Cheng Yuk Leung v. The Personal Representative of the Estate of Cheng Ah Mang also known as Cheng Wai Man, The Deceased

DCCJ 4594/2019

[2021] HKDC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4594 OF 2019

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Coram: His Honour Judge H. Au-Yeung (Paper Disposal)

Date of Written Submission: 18 February 2021

Date of Judgment: 26 February 2021

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JUDGMENT

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THE APPLICATION

1.This is an application for judgment in default of Notice of intention to defend as well as of Defence pursuant to Order 19 rule 7 of the Rules of the District Court (Cap.336H) made by an ex-parte summons filed on 22 January 2021 (“the Summons”). 

2.The plaintiff’s claim is for declaratory relief for adverse possession against the defendant.  The defendant was, and still is on the record, the registered owner of the subject property situated at Lot No.1476 in Demarcation District 109, Hong Kong (“the Land”), which is situated in Kam Tin Shing Mun San Tsuen (“the Village”).

PROCEDURAL BACKGROUND

3.On 26 August 2019, the plaintiff issued the Writ of Summons herein with a Statement of Claim endorsed. 

4.As the deceased had passed away in as early as 1963, and no application for a grant of representation had ever been made by anyone in relation to the estate of the deceased since then, the plaintiff applied and was granted an order on 9 September 2020 that the Official Solicitor be appointed to represent the estate of the deceased herein for the limited purpose of accepting service of the said Writ of Summons.

5.No Notice of intention to defend had been given by the estate of the deceased.

6.The court subsequently further ordered on 17 November 2020 that this action may be proceeded with in the absence of any person representing the estate of the deceased.

7.On 22 January 2021, the plaintiff took out the Summons.  By reason of the special feature of this action as set out above, such a Summons is not required to be served on anyone.

THE PLAINTIFF’S CASE

8.According to the Amended Statement of Claim filed on 11 January 2021, the deceased was the cousin of the plaintiff’s late father.

9.In around 1956, the deceased and a Madam Ng Mui Fong moved into a 2-storey house (“the House”) which was built on the Land.

10.In about early 1960, the deceased and Madam Ng moved out of the House and left the Village. 

11.After the deceased had passed away in around May 1963 at the age of 34, Madam Ng had rented the House to various tenants.  It was her usual practice to go back to the Village and collect the rental from her tenants once a year.

12.However, in around 1994 or 1995, Madam Ng handed over all the keys to the House to the plaintiff’s father, without mentioning the reason why she did that, nor did she tell the plaintiff’s father whether she was leaving Hong Kong or not.

13.Madam Ng had never gone back to the Village since then.

14.Since 1994 or 1995, the plaintiff’s father and the plaintiff had been in exclusive possession of the Land including the House.  The plaintiff’s father had renovated the House, and changed the lock of the entrance door thereof.  Only the plaintiff’s father and the plaintiff had the keys to the new lock.

15.The plaintiff’s father made use of the House to store goods and tools of trade for his bicycle shops since then.  After he passed away in April 2005, the plaintiff used the House as storage for his own bicycle business until 2014, when the Ground Floor of the House was used by the plaintiff’s wife for her hair salon business. 

16.Since August 2016, the plaintiff had rented out the 1^st Floor of the House.

17.It was pleaded that since about 1994 or 1995, the plaintiff’s father and the plaintiff had uninterrupted and exclusive possession of the Land (including the House), without paying any rent to anyone, and that they had openly exercised acts of ownership over both the Land and the House.

PRINCIPLES APPLICABLE TO A CLAIM FOR DECLARATORY RELIEF IN DEFAULT JUDGMENT

18.It is trite that the Court’s power to grant judgment under Order 19 rule 7 is discretionary, and that the Court has to consider the plaintiff’s case according to the pleadings.  While the plaintiff must show a case for the order which he seeks to obtain, it is not necessary for him to prove his case by evidence.

