Chan Yiu Man and Others v. Wong Helen Mee Ling, The Administratrix of the Estate of Wong for Chuen (黃火全) Alias Wong Foa Tsun (黃火全), Deceased and Another

DCCJ 1575/2019

[2021] HKDC 624

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1575 OF 2019

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Before: His Honour Judge KC Chan in Court

Date of Hearing: 21 May 2021

Date of Judgment: 26 May 2021

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JUDGMENT

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1.The 3 plaintiffs are brothers. They are now jointly claiming for a possessory title to a piece of land in Kan Tau Wai near Ta Kwu Ling in North New Territories known as Lot 756 in Demarcation District No 82 (“Lot 756”).

2.The defendants since 2 August 1961 have been the registered owners of Lot 756.  They did not appear at trial.  They had been duly served with the Writ herein endorsed with the Statement of Claim but both had not filed an Acknowledgment of Service or a Notice of an Intention to Defend.  They have not participated in these proceedings at all.  I was satisfied that they had due notice of this trial but did not attend.  I thus proceeded with the trial in their absence.

Legal principles on adverse possession

3.The general principles concerning adverse possession are well settled, and for the present purpose, need only to be succinctly stated.

4.For the adverse possessor to be successful, he must show:-

(a)  factual possession in that he has a sufficient degree of exclusive physical control of the subject land;

(b)  the necessary animus possidendi, in other words an intention to possess the land to the exclusion of all other persons including the paper owner the best he can; and clear and affirmative evidence is required to show that such intention has been made sufficiently clear to the world; and

(c)  he has such factual possession and animus possidendi continuously for the whole of the requisite time period. (In our present case, the requisite time period is 20 years).

(Powell v McFarlane[1], JA Pye (Oxford) Ltd v Graham[2] and Wong Tak Yue v Kung Kwok Wai[3])

5.Successive squatters can add their years of adverse possession together, so long as their adverse possession have been continuous and unbroken, to complete the period of adverse possession (Ng Lai Sim v Lam Yip Shing & Anor [4]).

The facts

6.The 1st plaintiff is the elder brother of the 2^nd and 3^rd plaintiffs.  He was born in 1962.  He gave evidence on behalf of the plaintiffs.  His evidence is uncontested and I accept it.  As will be seen, the material parts of his evidence particularly concerning the exclusive possession of Lot 756 by the plaintiffs’ predecessors are well supported by the expert report of Mr Chan Tak Hing of T.H. & Associates Limited dated 28 April 2021 (“the Expert Report” and ”Mr Chan”) adduced by the plaintiffs.

7.The following I find as facts.

8.The plaintiffs’ late grandmother Madam Cheung A Lai (“Madam Cheung”) purchased Lot 754 (“Lot 754”) and Lot 755 (“Lot 755”) in Demarcation District No 82 in 1940 and 1948 respectively.  The Memoranda of Sale of the respective purchases were registered in the District Office by Memorials No 109275 and No 121427.

9.Since then, Madam Cheung and her family had been farming on Lot 754 and Lot 755.  Some time after that, Madam Cheung and her family also extended their farming activities onto the adjacent Lot 756 and since had been occupying and using Lot 756 together with Lot 754 and Lot 755 as their own fields growing vegetables (“the Land”).

10.Around mid 1960s, Madam Cheung and her family caused to be erected a 6 foot tall fence enclosing the Land.  The Land were accessed through 2 doors situated respectively on the south western side and south eastern side of the fence. The doors were bolted and padlocked to restrict access by trespassers.  Around that time, Madam Cheung had also caused a well to be dug in the Land to supply the water needed for cultivation.  For ease of reference, the Lot Index Plan annexed to the witness statement of the 1^st plaintiff with the fence coloured in blue is attached to this Judgment.

11.From the survey sheets attached to the Expert Report spanning from 1970 to 2019, and Mr Chan so opined, it can be seen that the Land were completely enclosed by a fence.  Mr Chan also opined in the Expert Report that segments of fence can be observed in the aerial photographs depicting the Land taken from 1973 to 2019.  It therefore is clearly established that the fence has been so erected by 1970 and it has been enclosing the Land and restricting access thereto since 1970 to date.

12.By a Transfer as a Gift dated 8 December 1972 and registered as Memorial No 172924, Madam Cheung gifted, among others, Lot 754 and Lot 755 to her two sons Chan Yung Kai and Chan Shu Ping as tenants in common in equal shares.

13.Chan Yung Kai had since 1952 moved to the urban area to live, and since then until he passed away in around 2014, and even though he was gifted a share in Lot 754 and Lot 755 in 1972, he had not occupied or used the Land.

14.The 3 plaintiffs are the sons of Chan Shu Ping.  Their family has all along been living in Kan Tau Wai Village which is very closed to the Land.

15.Since 1972, the plaintiffs’ father Chan Shu Ping had taken over the possession of the Land from Madam Cheung and had been managing the same by renting it out to villagers in the vicinity to farm.  Madam Cheung passed away in 1980s.

16.On 10 December 1991, by a Deed of Partition with Memorial No 265772, Chan Yung Kai became the sole registered owner of Lot 755 and Chan Shu Ping became sole registered owner of Lot 754.  By a Deed Poll dated 18 August 2010, Lot 754 was divided into Section A, Section B and Remaining Portion which were very shortly after respectively assigned to the 3 plaintiffs.

17.Since the said assignments to the plaintiffs in 2010 and as Chan Shu Ping was well advanced in years, the 3 plaintiffs have been in possession of the Land and managing the same.  The fence enclosing the Land was maintained and locked.  As said, in around 2014 Chan Yung Kai passed away.

18.In the premises, I find the plaintiffs’ case of adverse possession of Lot 756 proved.  I am satisfied and find that:-

(a)  Madam Cheung, Chan Shu Ping and the plaintiffs as successive squatters together have been in exclusive and continuous physical possession and control of Lot 756 for more than 20 years since 1970;

(b)  Madam Cheung, Chan Shu Ping and the plaintiffs have all along since 1970 to date had an intention to possess Lot 756 to the exclusion of all other persons including the defendants and that such intention has been made sufficiently clear to the world.

Disposal

19.I give judgment to the plaintiffs and make the declarations sought, as follows:-

(1)  A declaration that the plaintiffs together with their predecessors have since 1970 been in adverse possession of Lot 756 in Demarcation District No 82 for a continuous period exceeding 20 years prior to the commencement of this action and the plaintiffs have thereby jointly acquired an indefeasible possessory title and/or right thereto; and

(2)  A declaration that the defendants’ title to Lot 756 in Demarcation District No 82 or any part thereof has since 1990 been extinguished by virtue of section 17 of the Limitation Ordinance Cap 347 and that the defendants have since 1990 lost their right to bring any action to recover the said Lot by virtue of section 7(2) of the same Ordinance.

20.As requested by the plaintiffs, I make no order as to the costs of this action.

21.I thank Mr Tsang for his assistance.

Mr Jonathan Tsang, instructed by Leung Kin & Co, for the 1^st to 3^rd plaintiffs

The 1^st and 2^nd defendants were not represented and did not appear