Ma How Jee v. The Personal Representatives of Mah Shun Chew, Deceased

DCMP 660/2018

[2021] HKDC 95

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 660 OF 2018

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BETWEEN

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Before: Deputy District Judge Timon Shum in Court

Date of Hearing: 6 September 2019

Date of Judgment: 26 January 2021

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JUDGMENT

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Introduction

1.This is the substantive hearing of an originating summons taken out by the plaintiff Ma How Jee (“MHJ”) on 1 March 2018. 

2.MHJ’s claim concerns a property known as The Remaining Portion of Subsection 4 of Section G of Kowloon Inland Lot No 1094 and The Extensions Thereto together with the exclusive right to use occupation and enjoyment of the whole of 2^nd Floor, No 14 Lung To Street, Kowloon (“the Property”).

3.The registered owner of the Property is Mah Shun Chew who passed away on 21 April 1962.  Mah Shun Chew was the grandfather (“the Grandfather”) of MHJ.

4.In these proceedings, MHJ is claiming for adverse possession of the Property against the defendant The Personal Representatives of Mah Shun Chew, Deceased.

5.Pursuant to Master’s order dated 8 February 2019, the Official Solicitor was appointed to represent the estate of the Grandfather, limited to the purpose of accepting service of the originating summons.

Background

6.The background of these proceedings has been stated in the 4 affirmations and the exhibits filed by MHJ.

7.The Grandfather became the registered owner of the Property on 6 July 1961.  He was married to Ma Wong Mee Kiu. The Grandfather and his wife passed away intestate on 21 April 1962 and 8 August 1966 respectively. 

8.Search conducted by MHJ’s legal representatives at the Probate Registry on 9 August 2018 revealed that 2 applications for grant of probate had been made on 6 June 1974 and 25 June 1975 respectively under HCCV 843/74 and HCCV 1023/75 by solicitors’ firm Messrs F Zimmern & Co.  But no grant had been issued and no caveat was filed against the estate of the Grandfather.

9.As the Grandfather died intestate on 21 April 1962 before the passing of the Intestates’ Estates Ordinance (Cap 73) on 7 October 1971, MHJ was advised by her legal advisers that succession to the Grandfather’s estate was governed by Chinese customary law ie the Qing Code.

10.MHJ relies on Wong Yuk Wah v The Personal Representative of the Estate of Wong Tak, Deceased, HCMP 2543/2015, where Madam Justice B Chu said this at paragraphs 11 to 12:-

“11. Wong Tak died intestate in the 1940s before the coming into force of the Intestate’s Estate Ordinance, Cap 73 (“IEO”) on 7 October 1971.  The IEO only applies to any person dying intestate after the commencement of the IEO.

12. Where a Chinese person died intestate domiciled in Hong Kong before the commencement of the IEO on 7 October 1971, succession to estate on intestacy was governed by Chinese customary law.  The then governing Chinese customary law was the Qing Code.”

11.MHJ further submits that according to the Qing Code, the only person that would be entitled to inherit the Grandfather’s estate would be his son Ma Leung Ying who was the father of MHJ (“the Father”).  The Father was the only son of the Grandfather and the other 3 children of the Grandfather were female. The Father died on 4 January 1972 at the age of 47.

12.The relevant article in the Qing Code is Article 88(1) which states that:-

“分析家財田產, 不問妻妾婢生, 止以子數均分”

13.MHJ relies on Liu Ying Lan v Liu Tung Yiu & Anor, HCA 6693/1992, where Deputy High Court Judge Andrew Cheung (as he then was) said at paragraph 28:-

“28. First, there is a distinction between succession to a male line and succession to or inheritance of property.  As a very general rule, the eldest son or the eldest son from the principal wife is the heir (“A”) of his father.  Upon his father’s death, he carries on his father’s line.  This is succession to the male line.  However, when it comes to succession to the property or inheritance, the father has no right to make a will in the English sense of the word to dispose of his property after his death.  Instead, upon his death, all the sons of the father enjoy an equal share, and the heir does not have any privilege over his brothers.  As for the daughters, daughters who are already married at the time of death have no claim to the property at all.  Unmarried daughters have a claim to maintenance until marriage and upon marriage a claim for dowry.  As for the widow, she has a sort of life interest claim to the property of her deceased husband for maintenance during her lifetime.  The claim ceases upon her death.  During her lifetime, her sons cannot insist on dividing up the property of their late father without her consent, given her prior claim to maintenance for life.”

