Ng Sui May (also known as Tu Mai and Sui May) v. Phan Hy Linh

DCMP 2780/2020

[2021] HKDC 809

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2780 OF 2020

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Before: His Honour Judge KC Chan in Court

Date of Hearing: 30 June 2021

Date of Judgment: 7 July 2021

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JUDGMENT

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1.This is a claim, commenced by Originating Summons issued on 28 August 2020 (“the OS”), for a possessory title arising out of the adverse possession of the property known as 3^rd Floor, No 8 Kwai Heung Street, Sai Ying Pun, Hong Kong (“the Property”).

2.At this hearing of the OS, the defendant, who has been the registered owner of the Property since 1969, did not appear to contest.  On 18 November 2020, the plaintiff duly effected the service of the OS to the defendant by way of substituted service pursuant to an order dated 19 October 2020.  No Acknowledgment for Service and Intention to Defend was filed.  On 30 April 2021, the plaintiff duly effected the service of the Notice of Appointment to Hear Originating Summons herein dated 21 January 2021 again by way of substituted service pursuant to another order dated 20 April 2021.  I was satisfied that the defendant had due notice of today’s hearing and that I should proceed in his absence to hear this matter substantively pursuant to O 28 r 1 and O 32 r 5 of the Rules of the District Court.

The facts

3.This is a straightforward case.

4.The plaintiff filed an affirmation in support on 28 August 2020.  In it, she set out in detail all the relevant factual matters, which are supported by contemporaneous records covering the requisite period. At the hearing, she also gave oral evidence further clarifying why there had been some reductions in rent in certain periods and pinpointing the pages of bank statements showing the deposits of these rents.

5.I accept the plaintiff’s evidence, which was uncontested and largely supported by contemporaneous documents, and find the following proved.

6.The plaintiff was an overseas Chinese born in Vietnam in 1947.  She came to and was married in Hong Kong in September 1972. She became a resident of Hong Kong in January 1973.

7.Before the plaintiff came to Hong Kong, her father Tu Nai Sum (“Tu”) told her that the defendant, who was his friend, agreed to let him have the defendant’s property, which was the Property, in exchange for Tu cancelling the debt owed by the defendant to him and the defendant gave Tu the original Assignment of the Property dated 17 July 1969 whereby the Property was assigned from the previous owner to the defendant. 

8.It was not known why the defendant did not proceed to formally assign the Property to Tu.

9.Before the plaintiff came to Hong Kong, Tu gave the said original Assignment to the plaintiff to collect rent from the Property.

10.In about mid November 1972, the plaintiff visited the Property and managed to convince the then sitting tenant one 歐惠芳 that the plaintiff was the person entitled to collect rent.  Since 15 December 1972, the said 歐惠芳 began to pay the rent of the Property to the plaintiff.  Then after for about 15 years until 15 September 1987, the plaintiff had been renting the Property to the said 歐惠芳 by successive oral tenancies and had been collecting the monthly rent for her personal use as if she were the owner of the Property.

11.Since September 1987, the plaintiff had retained the Property for personal use for a short while.  Around that time, she registered an electricity account in her name with the Hong Kong Electric Company Limited in respect of the Property.

12.Since late 1987 until 1998, she had rented the Property out to various tenants by oral tenancies and had been receiving the rent for her personal use.

13.In around 1998, the plaintiff completely renovated the Property.  She paid a total of HK$172,830 for the renovation.

14.In November 1999, by a written tenancy dated 26 October 1999, the plaintiff rented the Property to one 曹慧嬋 for a term of 2 years.  The tenancy however was terminated early.

15.By a tenancy agreement dated 9 May 2000, the plaintiff rented the Property to one 沃蓓珍 for a term of 2 years.  Then, by another 7 written tenancies, the plaintiff continued to rent the Property to the said 沃蓓珍 up to May 2017.  Then after, the Property was rented to one 沃蓓茵 by oral tenancies until 15 August 2020 when they entered into a written tenancy for a term of 2 years.

16.Again, the plaintiff has been collecting rent from the above-mentioned tenants for her own use as if she were the owner of the Property.

17.Since around 1974, the plaintiff had caused her name to be registered as the person responsible to pay the rates and government rent of the Property, and she has paid the same since then to date.

