Yip Hei v. Wong Wan So

DCCJ 5836/2020

[2022] HKDC 911

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5836 OF 2020

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BETWEEN

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Before: Deputy District Judge B Mak in Chambers

Date of Hearing: 10 August 2022

Date of Decision: 29 August 2022

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DECISION

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Introduction

1.At the hearing on 10 August 2022, I granted the reliefs under prayers 1 and 2 of the statement of claim with no order as to costs of this action. Here are my reasons.

Service

2.On 30 September 2021, the writ of summons was served on the defendant pursuant to the order for substituted service of Master Maurice Lam dated 6 September 2021.

3.No acknowledgment of service was entered by the defendant thereafter.

The attempts of the plaintiff’s solicitors in finding out the whereabouts the defendant

4.At the hearing of the plaintiff’s summons for judgment on 27 January 2022 before Deputy District Judge Charles Wong, the learned judge made a few observations in respect of the possibility of the passing of the defendant.

5.After the hearing, the solicitors for the plaintiff made various attempts to search for the present whereabouts of the defendant but were unable to obtain any useful information.

6.The solicitors for the plaintiff also conducted searches at the Births and Deaths Registry and Probate Registry. For the period from 1 January 1932 to 8 November 2020, no record of death of the defendant was found. Searches of the Probate Registry on 23 July 2020, 9 December 2020 and 28 July 2022 revealed that no application for the grant of probate or Letter of Administration in the defendant’s name in Chinese and English had been made.

7.I am satisfied that all reasonable efforts have been made to find out the present whereabouts of the defendant. There is no evidence as to the passing of the defendant. The writ of summons has been duly served on the defendant pursuant to the order for substituted service of Master Maurice Lam dated 6 September 2021. The plaintiff is entitled to proceed with his application.

Legal principles on grant of declaration in default of defence

8.In an application under Order 19 rule 7, the court cannot receive any evidence in cases hereunder, but must give judgment according to the pleadings alone: see Hong Kong Civil Procedure 2022 Vol 1 at 19/7/11.

9.It is not the practice of the court to make a declaration of right in default of defence, or on admissions or by consent but where such relief is to be granted without trial or evidence, the right course for the court is not to make a declaration but to state on what footing the relief is to be granted: see Hong Kong Civil Procedure 2022 Vol 1 at 19/7/14.

10.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: see Hong Kong Civil Procedure 2022 Vol 1 at 19/7/20.

The plaintiff’s pleaded case

11.The defendant is the registered owner of Section A of Lot No 117 in Demarcation District No 107 in Mo Fan Heung Sun Tin Yuen Long (“Lot 117A”). The land the plaintiff is claiming is part of Lot 117A which is hatched yellow as shown in a lot index plan marked as Appendix A2 in the surveyors’ report attached to the statement of claim (“the subject land”).

12.On 20 July 1974, the plaintiff’s mother became the owner of Section B of Lot 117 (“Lot 117B”) and Section B of Lot 118 (“Lot 118B”) in Demarcation District 107, which were adjacent to the subject land.

13.Lot 118B was divided into 2 lots, namely, the remaining portion of Lot 118B (“Lot 118BRP”) and Sub-section 1 of Lot 118B on 22 October 1983.

14.Lot 117B and Lot 118BRP together with the buildings thereon (“the plaintiff’s land”) were gifted to the plaintiff by his mother on 24 March 1995.

15.Between 1974 and 1996, the plaintiff’s mother lived in Lot 117B and Lot 118BRP and the neighbouring lots including the subject land which were enclosed by fence.

16.The plaintiff was married in or about 1976 and moved to Wah Shing Village which was within 10 minutes’ walk from the plaintiff’s land. The plaintiff returned to the subject land frequently and carried out repair and maintenance works on the plaintiff’s land and the enclosed area including the subject land.

17.Hence, the plaintiff and his mother were in continuous occupation of the subject land to the exclusion of the whole world at large including the defendant as the paper owner of the subject land since 1974.

Legal principles on adverse possession

18.To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

19.Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(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 or, if it first accrued to some person through whom he claims, to that person …”

20.Section 8(1) of LO provides:-

“(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.”

21.Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

22.Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“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.”

23.Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“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. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … 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.”

24.Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi 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 processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

25.The Privy Council in the last appeal from Hong Kong, the case of Sze To Chun Keung v Kung Kwok Wai David [1997] HKLRD 885 at 888I-J, held that for the purpose of the LO, all that matters is that there should have been continuous adverse possession for the period of limitation.

26.Bokhary PJ in Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70 expressed the opinion that there is no difficulty in aggregating the period of possession by the squatter and the period of possession by him through his tenant. The legal position as stated by Brooking J in the Australian case of Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 was adopted that “where the adverse possession has been continuous, it is possible to tack the possession of one intruder on to that of another although there has been no assignment of possessory rights.”

Findings

27.The facts pleaded in the statement of claim are not controverted, I accept them at its face value.

28.By enclosing the lots including the subject land, the plaintiff’s mother had exerted full control of the area enclosed. Such control was effectively making known to the whole world at large that she treated herself as if she was the owner thereof and accessing the land by anyone including the paper owner must be with her permission.

29.I am satisfied that the mother of the plaintiff had not only obtained physical possession of the subject land but also had shown an intention to possess the same.

30.As the enclosed lots were occupied by the plaintiff’s mother for the period between 1974 and 1996, followed by the plaintiff thereafter, I am satisfied that the possession by the plaintiff’s mother and the plaintiff had been continuous and for a period over 20 years.

31.Accordingly, the plaintiff is entitled to:-

(a) a declaration that the defendant’s title of and in the subject land has been extinguished; and

(b) a declaration that the plaintiff has acquired a possessory title of the subject land.

Costs

32.Miss Yvonne Yip, counsel for the plaintiff, has sensibly not asked for costs of the action.

33.I therefore make no order as to costs of this action.

Ms Yip Yvonne, So, Lung & Associates, for the plaintiff

The defendant was not represented and did not appear