14.The Father was a beneficiary of the Grandfather’s estate according to the Qing Code.  But being a beneficiary does not mean that the person has any beneficiary interest in any specific asset of the estate.  A beneficiary only has an inchoate interest in the estate and a right to have the estate duly administered. 

15.MHJ relies on Re Yuen Kiu Kwan [2009] 3 HKLRD 371 where Susan Kwan J (as she then was) said this at paragraphs 29 to 30:-

“29. It would suffice to quote the relevant passage of Ungoed Thomas J in the last cited case:

It is well established that the estate being administered by a personal representative is the personal representative’s property. Of course he has fiduciary duties with regard to it and their performance will be secured by the court; and he may be liable for breaches of his fiduciary duties. But no legatee, devisee or next-of-kin has any beneficial interests in the assets being administered.

30. During the period of administration of the estate, Ms Lo has no legal or equitable interest in the assets comprised in the estate.  Her only right, as putative legatee, is to have the estate duly administered by the administrator in accordance with law. Whatever property that comes to the applicant by virtue of his office as the administrator comes to him in full ownership, without distinction between legal and equitable interest, and the whole property is his.  He is to hold the property for the purpose of carrying out his duties and functions as the administrator, subject to the direction of the court.”

16.According to MHJ, the Father had no beneficial interest in the Property. There had been no formal administration of the Grandfather’s estate for any beneficial interest to pass to him.  Also, there had been no unequivocal act by the Father to infer that he had treated the Property as his own.

17.After the Father passed away on 4 January 1972, letters of administration under Grant No 381 of 1974 were issued to MHJ’s stepmother Wong Sau Yin (“the Stepmother”) in respect of the Father’s estate on 15 March 1974. The schedule of property attached to the letters of administration did not include the Property.  

18.MHJ concludes that the Property remains as the estate of the Grandfather.  That is why she is suing the personal representatives of the Grandfather in these proceedings.  As she could not find anyone to accept service of the originating summons on behalf of the personal representatives, she applied to the court for an order that the Official Solicitor be appointed to represent the estate of the Grandfather, limited to the purpose of accepting service.  Her application was granted by the Master on 8 February 2019.

The plaintiff’s family relationships

19.MHJ outlines the relationships with her family members.

20.The Grandfather and his wife had 4 children.  The Father was the only son.  The other 3 children were female.  MHJ has not maintained contact with them and she does not know if they are still alive.  Even if so, they would be at least 94 years old in 2018.

21.The Father was married to MHJ’s mother 黃雁娟 (“the Mother”).  The Mother gave birth to MHJ and her brother 馬子駒 (“the Brother”).  MHJ was born on 14 August 1948.  Soon after giving birth to the Brother, the Mother passed away in Taishan, Mainland China.  MHJ was then 2 years old.

22.The Brother and his family emigrated to Canada in about 1971.  They last met with MHJ in 1997 when they visited Hong Kong.  But the meeting ended in unhappiness due to an argument.  Since then, MHJ has not been in contact with them.  Whether the Brother is still alive is an unknown.

23.After the Mother passed away, the Father remarried the Stepmother.  She was described as the lawful widow of the Father in the letters of administration dated 15 March 1974.

24.The Father and the Stepmother had 4 children.  They are 馬娉嫻 (“Stepsister”), 馬明駒 (“Stepbrother 1”), 馬子聰 (“Stepbrother 2”) and 馬子驣 (“Stepbrother 3”).

