Heung Yam Chun v. The Personal Representative of the Estate of Man Tso on, Deceased

DCCJ 1397/2020

[2023] HKDC 399

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1397 OF 2020

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JUDGMENT

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1.Before me is the plaintiff’s application for default judgment seeking various declarations giving him a possessory title to the land known as Lot No 456 in Demarcation District No 98 Yuen Long (“Lot 456”) which he claims to have obtained by adverse possession.

2.Pursuant to a government lease granted in 1898, Man Tso On (“Man”) since then became, and still is, the registered owner of Lot 456.

3.The Writ herein was issued by the plaintiff on 8 May 2020 endorsed with a Statement of Claim. The plaintiff was unable to locate Man to effect service. Man in all probability would have been deceased – assuming he was 18 years old in 1898, he would have been 140 years old in 2020. The plaintiff also could not locate Man’s successor(s) or his personal representative.

4.By an Order of the Master made on 12 May 2021, the Official Solicitor was appointed to represent the estate of Man for the limited purpose of accepting service of the Amended Writ of Summons.

5.Pursuant to this order, the Official Solicitor was duly served with the Amended Writ herein.

6.By an Order of another Master made on 14 July 2021, the plaintiff was granted liberty to proceed with this action against the defendant in the absence of any person representing the estate of Man and it was further ordered that any order or judgment given herein shall bind the estate of Man in the same manner as if a duly appointed legal personal representative of Man had been a party herein.

7.By an ex-parte summons issued on 17 October 2022, the plaintiff now seeks default judgment upon default of filing an Acknowledgment of Service with a Notice of Intention to Defend and upon the default to file a Defence.

8.In the circumstances, I am satisfied that there were such defaults entitling the plaintiff to apply for default judgment pursuant to O19 r7 and that I should proceed with the hearing in the absence of the defendant.

9.It is trite that upon such an application for default judgment the court shall give judgment as the plaintiff appears entitled to on his statement of claim without admitting any evidence; though the court retains its discretionary power whether to give judgment or, say, to extend time when it is just to do so.

10.It is also trite that to establish a possessory title by adverse possession, the squatter must establish factual possession in the form of a sufficient degree of exclusive physical control of the subject land, the necessary animus possidendi (an intention to possess the subject land to the exclusion of all other persons including the paper owner), and that he has such factual possession and animus possidendi continuously for the whole of the requisite time period.

11.I turn now to consider what was pleaded in the Statement of Claim. By his Re-Re-Re-Amended Statement of Clam, which consists of 14 pages and the contents of which the plaintiff has signed his Statement of Truth to verify, the plaintiff pleaded his case in considerable detail, which for present purpose, I would summarize as follows:-

(a)  Since about 1960s, the plaintiff’s predecessor, one Liu Yau Hung (“Liu”) owned and operated a chicken farm (“the Old Farm”) on Lot 456, Lot 457 also in Demarcation District No 98 (“Lot 457”) and a piece of government land adjacent to Lot 456. Liu had since early 1980s and continuously leased Lot 457 from its respective registered owners. Since 2001, Liu was granted by the government a short-term tenancy regarding the said piece of government land;

(b)  Since 1970s, Liu had been building various structures on the Old Farm including 12 chicken coops (7 of which were on Lot 456), a storage, a wastage collection tank and a sceptic tank.

(c)  By about 1984, Liu had completely enclosed the Old Farm with fences and a locked gate.

(d)  Liu all along continuously possessed and controlled Lot 456 exclusively as part of the Old Farm as aforesaid and as if he were the owner thereof and without any interference from anyone.

(e)  Liu had been applying for and had successively obtained a Livestock Keeping Licence in respect of the Old Farm under Public health (Animals and Birds) (Licensing of Livestock Keeping) Regulation Cap 139L.

(f)  By an agreement in Chinese made between the plaintiff and Liu dated 20 October 2008, the plaintiff acquired from Liu the Old Farm at the price of HK$3,480,898. The plaintiff then began to own and operate the Old Farm, and particularly continued to exclusively possess Lot 456 as if he were the owner.

(g)  From November 2011 to February 2014, the plaintiff expanded the Old Farm by (i) first renting and then acquiring as a co-owner the Remaining Portion of Section B of Lot 458 in Demarcation District 98 (“Lot 458BRP”), (ii) acquiring as a co-owner Lot 531, Lot 532, Lot 533 and Lot 534 in Demarcation District 98 and (iii) obtaining another short-term tenancy from the government in respect of another strip of government land that situated between Lot 458BRP and the said Lot 533 and Lot 534 (“the Expanded Farm”).

(h)  Since November 2011 until now, the plaintiff has been in continuous exclusive possession of Lot 456 as part of the Expanded Farm.

(i)  Along the said expansion, the plaintiff rebuilt the original iron mesh fences with corrugated iron sheets and continuously enclosed the said newly acquired pieces of land with the same, except along the slopes on the southeast and south sides of the Expanded Farm because the slopes formed a natural barrier. Another gate was also built.

(j)  The plaintiff also kept maintaining the original, and built new, chicken coops. The plaintiff also maintained various facilities originally installed on the Old Farm and also installed new ones.

(k)  The plaintiff continuously applied for and obtained the Livestock Keeping Licence in respect of the Old Farm and then the Expanded Farm. The licence currently valid at the time of the issuance of the Writ herein entitled the plaintiff to raise and keep 46,000 chickens in the Expanded Farm.

(l)  Together with Liu’s adverse possession of Lot 456, the plaintiff has been in continuous adverse possession of Lot 456 for no less than the requisite period (be it 20 or 12 years) prior to the commencement of this action.

12.I am satisfied from the averments pleaded by the plaintiff, as above summarized, that the plaintiff has been in adverse possession of Lot 456 with a sufficient degree of exclusive physical possession and control and with the requisite animus possidendi for the requisite period. I am also satisfied that declaratory relief is appropriate to be granted.

13.In the premises, I give default judgment to the plaintiff with no order as to the costs of this action, and made the 3 declarations in terms of paragraphs (1) to (3) as prayed for in the pleadings but slightly revised to the effect that Man’s title, and his successor’s title (if any), in Lot 456 was extinguished by virtue of section 17 of the Limitation Ordinance and that the plaintiff has acquired an indefeasible possessory title thereto.

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