Lo Shu Chun v. Pun Tam Sui King

DCMP 1467/2018

[2020] HKDC 364

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1467 OF 2018

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JUDGMENT

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1.The plaintiff commenced these proceedings for declaration of his possessory title of a residential property in Tsuen Wan, New territories on the ground of adverse possession. The defendant is the registered owner of the property.

Background

2.The property in question is situated on the 3^rd Floor of No 12 Ming Lun Street, Kowloon (“the Property”).

3.The plaintiff commenced these proceedings on 31 May 2018.  On the basis of the alleged adverse possession, he claims declaration that:

(1)     he has been in adverse possession of the Property for a period exceeding 20 or alternatively 12 years prior to the commencement of proceedings and thereby acquired the possessory title, interest and rights over the Property;

(2)     the defendant has lost the right of action to recover the Property by virtue of section 7(2) of the LO; and

(3)     the title of the defendant in the property has been extinguished by virtue of section 17 of the LO.

4.The defendant has never entered appearance.

5.These proceedings were first scheduled to be heard on 26 February 2020. Because of the general adjournment of court proceedings occasioned by the public health situation, the hearing has been re-fixed and hence the hearing today.

6.The defendant is absent today.

7.The plaintiff asks for summary disposal of these proceedings.

Service

8.By the order of HHJ Tsui dated 21 January 2020, service of the notice of appointment shall be deemed good service by way of advertisement in the specified Chinese newspaper in Hong Kong.  For the subsequent adjournment until today, such direction has been maintained by the direction of this court.  The affirmation of service filed on behalf of the plaintiff shows that service has been effected by this mode.

9.O28, r3A of the Rules of the District Court, Cap 336H requires an originating summons to be heard in open court unless the court directs otherwise.  However, it is recognized that at the first hearing, which is in chambers open to public, the court may summarily dispose of the matter if liability is established: see O28, r4(1); Hong Kong Civil Procedure 2020 (Vol.1) at 28/3A/2.

10.I see no reason why the plaintiff should not be allowed to proceed.

The principles

11.The relevant provisions of the LO are:

Section 7(2)

“No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

Section 17

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

12.He who claims possessory title on the ground of adverse possession has the burden of proving by cogent evidence his continuous and exclusive factual possession of the property in question for the requisite period, and that he did so with the requisite intention: see Powell v McFarlane (1979) 38 P&CR 452; Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55[1].

The plaintiff’s case

13.The plaintiff deposed to the following in his affirmation.  Of course, the evidence is uncontested.

14.The plaintiff was born in 1954 in the Mainland.  He moved to Hong Kong with his mother, the late Cho Sau Ying, in 1962.  That was when he was about 8 years old.  He was a student then.  The plaintiff and his mother then resided in a property in Oaklands Path, Bonham Road, Hong Kong.

15.In about 1965 or 1966, the plaintiff’s mother started to work at a restaurant known as Czarina Restaurant at No 25 Bonham Road.  The plaintiff and his mother began residing at the staff quarter provided by the restaurant, and got to know the staff there.  Among them was colleague 潘惠貞, otherwise known to the plaintiff as Auntie Poon (“Poon”).  A few months later, Poon left for work at another nearby restaurant called 巴黎餐廳. However, the plaintiff and his mother maintained the acquaintance and contact with Poon.

16.At the time, Poon, her husband 譚樑 (“Tam”) and her husband’s mother (ie, Poon’s mother-in-law) as well as the defendant lived at the Property.  The plaintiff understood from his mother that the defendant was the younger sister of Tam and thus sister-in-law of Poon.  Tam and Poon had no children.  Poon also had a rented flat in Sai Ying Pun, which she kept for about 2 to 3 years, and the plaintiff’s mother would also visit her there.  Otherwise, Poon lived at the Property.

17.The defendant moved out of the property in the late 1970s or early 1980s.  The plaintiff and his mother have no knowledge about her whereabout since then.  In about 1980, the mother of Tam and the defendant passed away.  5 or 6 years later, Tam also passed away.  Poon became the sole resident of the Property.  Poon had also let one of the rooms of the Property to a 梁友興.

18.In about 1991, Poon was allotted government housing at Hing Wah Estate in Chai Wan.  Before moving there, Poon passed the keys to the Property to the plaintiff, and told him to take care of the Property.  Mindful of the fact that the property is owned by the defendant, whose whereabout was unknown, Poon told the plaintiff that the Property would be his if the defendant could not be located.  The plaintiff confessed that he made no effort of finding the defendant, as he had no clue about her or her other relative.

19.The plaintiff has since the removal of Poon been maintaining the Property.  He claims to have done so, treating the Property as his.

20.In September 1994, the plaintiff’s mother passed away.  Until then, the friendship between her and Poon endured.

21.In 2011, Poon moved into an elderly nursing home in Tsuen Wan managed by the Hong Kong Society for the Aged.  She passed away on 18 June 2013.  The plaintiff was the one who arranged and paid for her funeral.