19.As aforesaid, the plaintiff herein is claiming for declarations. The legal principles in relation to applying for declaratory relief in default of Defence have been summarised in Hong Kong Civil Procedure 2021, Vol 1, at paragraph 19/7/20 (at page 545). Insofar as they are relevant to the application before this court, they are as follows:

(1)  “It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently (Wallersteiner v. Moir (No. 1) [1974] 1 W.L.R. 991; Top One International (China) Property Group Co Ltd v. Top One Property Grp Ltd [2011] 1 H.K.L.R.D. 606, [83] & [85], per Fok J (as he then was))”; 

(2)  “However, this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied (Lam Shing Shou v. Lam Hon Man [2002] 1 H.K.L.R.D. D3; Lai Wai Kuen v. Wong Shau Kwong, (unrep., HCA 3424/2003, [2004] H.K.E.C. 1373); Law Yuk Fong v Man Chung Wai (unrep., HCA 2195/2015, [2017] H.K.E.C 57)”; 

(3)  “Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought; Chau Yan Chi Catherine v. The Incorporated Owners of Fung Wah Factorial Building (unrep., DCCJ 1459/2014, [2014] H.K.E.C. 1211), [14]; Chan Wing Go v. The Incorporated Owners of Wing Hong Factory Building (unrep., DCCJ 1736/2014, [2014] H.K.E.C. 1649, [20]…”;

(4)  “Where declaratory relief is sought, the court expects maximum assistance to be provided in order for the relief to be granted.  However straightforward this kind of applications may seem, the court should not be expected to deal with the matter on a do-it-yourself basis and rubber-stamp the uncontested application without further ado; Ho Kwai Chun v. Lai Yu (unrep., DCCJ 916/2013, [2014] H.K.E.C. 1106), [25]; Shue Huei Yue v. Tan Chung Meng (unrep., DCCJ 2294/2013, [2014] H.K.E.C. 1558), [24]–[25])”;

(5)  “The declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them (Lee Kwok Leung v. Li Foa Shang (unrep., DCCJ 2165/2014, [2015] H.K.E.C. 569), [16])” 

LEGAL PRINCIPLES ON ADVERSE POSSESSION

20.The relevant provisions under the Limitation Ordinance (Cap.347) are sections 7(2), 8(1), 13(1) and 17.  These sections provide that:

“7(2)   No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him. ……

8(1)   Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

13(1)   No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

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.”

21.The legal principles applicable to adverse possession are trite. To establish possessory title based on adverse possession, the squatter must show that he has had both factual possession of the land and the requisite intention to possess (animus possidendi) for the entirety of the limitation period.

22.In order to qualify for a claim in adverse possession, the relevant possession must be adverse in the sense that the squatter has dispossessed the paper owner and has entered into possession without the consent of the paper owner and continued in possession. In Powell v McFarlane & Anor, Slade J had the following to say:[1]

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …Everything must depend on the particular circumstances, but broadly, I think 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.”

23.As to the requisite intention to possess, it has been held by Li CJ in Wong Tak Yue v Kung Kwok Wai & Another[2] that:

“The requisite intention to possess has been referred in various authorities under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane & Anor (1979) 38 P & CR 452 at 471‑472, the intention to possess requisite for adverse possession:

…involves the 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 process of the law will allow.”

DISCUSSION

24.I am satisfied that if the plaintiff is able to prove the allegations made by his Amended Statement of Claim, he would have a valid claim of adverse possession against the estate of the deceased:

(1)  Madam Ng was only occupying the Land as the deceased’s licencee, and such a licence would be taken as having been revoked upon her moving out of the House in around early 1960, or alternatively, upon the passing of the deceased in May 1963.

(2)  The Land (including the House) had never been vested in Madam Ng.  While she had treated the Land as her own since the demise of the deceased, she should be taken as having abandoned the Land when she handed the keys to the House to the plaintiff’s father in around 1994 or 1995.

(3)  The plaintiff’s father and the plaintiff had since then treated the Land (and the House thereon) as their own: they had exclusively possessed the Land and had demonstrated the intention to exclude the world at large.

(4)  After the plaintiff’s father had passed away in April 2005, the plaintiff had continued to adversely possess the Land.

25.I accept that, in order to achieve full justice, this court should grant declarations as requested. 

ORDER

26.I therefore make the following orders:  

(1)  A declaration that the title and proprietary interest in the Land of the estate of the deceased has been extinguished by virtue of section 17 of the Limitation Ordinance.

(2)  A declaration that the plaintiff has acquired indefeasible possessory title to the Land.

COSTS

27.As the plaintiff does not ask for costs, I make no order as to the costs of this action, including the costs of this application.

Mr Anthony Ko, instructed by T. K. Tsui & Co., for the plaintiff