25.The Stepmother and Stepbrothers emigrated to Canada in 1985.  MHJ has never contacted the Stepmother after her emigration.  She used to keep in touch with the Stepbrothers in writing.  When the Stepbrothers and their families returned to Hong Kong for visit, they would meet with MHJ.  But MHJ has not contacted them since about 2002.  On that occasion, MHJ sent them letters asking for urgent financial help for her daughter but the Stepbrothers did not reply.  After this, MHJ has not contacted them again.

The plaintiff’s occupation of the Property

26.Before her emigration to Canada in 1985, the Stepmother allowed the Stepsister to live in the Property with her family.

27.Around late September 1989, the Stepsister moved out of the Property with vacant possession and the keys being passed to MHJ.  The Stepsister’s husband 鄭焯生 said to MHJ that they were returning the Property to her (俾番間屋你).  MHJ was told that the Stepsister and her family were moving to Butterfly Estate in Tuen Mun.  But they did not give her their full address or telephone number.  MHJ has no means to contact them.

28.After taking over the Property, MHJ arranged for change of lock.  She engaged a contractor to carry out simple interior renovation and repairs which included whitewashing of the walls and replacing broken window glasses.  She wanted to make the Property more suitable for habitation.  She also applied to the necessary authorities to become recipient of rates demand notes and utility bills.

29.When the renovation and repair works were completed, MHJ’s husband Cheung Tak Ching (“the Husband”) moved into the Property with their dogs. 

30.MHJ and her children were then living in another property in Tsz Wan Shan which was owned by MHJ’s daughter.  This property was later repossessed by the mortgagee bank.  So MHJ and her children moved into the Property to live with the Husband around 2003.  Since then, MHJ and her family have been living in the Property.

31.From the time of taking over the Property in September 1989, MHJ and her family have been paying for the rates and utility bills.  They also contributed to the sinking fund of the incorporated owners and repair and maintenance works for the building of which the Property forms a part.  

32.Throughout the years of occupation, MHJ and her family had carried out various renovations and repair works to the Property so as to keep the standard of the living environment.  These included repairing the exterior parts of the Property, removing unauthorized structures, replacing old windows, door gate, smoke door, electricity supply system, pumping system and water supply system.

33.Since September 1989, MLJ has regarded the Property as her own property.  The same has been exclusively used by her and her family members as residence without interruption.  No one else has claimed to be the owner of the Property.  She says she has made it perfectly plain to the whole world at large by conduct actions and words that she has the intention to possess the Property to the exclusion of the world at large.

The plaintiff’s last encounter with Stepsister

34.MHJ’s last encounter with the Stepsister was around March 2018.  On that occasion, the Stepsister turned up at the Property with her daughter and another young lady whom the Stepsister introduced as Stepbrother 1’s daughter. The Stepsister said Stepbrother 1’s daughter from Canada would like to see her father’s home during childhood.  MHJ let them in to take a look but there was no exchange of words except “thank you” and “bye”.  The 2 sides did not exchange contact details.  This was the only occasion for MHJ to meet the Stepsister since she moved out of the Property with her family in September 1989.

DISCUSSION

35.The defendant is absent in these proceedings.  The evidence of MHJ is unchallenged.  I have considered the same.  I accept MLJ’s description of her family history and how she came into possession of the Property and her legal submissions which lead to the conclusion that the Property remains as the estate of the Grandfather.

36.The next question is whether MHJ has established adverse possession against the personal representatives of the estate of the Grandfather. 

37.To establish a claim for adverse possession, a plaintiff needs to prove: -

(a) factual possession; and

(b) intention to possess.

