 1^st defendant

The 2^nd defendant was not represented and did not appear