Lee Wah Put and Another v. Li Ip Shing

HCA 1839/2020

[2022] HKCFI 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1839 OF 2020

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Before: Hon Cheng J in Chambers

Date of Hearing: 10 February 2022

Date of Judgment: 10 February 2022

Date of Reasons for Judgment: 24 February 2022

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R E A S O N S   F O R   J U D G M E N T

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A.   INTRODUCTION

1.By summons of 6 July 2021 (“the Summons”), the Plaintiffs sought, inter alia, a declaration that they have been in adverse possession of a part of Section A of Lot No.457 in DD 183, Shatin, New Territories as identified in the plan annexed to the Plaintiffs’ Statement of Claim (“the Land”) for a period in excess of 20 years prior to the commencement of these proceedings, and have thereby acquired possessory title to the said land.

2.The Plaintiffs applied for default judgment under RHC O.13 r.6 and O.19 r.7, the Defendant having failed to give notice of intention to defend the action.

3.At the hearing, I granted the declarations sought in the draft order as amended.  I now set out my reasons for so doing.

B.   SERVICE

4.I am satisfied that the Writ was served in accordance with the order of Master Hui of 12 March 2021 for substituted service, and that the Summons was served in accordance with the order of Lok J of 3 September 2021 for substituted service.

C.   THE APPLICABLE LEGAL PRINCIPLES

C1.   Applications for default judgment

5.On an application for default judgment under O.19 r.7, the court gives such judgment as the plaintiff appears entitled on the statement of claim: O.19 r.7(1).  Accordingly, the court will not consider any evidence.

6.It is not the normal practice of the court to make a declaration without a trial.  However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied.  The court will scrutinise the application carefully and will not hastily grant the relief sought.  The declaratory relief should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them.  See Hong Kong Civil Procedure 2022, note 19/7/20.

C2.   Adverse possession

7.Pursuant to s.38A of the Limitation Ordinance (Cap. 347) (“LO”) and s.7 of the Limitation Ordinance 1965, actions for recovery of land are statute-barred after twenty years from the date on which the right of action accrued, where the right of action accrued prior to 1 July 1991.

8.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: s.13 LO.

9.At the expiration of the prescribed period for any person to bring an action to recover land, the title of that person to the land shall be extinguished: s.17 LO.  However, the effect of expiration of the period is only that it extinguishes the title of the dispossessed against the squatter; it does not convey the owner’s title to the squatter: Chan Tin Shi & Others v Li Tin Sung & Others (2006) 9 HKCFAR 29 at [13]; St Marylebone Property Co Ltd v Fairweather [1963] AC 510 at 535.

10.A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

D.   THE PRESENT CASE

11.I am satisfied that the Plaintiffs have sufficiently pleaded a case of having been in continuous and uninterrupted possession and occupation of the Land for at least twenty years prior to the commencement of this action, with the requisite intention to possess the Land to the exclusion of the whole world, including the Defendant.

12.According to the Statement of Claim, the 1^st Plaintiff moved into an abandoned house on the Land in about 1952.  The 2^nd Plaintiff married the 1^st Plaintiff in 1958 and moved into the house.  The Plaintiffs’ children have also lived in the house.  The Plaintiffs fenced off the Land from about 1962, save for an access path which was used by the occupants of the neighbouring land with the Plaintiffs’ consent.  The fence was locked from about 1975.  The Plaintiffs have carried out agricultural activities on the Land and occupied the properties and structures thereon to the exclusion of the world, and have paid various expenses as if they owned the Land (such as crown rent, utility charges, and costs of improvements and maintenance).  The Plaintiffs have never paid anyone for their occupation of their land.

13.In the circumstances, I considered that it would be an appropriate case in which to grant declaratory relief.  However, I did not consider it necessary in the present case to describe the title as “indefeasible”, given the principles outlined in paragraph 8 above.  Furthermore, whilst the statutory provisions would prevent the Defendant from claiming recovery of the land as against the Plaintiffs, it did not seem to me to be necessary to declare in general terms that the Defendant is barred from commencing any action for recovery.

Mr Terrence Tai, instructed by Sit, Fung, Kwong & Shum, for the 1^st and 2^nd Plaintiffs

The Defendant was not represented and did not appear