Siu Pak Ming v. Pong Hei Man

HCA 352/2020

[2020] HKCFI 3008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 352 OF 2020

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BETWEEN

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Before:  Deputy High Court Judge MK Liu in Chambers

Date of Hearing:  30 November 2020

Date of Decision:  30 November 2020

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D E C I S I O N

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1.In these proceedings, the plaintiff (“P”) is claiming adverse possession against the defendant (“D”) over a property known as Ground Floor, 7 Wong Chuk Street, Shamshuipo, Kowloon, Hong Kong (“the Property”). On 14 May 2020, D through the solicitors representing him at that time filed a notice of intention to defend. By a summons dated 27 October 2020 (“the summons”), P is now seeking a summary judgment against D.

2.Having read the evidence as to service produced by P, I am satisfied that the summons and all the papers relating to the summons have been duly served on D.

3.P’s case is as follows:

(1)  By an assignment dated 20 June 2006 and registered on 14 July 2006 (“the 2006 Assignment”), the Property was assigned by Madam Lau Toe and Mr Vicete Lu to D at the nominal consideration of HK$1.

(2)  P avers that “the 2006 assignment was highly suspicious as Madam Lau Toe, the purported assignor and signatory to the 2006 assignment, had already passed away in Philippines on 16 August 1984”[1].

(3)  However, P has made it clear that he only provided the information relating to the 2006 Assignment as a background information.  He is not saying that D has obtained the title to the Property by fraud or by any improper means.

(4)  On or before 1 February 2006, P started to occupy the Property by entering into a tenancy agreement with Wing Cheetah Company Limited (“Wing Cheetah”), who was the tenant of the Property at that time.  P continued to occupy the Property as a sub-tenant of Wing Cheetah until about 31 January 2006.

(5)  Notwithstanding ceasing to be a sub-tenant of Wing Cheetah, P remained to be in exclusive possession of the Property.  At all material times, P has all along the intention to possess the Property to the exclusion of all other persons including D and his predecessors-in-title.

(6)  By a notice published in the Gazette on 7 April 2006, Wing Cheetah was struck off the Companies Register and dissolved.

(7)  More than 12 years have elapsed from 1 February 2006 and until the commencement of these proceedings.  Accordingly, at the time of the commencement of these proceedings, D’s title to the Property has been extinguished by the operation of the Limitation Ordinance.

4.Although P has said that the 2006 Assignment was suspicious, P has not said that the 2006 Assignment was void or invalid.  P’s claim against D is proceeded on the basis that D is the registered owner of the Property after the 2006 Assignment.

5.The principles concerning adverse possession have been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy^[2].  Applying those principles to the facts set out in P’s case, I am satisfied that P has shown an adverse possession case against D.  D has not filed any evidence to show any arguable defence to P’s claim.  In the circumstances, no triable issue has been shown, and P is entitled to have a summary judgment against D.

6.P seeks the following reliefs:

(1)  a declaration that D’s title to the Property has been extinguished; and

(2)  a declaration that P has acquired a good possessory title to the Property, and that all rights, title and interest including the ownership and right to exclusive possession and occupation of and in the Property be vested in P.

7.I refuse to declare that “all rights, title and interest including the ownership and right to exclusive possession and occupation of and in the Property be vested in P”.  By successfully establishing adverse possession against D, what P has obtained is a possessory title, no more and no less.  P is not entitled to have an order in terms highlighted in the above[3]. I would only declare that D’s title to the Property has been extinguished, and P has acquired a good possessory title to the Property.

8.Costs should follow the event.  There be an order that costs of these proceedings, including costs of the summons and all costs reserved (if any), be paid by D to P.  Those costs be summarily assessed by this court.  There be leave to P to file and serve a bill of costs for summary assessment within 7 days, and there be leave to D to file and serve a written reply to the said bill within 7 days thereafter.

9.I thank counsel for the assistance rendered to the court.

Mr Simon So, instructed by Wai & Co, Solicitors, for the plaintiff

The defendant was not represented and absent