Law on factual possession

38.On factual possession, Megarry & Wade: The Law of Real Property (9th Edition), paragraph 7-030 states the following: -

“(a) Factual possession.  “Possession is a legal concept which depends on the performance of overt acts”.  For a squatter, S, to prove factual possession, S must show that:-

(i) she had an appropriate degree of physical control of the land;

(ii) her possession was a single possession: there can be a single possession by several squatters jointly but not severally;

(iii) her possession was exclusive: a squatter cannot be in possession at the same time as the disposed owner; and

(iv) she dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done.”

39.Paragraph 7-031 continues to state that:-

“Whether the squatter has taken a sufficient degree of control is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land in commonly enjoyed. The type of conduct which indicates possession must vary with the type of land. In the case of open land, absolute physical control is normally impracticable. There are obvious difficulties in establishing a squatter’s title to a part of a swamp; but where marshy land is virtually useless except for shooting, shooting over it may amount to adverse possession. In many cases adverse possession cannot in the nature of things be continuous from day to day. Enclosure is the strongest possible evidence of adverse possession, but is not indispensable, nor is it necessarily conclusive. But where the adverse possessor performs clear acts of ownership, he or she does not have to show that they inconvenienced or otherwise affected the owner …”

40.In Birkenhead Properties And Investments Limited v Lam Kai Man & Others, HCMP 1588/2012, Mr Justice To expressed his view on the requirement of factual possession at paragraph 10:-

“ … Broadly speaking, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so: Powell v McFarlane.”

Finding on factual possession

41.Based on evidence in front of me, I find that MHJ has established factual possession of the Property since late September 1989.  She has produced the rates demand notes covering almost the full period from October 1989 to September 2019.  These rates demand notes bear her name.  Water bills issued to MHJ have been produced covering almost the full period from December 1995 to March 2019.  Electricity bills issued to MHJ’s family member have been produced covering period from March 2018 to July 2019.  Receipts issued by the incorporated owners to MHJ indicate that MHJ contributed to the maintenance and repair works of the building of which the Property forms a part on 30 November 2013, 31 December 2013 and 28 January 2014.  There are other receipts which show that MHJ incurred expenses for maintenance and repair works for the Property or for the building of which the Property forms a part in 1993, 1994, 1999, 2003, 2006, 2007 and 2009

42.I am satisfied that MHJ and/or her family members have been in possession of the Property since late September 1989.  She has been dealing with the Property as an occupying owner might have been expected to deal with it and nobody else has done so.

Law on intention to possess

43.On intention to possess, Megarry & Wade: The Law of Real Property (9th Edition), paragraph 7-032 states the following:-

“intention to possess.  The squatter must have “an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title”.  As regards that intention:

(i) It is an intention to possess and not an intention to own.

(ii) It is an intention to exclude the world in the squatter’s own name and on his own behalf.

(iii) It is an intention to possess and not an intention to dispossess.  Accordingly, the intention can be sufficiently established even if both O and S mistakenly believe that the land belongs to S, or where S did not realise that she was trespassing on another’s land.

(iv) It is an intention for the time being to possess the land.  The intention does not have to be to exclude the owner with the paper title in all future circumstances.  As regards O, the intention can only be to exclude O “so far as is reasonably practicable and so far as the processes of the law will allow.”  Accordingly, it is not fatal to S’s claim that she would have been willing to pay for her occupation had she been asked to do so by O.

(v) The intention to possess must be manifested clearly, so that it is apparent that S was not merely a persistent trespasser, but was seeking to dispossess O.  If S’s acts are equivocal then S will not be treated as having the requisite intention to possess.  A request to the dispossessed owner to exclude trespassers is inconsistent with an intention to possess.  However, an acknowledgement of O’s title, although it will cause time to start to run afresh, will not necessarily be inconsistent with S having the necessary intention to possess.”

44.I have considered the case of JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 where Lord Browne-Wilkinson stated the following points about intention to possess:-

“A similar manifestation of the same heresy is the statement by Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, 23 that the paper owners “could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi – ie, occupation with the intention of excluding the owner as well as other people”. This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell’s case 38 P&CR 452, 471-472 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an “intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.”

