Wong Kin Keung, The Executor of the Estate of Wong Shui Fun, Deceased and Another v. Chan Yau Kai and Another

HCA 2952/2015

[2020] HKCFI 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2952 OF 2015

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BETWEEN

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Before:  Hon Au-Yeung J in Chambers

Date of Written Submission by the 1^st and 2^nd Plaintiffs:  3 March 2020

Date of Decision:  2 April 2020

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D E C I S I O N

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Introduction

1.On 10 July 2018, upon default of the Defendants in serving a defence, Chung J ordered that judgment be entered against the Defendants for:

(1)  A declaration that the Defendants have lost the right to bring any action to recover the whole portion of land in Lot No 1713 in Demarcation District No 91, North New Territories, Hong Kong (“the Land”), by virtue of section 7(2) of the Limitation Ordinance, Cap 347;

(2)  A declaration that by virtue of section 17 of the Limitation Ordinance, Cap 347, the Defendants’ title to the Land had been extinguished; and

(3)  A declaration that the Plaintiffs have acquired all the title, rights, benefits and interests including the right to exclusive physical occupation of and in the Land;

(“the Judgment”).

2.Registration of the Judgment at the Land Registry was withheld because the Judgment did not specify whether the Plaintiffs were to hold the Land as joint tenants or tenants-in-common. 

3.By a summons filed on 8 January 2020, the Plaintiffs sought leave to amend paragraph 1(3) above to state that it was the Plaintiffs in joint tenancy who have acquired all those rights.

Background

4.The action was first brought by the 1^st Plaintiff (Father) and the 2^nd Plaintiff (Son) against the Defendants (registered owners) for adverse possession.  In the course of the proceedings, the Father died and the Son as his executor got leave to represent the Father and carry on the proceedings.

5.As the judgment was entered by default, it is relevant to consider the statement of claim for the background.

6.In around 1967, the Son’s Uncle (Wong Shui Yee) bought the Land from the former owner/occupier for $4,000 pursuant to an agreement.  After completion of the agreement, the Uncle delivered the title documents, with a view to assigning all his title, rights, interests and benefits under the Agreement, to his father (“the Grandfather”) as a gift.

7.The Grandfather entered into possession in 1967.  At his invitation, the Father had lived at the Land since around 1970 and the Son since his birth in 1973.  After the Grandfather passed away in 1975, all his rights, title, interests and benefits of and in the Land were succeeded by and/or transferred to the Father and/or his family members on intestacy.  The Father and the Son continued to be in exclusive possession and control of the Land, living there with their families without interruption.

8.Prior to issue of the Writ, the Father and the Son have been in possession of the Land for over 20 years as residence and raising of livestock.

The entitlement of the Plaintiffs

9.Where there is more than one squatter who have possession simultaneously, the title is held by the squatters as joint tenants in the absence of evidence of a contrary intention, but one alone of the joint squatters cannot claim alone: Jourdan QC and Radley-Gardner, Adverse Possession, 2^nd ed, §§20-68 to 20-71, cited in Ng Fuk Shing v Ng Fuk Nam & anor [2018] HKCFI 2528, §52, DHCJ Marlene Ng (as she then was).

10.It was an accidental omission to consider the issue of joint tenancy before the learned judge gave his order.  Applying the principle in paragraph 9 to the clear facts pleaded in the statement of claim, it was a plain case of the Father and the Son having possession of the Land simultaneously at all relevant times and when the action was commenced.  Chung J would have held that the Father and Son have acquired the Land as joint tenants.  The amendment would not prejudice anyone.

11.I give leave to amend the Judgment as sought under the slip rule of Order 20, rule 11 of the Rules of the High Court.

Written submission by Cheung & Choy, for the 1^st and 2^nd Plaintiffs