Wai Kwai Nam Petrus v. The Estate of Li Yau, Deceased

DCMP 333/2017

[2020] HKDC 619

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 333 OF 2017

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Before:  Deputy District Judge Jonathan Wong in Court

Date of Hearing:  13 November 2019

Date of Judgment: 21 August 2020

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JUDGMENT

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A    Introduction

1.By an Originating Summons dated 27 January 2017 (“OS”), the plaintiff claims possessory title of a property known as the portion of Section B of Lot No 24 in Demarcation District No 186, Yau Oi Village, Tao Fung Shan, Sha Tin, New Territories (“Section B”), marked in green colour on the surveyor’s plan annexed to the OS (“Plan”).  The Plan was prepared by Henry Chan Surveyors Ltd (“Surveyor”) following a survey carried out in June 2016 and stated that the occupied area marked in green had an area of 282.3 m².

2.At the hearing, the plaintiff was represented by counsel Mr Colin Leung (“Mr Leung”).  Mr Leung referred to an updated plan prepared by the Surveyor following a survey carried out in April 2018 (“Updated Plan”).^[1] When compared to the Plan, the Updated Plan contains more precise coordinates and dimensions.  According to the Updated Plan, the occupied area of Section B marked in green is slightly reduced to an area of 279 m² (“Land”).  I acceded to Mr Leung’s invitation to proceed on the basis of the Updated Plan.  The Updated Plan is reproduced as Appendix A to this Judgment.

3.It is pertinent to state that the Land is in fact only a part of the area occupied by the plaintiff (“Occupied Area”).  In both the Plan and the Updated Plan, the Occupied Area also includes a portion of Section A of Lot No 24 in Demarcation District No 186 (“Section A”) marked in orange (in the Plan) or in yellow (in the Updated Plan) and a portion of Government Land (“Government Land”) marked in pink.  Section A is to the north and the Government Land to the east of Section B.  However, the plaintiff does not seek any order in respect of Section A and the Government Land.

4.Mr Li Yau (“Deceased”) is the paper owner of Section B. 

5.The Deceased used to be the owner of an adjoining lot, namely Section C of Lot No 24 in Demarcation District No 186 (“Section C”).  A three-storey building was built on Section C.  In April 1986, the Deceased sold Section C to various parties.  The Ground Floor was sold to the Plaintiff’s sister, Madam Wai Kam Siu (“Madam Wai”) and the 1^st Floor to Madam Wai’s three daughters.  The 2^nd Floor and the roof were sold to two other persons as joint tenants.

6.In or around July 1989, the plaintiff paid a visit to Madam Wai.  During that visit, the plaintiff’s brother-in-law, Mr Yung Kam, introduced the plaintiff to the Deceased.  At that time, the plaintiff was a fire officer and was required to relocate from Sai Kung to his quarters assigned by the Fire Services Department in Pokfulam. 

7.The Deceased did not reside in Section B. Unlike Section C where a habitable structure was erected, only various dilapidated structures were erected on the Occupied Area.  Those structures included an electric meter room and a washroom erected on the Government Land.

8.At the meeting in July 1989, the plaintiff requested the Deceased to allow him to use Section B to for storage as he did not wish to move all his furniture and belongings to his quarters in Pokfulam. The Deceased agreed to allow the plaintiff to do so on a complimentary basis and provided his keys to the plaintiff (“Arrangement”).

9.It is the plaintiff’s case that, following the Arrangement, he occupied the Occupied Area exclusively for his own use, in particular storage of his furniture and personal belongings.

10.Shortly after the Arrangement, the Deceased passed away on 30 October 1989.  The plaintiff learned about the Deceased’s demise at the end of 1990 and it is the plaintiff’s case that he has since treated the Occupied Area including the Land as his own.

B    Procedural matters

11.By an order dated 31 July 2017, the Official Solicitor was appointed to represent the estate of the Deceased for the limited purpose of accepting service of the OS.  By another order dated 4 October 2017, it was ordered that the present proceedings be proceeded in the absence of a person representing the estate of the Deceased and that service of the Notice of Appointment to hear the OS and the relevant affirmation/ affidavit(s) be dispensed with.

12.The substantive hearing of the OS was heard by Deputy District Judge C Chow on 14 December 2017.  The hearing was adjourned for the plaintiff to file additional evidence.  After some lapse of time, the plaintiff subsequently filed his second affirmation on 25 September 2019.  The adjourned hearing came before me on 13 November 2019.