“…… The question in simply, whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

45.Another authority on the issue of intention to possess is the Court of Final Appeal’s judgment in Wong Tak Yue v Kung Kwok Wai David & Anor (1997-98) 1 HKCFAR 55 at 69A-C where Chief Justice Li stated that:-

“The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

46.In Birkenhead Properties And Investments Limited v Lam Kai Man & Others, HCMP 1588/2012, Mr Justice To commented on the requirement of intention to possess at paragraph 11:-

“By contrast, for a squatter, he has to make it perfectly plain to the world at large by his actions or words that he is enjoying the land openly as of right as if he is the rightful owner.”

Finding on intention to possess

47.In the present case, I find that MHJ has established an intention to possess the Property.  This intention was clearly manifested when she arranged for changing of the door lock upon taking possession of the Property in late September 1989.  Her subsequent acts of paying for the utilities and contributing to the maintenance and repair works for the Property and the building of which the Property forms a part show that she is treating the Property as her own.  When the Stepsister, her daughter and Stepbrother 1’s daughter visited the Property in March 2018, she let them in and saw them out as if she were the rightful owner of the Property.  Her conduct showed that she did not recognize the Stepsister, who formerly lived at the Property, or anyone as having any right in the Property. I am satisfied that MHJ has evinced an intention to exclude the whole world at large including the paper owner. 

Conclusion

48.I accept that MHJ has established factual possession and an intention to possess the Property since late September 1989.  Her occupation is not under a lawful title or with the permission of the paper owner ie the personal representatives of the Grandfather.  Her possession must be adverse against the title of the paper owner.

49.Under section 7(2) of the Limitation Ordinance (Cap 347), the limitation period to bring an action to recover land is 12 years.  Prior to 1 July 1991, the limitation period was 20 years.

50.Under section 38A (1) of the same Ordinance:-

“The time for bringing proceedings in respect of a cause of action –

(a) to recover any land;

…

which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991).”

51.In this case, MHJ and/or her family members entered into possession in late September 1989.  The right of action for the paper owner to recover possession accrued before 1 July 1991 and the action for recovery of land is statue-barred after 20 years from the date the right of action accrued.  (See: Wong Tak Yue v Kung Kwok Wai David & Anor (1997-98) 1 HKCFAR 55 at 67F-H and Yu Siu Cheuk v Realray Investments Limited, CACV 181/2009)

52.MHJ has been occupying the Property for more than 20 years.  The defendant’s right of action for recovery of the Property is statue-barred.

53.According to section 17 of the Ordinance, the title of a person to the land shall be extinguished after the expiration of the limitation period.

54.On 8 February 2019, the Master ordered that the Official Solicitor be appointed to represent the estate of the Grandfather, limited to the purpose of accepting service of the originating summons.  At the call over hearing before me on 16 July 2019, I ordered that MHJ be at liberty to proceed in the absence of any person representing the estate of the Grandfather pursuant to Order 15, Rule 15 of the Rules of the District Court (Cap 336H).  I further directed that the originating summons and my order about the substantive hearing date be posted up in a conspicuous place at the entrance of the Property continuously for 14 days before the hearing.  I am satisfied that the defendant or any other person which might have a claim in the Property has been sufficiently notified.  Therefore, I grant the following reliefs to MHJ:-

(a) A declaration that the defendant’s title to the Property has been extinguished and the defendant is barred from recovering the same from the plaintiff by virtue of sections 7(2), 17 and 38A(1) of the Limitation Ordinance (Cap 347).

(b) A declaration that the plaintiff has acquired a possessory title to the Property.

(c) Costs should follow the event.  I make a costs order nisi that the defendant do pay the costs of these proceedings (including all costs reserved), to be taxed if not agreed, with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.

(d) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

55.Lastly, I thank Mr Li, counsel for the plaintiff, for his assistance.

Mr Kevin Li, instructed by Keith Lam Lau & Chan, for the plaintiff

The defendant was not represented and did not appear