22.The plaintiff gives the following particulars of his occupation and maintenance of the Property since 1991:

(1)     He was responsible for all the renovation and payment of bills for the Property, including Government rent, rates, water and electricity, notwithstanding that some of the receipts and records produced still bore the name of the defendant.

(2)     In 1998, the plaintiff caused the Property to be renovated at his expense with a view to letting it out.  Between mid-1998 and April 2018, the plaintiff has let the Property to various tenants, the last tenancy coming to an end in April 2020.  The rent would be received by a Mr Lam of an estate agent, who would deposit the same into the bank account of the plaintiff.  The plaintiff acknowledged that certain tenancy agreement referred to him as the agent of the landlord, while another agreement referred to him as the tenant. However, he explains that the documents were prepared by and at the advice of Mr Lam, the estate agent.

(3)     The plaintiff confirms that in all these years, no one has ever interfered with his handling of the Property.

23.For the purpose of applying for direction for substituted service of these proceedings, which, as mentioned, the court has granted, the plaintiff has adduced by affirmation evidence of the result of search into the marriage and the death registers.  Of the registrations of the death of three persons bearing the same name as the defendant, the administrators of the estate of two of them have replied confirming that the deceased was not the defendant, while the administrator of the estate of the remaining one has not responded.

Discussion

24.On the basis of his evidence, the plaintiff first came to have possession or constructive possession of the Property when Poon moved out in about 1991.  According to him, Poon entrusted the Property to him and asked him to take care of the Property, but also told him that the Property could be his if he could not locate the defendant.  It was on such basis that the plaintiff began to handle the Property and to incur expenses that perhaps only the owner or a person who has proprietary interest would be expected to do.

25.Solely on the basis that the plaintiff was entrusted to take care of the Property, his possession or control of the Property factually cannot be detached from the permission of Poon, who was then in a de facto position to grant to him.  Possession or control in such circumstances should not be categorized as that with the requisite intention to possess the same adverse to the owner and the entire world.

26.Solely on the basis that Poon promised the plaintiff interest in the Property, when she moved out, the Property was simply not for her to give away as she did not have the title to do so.  Further, such oral gift would have been invalid and ineffective as disposition of interest in the Property as a matter of law.  The plaintiff, according to the evidence, has indeed caused improvement to the Property and incurred expenses in its maintenance.  However, such detriments caused by the plaintiff’s handling of the Property on the force of Poon’s promises would not have given rise to proprietary estoppel, as Poon, who is not the interest owner, is not the relevant party to be bound by that.

27.In the circumstances, what the plaintiff has done about the Property since 1991 provided the mere backdrop, and it was really his possession by way of the tenancy that he has created in respect of the Property, as well as what he did to the Property in preparation of such tenancy, that he has to count on for the purpose of his claim.  This happened in 1998.

28.In Cheung Yat Fuk v Tang Tak Hong & Ors (2004) 7 HKCFAR 70, a squatter for years on the land let it to a tenant for a further 30 years.  The final court held that sections 12(3) and 13(3) of the LO lent strength to the conclusion that a person wrongfully intercepting the rent from the land receivable by the owner under the owner’s lease shall be deemed to be in possession of the land adverse to the owner.  This supported the conclusion that when a squatter granted a tenancy and received rent, he was acting inconsistently with the title of the paper owner and that put the squatter in adverse possession of the land through the tenant.  The squatter could in this way acquire a possessory title to the land through the tenant’s occupation of the land.

29.The plaintiff was to begin with not a squatter.  He entered into possession of the Property with the blessing of Poon, though she was not the owner.  However, his position, in my view, should not be worse than that of a squatter from the point when he handled the Property with a view to letting it out, and then (exclusively) occupied the Property through his tenants as well as keeping the rent.  The uncontested evidence in respect of the other aspects of the plaintiff’s occupation and control of the Property, in addition to his making no effort of locating the defendant or any of his relatives, which he said he had no clue to embark upon, also reinforces the actual possession with the requisite intention to exclude the owner and the world.

30.Accepting the plaintiff’s evidence, and on the basis of the submission on his behalf, I am satisfied that the plaintiff has proved his possessory title to the Property by way of continuous and exclusive possession with the requisite intention as the owner since at least 1998, and thus exceeding the limitation period by the time of the commencement of these proceedings.

Relief

31.Whilst it is not the practice of the court to grant declaratory relief by default, this is permissible if the fullest justice would not be done by denying the relief to the plaintiff who has established his entitlement and right: see Hong Kong Civil Procedure 2020 (Vol.1) at §19/7/20.  For the plaintiff, the declaratory relief claimed is probably the only effective relief that he could obtain from the court for manifesting his possessory title to the Property.  I therefore grant the declaration as sought in the originating summons.

Costs

32.Though costs are claimed in the originating summons, counsel concede that there should be no order as to costs.  In the absence of contest, this must be the right order, which I so make.

Mr Au Lut Chi, instructed by K T Lo & Co, for the plaintiff

The defendant was not represented and absent