C    The plaintiff’s case

13.Following the Deceased’s demise, the plaintiff has paid for the electric bills, water bills, and Government rents and rates for Section B.  The plaintiff has produced evidence of payments of Crown Rent since July 1991, electricity bills since July 1991 and water bills since June 1991.

14.From 1993 onwards, as corroborated by the Surveyor’s observations^[2] of the relevant aerial photographs over the years, the plaintiff carried out various activities within the Occupied Area including planting tomatoes, erecting and demolishing various structures, and erecting meshed wire nets.

15.It is also the plaintiff’s case that Section B has been sufficiently enclosed.  As corroborated by the observations of the Surveyor:-

(1)  Adjoining the north side of Section B is Section A.  Throughout the years, Section A and Section B have been separated by walls;

(2)  A structure was erected on the west side of Section B and it is the plaintiff’s case that he is, and has since the demise of the Deceased been, the only person holding the key to access the main gate of the said structure;

(3)  The east side of the Occupied Area includes the Government Land and has always been enclosed by a wall.  There is a river running outside the said wall.

16.That leaves the south side of Section B.  As mentioned earlier, at the last hearing of the OS, Deputy District Judge C Chow adjourned the hearing to enable the plaintiff to file further evidence.  The learned Deputy Judge was at the time concerned with whether there was any enclosure in respect of the south side of Section B.

17.Adjoining the south side of Section B is Section C.  It will be recalled that the Deceased sold the Ground Floor and the 1^st Floor of the three-storey structure erected on Section C respectively to Madam Wai and her three daughters in 1986.  The three-storey structure and its carpark were built on a high foundation about three metres higher than the lower ground level of Section C.

18.The further evidence from the plaintiff shows as follows:-

(1)  Between 1986 and 1996, one could only access Section B from Section C through the carpark or the lower ground level Section C;

(2)  There was a meshed wire net which would prevent outsiders from entering Section B from Section C’s carpark;

(3)  On the other hand, outsiders could not enter Section B from the lower ground level of Section C without the permission of Madam Wai or the plaintiff as the access to the lower ground level was located behind a gate exclusively for the occupiers of the Ground Floor only;

(4)  In 1996, the plaintiff erected a meshed wire net which fully separated Section B and Section C;

(5)  In 2012, the meshed wire net erected by the plaintiff was replaced by a concrete wall erected by the new owner of Section C.  In November 2012, one Mr Nicholas Regan Johnson entered into provisional sale and purchase agreements to acquire all the floors of the three-storey structure.

D    Analysis

19.The rateable value of Section B renders the present proceedings to be within the jurisdiction of the District Court.

20.I agree with Mr Leung’s proposition, derived from Ho Hang Wan v Ma Ting Cheung as Personal Representatives of Ma Sz Tsang, deceased [1990] 1 HKLR 649, that the Arrangement was a revocable license which was automatically determined by the death of the Deceased.

21.Given the fact that the plaintiff’s cause of action accrued before 1 July 1991, Mr Leung accepted that the applicable limitation period is 20 years (Tang Moon Lam, the person appointed to represent the estate of Tang Shau Ki, deceases (by Order dated 25 June 2014) v Tang Ying Yeung [2019] HKCA 1102).

22.The plaintiff’s evidence is not disputed.  I am satisfied that the plaintiff has sufficiently shown that he has both the factual possession during the relevant period and the requisite intention to possess (Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588). 

23.I bear in mind the fact that the plaintiff was not cross-examined and no full trial took place.  However, based on the strength of the available evidence, I am satisfied that it is appropriate to grant the declarations sought by the plaintiff.

24.Following the hearing, I had requested the plaintiff to seek clarification from the Department of Justice as to whether the Government has any intention to claim bona vacantia in relation to these proceedings (Ho Kwai Sum v The Estate of Chan Siu Wai [2018] HKDC 100). By a letter dated 2 July 2020, the Department of Justice confirmed that the Government does not have any intention to claim bona vacantia.

E    Conclusion

25.For the above reasons, I make the declarations that:-

(1)  The defendant has lost the right to bring any action to recover the property known as the portion of Section B of Lot No 24 in Demarcation District No 186, Yau Oi Village, Tao Fung Shan, Sha Tin, New Territories marked in green colour on Appendix A by virtue of the Limitation Ordinance Cap 347 (“Land”);

(2)  That by virtue of section 17 of the Limitation Ordinance Cap 347, the defendant’s title to the Land has been extinguished.

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

27.Lastly, I thank Mr Leung for his assistance.

Mr Colin Leung, instructed by Tai, Tang & Chong, for the plaintiff

The defendant acting in person, being absent