18.Since 1975 to date, the plaintiff has been paying property tax on the Property.

19.In the aforementioned period from November 1972 to date, the plaintiff has taken up the responsibility, as if she were the owner of the Property, to pay for the costs and expenses in complying with a number of building orders issued against the Property or the building.

20.The above are supported or evidenced by the following documentary evidence:-

(a)  A written note dated 18 November 1987 signed by the said 歐惠芳 confirming therein that from 15 December 1972 to 15 September 1987, 歐惠芳 had duly paid all the monthly rent of the Property to the plaintiff and that she had returned the key to the Property and that the parties had no claim against each other[1].

(b)  A deposit receipt issued by the Hong Kong Electric Company Limited in late 1987 to the plaintiff[2].

(c)  Two quotations regarding the renovation of the Property in 1998[3].

(d)  Copies of all the written tenancies mentioned above covering the period between 1999 to date[4].

(e)  Bank statements of the plaintiff’s Hang Seng Bank account since September 2010 showing the deposit of the monthly rent into her account[5].

(f)  Demands for rates and government rents issued from April 1975 to late 2020[6].

(g)  Property tax assessment and demand notices of the Property issued from August 1975 to January 2020[7].

(h)  Breakdown of costs, the costs apportionment chart and related documents concerning the compliance and discharge of Building Orders nos DBZ/U24-08/0001/07 and DRZ/U24-08/0001/07.

Discussion

21.It is trite that to establish a possessory title by adverse possession, the squatter must establish by clear and affirmative evidence (a) factual possession in the form of a sufficient degree of exclusive physical control of the subject land, (b) the necessary animus possidendi (an intention to possess the subject land to the exclusion of all other persons including the paper owner), and (c) he has such factual possession and animus possidendi continuously for the whole of the requisite time period (in this case, 20 years)(Powell v McFarlane[8], JA Pye (Oxford) Ltd v Graham[9] and Wong Tak Yue v Kung Kwok Wai[10]).

22.Moreover, it is settled law that when a squatter grants a tenancy and receives rent, he is acting inconsistent with the title of the paper owner, and that puts the squatter in adverse possession of the subject land through his tenant.  The squatter could in this way acquire a possessory title to the land through his tenant’s occupation of the land (Cheung Yat Fuk v Tang Tak Hong & Others[11]).

23.Here, as I find above, the plaintiff has since mid December 1972 to date, for a period of about 48 years, been continuously granting oral and/or written tenancies of the Property to tenants and all along has been receiving the rent for her own use as if she were the owner of the Property.

24.Furthermore, since then the plaintiff has also been acting in the other respects as if she were the owner of the Property, namely in paying the utilities, paying government rents and rates, paying property taxes on the Property, paying for the compliance of Building Orders, and expending substantial sums in renovating the Property.

25.In the premises, I am satisfied that she has established the requisite factual possession and animus possidendi, and therefore the adverse possession, of the Property since mid December 1972 for the requisite period of 20 years.  I am also satisfied that in the circumstances a declaratory relief ought to be given as to do so would give the fullest justice to the plaintiff to which she is entitled.

Disposal

26.I will therefore make the following declarations:-

(1)  A declaration that the plaintiff has since mid December 1972 been in adverse possession of All that 1 equal undivided 12^th part or share of and in Inland Lot No 4434 and Inland Lot No 4435 and of and in the building thereon known as Wing Kwai House situated at No 6-8 Kwai Heung Street, Sai Ying Pun, Hong Kong Together with the right to the exclusive use possession occupation and enjoyment of All That 3^rd Floor, No 8 Kwai Heung Street, Hong Kong (“the Property”) for a continuous period exceeding 20 years prior to the commencement of this action and the plaintiff has thereby acquired an indefeasible possessory title and/or right thereto; and

(2)  A declaration that the defendant’s title to the Property has since 1993 been extinguished by virtue of section 17 of the Limitation Ordinance Cap 347.

27.As requested by the plaintiff, I make no order as to the costs of these proceedings.

28.I thank Mr Tsui for his assistance.

Mr Wilfred Tsui, instructed by Yip & Partners, for the plaintiff

The defendant was not represented and did not appear