Sin Oi Foon v. The Personal Representatives of Leung Ho, Deceased

DCMP 1279/2020

[2023] HKDC 443

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1279 OF 2020

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BETWEEN

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DECISION

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Introduction

1.This is the hearing of the Originating Summons issued on 11 May 2020 in which the Plaintiff claims for declaratory relief in relation to her adverse possession of the premises at Flat H on 6 Floor, Thompson Building, Nos 93-103 Thomson Road, Hong Kong (the “Property”).

Plaintiff’s Case

2.It is the Plaintiff’s case as set out in her affirmation that at the instigation of her son, she and her late husband moved into the Property without anybody’s permission in 2003. She then changed the locks of the doors to the Property and started to live there with her late husband since then.

3.In July 2004, the Plaintiff’s late husband passed away leaving her in sole occupation and possession of the Property since then. Throughout all these years, she had been the only person who had access to the Property and no one had ever entered the Property without her permission.

4.She therefore claims that she had been in adverse possession of the Property for a continuous period of more than 12 years immediately prior to the commencement of the present proceedings, and by virtue of the provisions of the Limitation Ordinance, Cap 347, any rights and interests of the registered owner or of his successor-in-title or any person deriving title to the Property from him or his successor-in-title in respect of the Property had been extinguished, and a declaration that she had acquired possessory title to the Property.

5.According to the record of the Land Registry, Leung Ho, the deceased (“Deceased”), was registered as the registered owner of the Property on 19 December 1969. He passed away on 26 November 1982 as evidenced by the death certificate. There is no Grant of Probate or Letter of Administration relating to the estate of the Deceased.

Procedural History

6.On 14 February 2022, Master Maurice Lam, having satisfied that there had been no proper person to represent the estate of the Deceased, appointed the Official Solicitor to represent the Defendant to the limited extent of accepting service of the Originating Summons. The Originating Summons was duly served on the Official Solicitor on 24 February 2022. No acknowledgement of service has been filed by the Defendant.

7.On 28 April 2022, Master Maurice Lam made an order that these proceedings to be proceeded in the absence of any person representing the estate of the Deceased and that any judgment made in these proceedings shall bind the estate of the Deceased under Order 15 rule 15, Rules of the District Court, Cap 336H.

8.In view of the potential bona vacantia issue, the Plaintiff had been in contact with the Department of Justice (“DOJ”) to ascertain whether the DOJ had any intention to claim any interest in the Property. The present notice of appointment to hear the Originating Summons was also served on the DOJ. No application has been made to join in as a party in these proceedings.

9.With the order to appoint the Official Solicitors to accept service and the order to proceed the present proceedings in the absence of anyone representing the estate of the Deceased, I am satisfied that the procedural requirements relating to the representation order of the Deceased have been complied with.

10.On 13 February 2023, the Plaintiff filed the present Notice of Appointment to Hear Originating Summons. As no acknowledgement of service has been filed by the Defendant, service of the notice of appointment on the Defendant is dispensed with: Universal Corporation (Color & Chemical) Limited v the Personal Representatives of Leung Shu Ming, unrep, HCMP 733/2013, 8 January 2014.

Legal Principles : declaratory relief and summary determination

11.Normally an originating summons is an originating process and is dealt with in open court. However, given the Plaintiff asks for summary determination of her claim in the Originating Summons and the Defendant did not appear to contest her claim, it is appropriate to deal with the present application for summary determination of a matter at a hearing in chambers : see Hong Kong Civil Procedure 2023 Vol 1 § 28/3A/2.

12.As regards the Plaintiff’s claim for declaratory reliefs by summary determination, it is well-settled that the normal practice to grant a declaration without a trial is only a rule of practice and not a rule of law, and such practice will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled. Declaratory relief will be granted where the plaintiff has a genuine need for it and where full justice would not be done if such relief is denied: Wong Wing Yiu v Bell Investment Co Ltd & Anor HCMP1606/2016 (unreported, 28 February 2017) § 17.

Legal Principles : adverse possession

13.Sections 7(2) of the Limitation Ordinance provides that 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. The right of action accrues on the date of dispossession and when such dispossession is adverse.

14.Section 8(1) provides that 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.

15.Section 13(1) provides that 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.

16.Section 17 provides that, subject to the provisions in case of land held on trust under section 10, the title of that person to the land shall be extinguished at the expiration of the period prescribed by the ordinance for any person to bring an action to recover land.

17.The legal principles applicable to adverse possession are well settled which have been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 as follows :

(a) To establish possessory title based on adverse possession, the claimant must be shown to have both factual possession of the suit land and the requisite intention to possess (animus possidendi) for the whole of the period as required under the Limitation Ordinance.

(b) the requisite factual possession is a sufficient degree of exclusive physical control, which depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it. It must be a single and conclusive possession.

(c) the requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(d) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention by compelling evidence. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(e) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

Discussion

18.On the materials before the court, it is plain that the Plaintiff had been in continuous and uninterrupted possession of the Property by her exclusive occupation and use of the Property since 2003. There is no evidence of any claim to title by any successor-in-title of the Deceased or any other person since her occupation.

19.Plainly the Plaintiff’s change of the locks to the Property in 2003 resulting in her exclusive occupation and control of the Property as well as her absolute power to deny access to the Property without her permission, is strong evidence of her exclusive physical possession of the Property as well as her necessary intention to possess it. She had lived there since 2003.

20.The Plaintiff’s case is supported by various contemporaneous documents, including bank statements, letters, contract and confirmation notice. Those documents prove that the Property was used by her as her address with a bank no later than 20 July 2004, for bank statements with another bank since August 2007, for insurance documents in 2008, for employment contract in 2009, as well as for MPF documents, and correspondences with her friends in or around 2011 or 2013.

21.Besides, she had been paying government rates and rents, management fees and utility bills for the Property for a number of years as evidenced by the relevant bills and receipts. She repaired the windows of the Property in or around June 2010. She paid for the mandatory window inspection and made a contribution of HK$50,000 for the repair and building maintenance of the external wall of the building where the Property is located.

22.By reason of the unchallenged evidence that the Plaintiff had been in exclusive possession of the Property with the requisite intention to adversely possess it since around 2003, I am satisfied that a clear case of adverse possession is made out, the Defendant’s title and rights to the Property had been extinguished. The Plaintiff had established possessory title over the Property against the Deceased, the paper owner. The balance of justice weighs towards departing from the rule of practice to not grant declaratory reliefs.

23.At the hearing, Mr Ng, Counsel for the Plaintiff, sensibly confirmed that other than the declaratory relief which I will set out in paragraph 27 below, the other reliefs sought in the prayer in the Originating Summons would not be further pursued with.

24.This is a sensible concession. Suffice it to say that the common law does not provide a squatter with the right to succeed to or take over the title of the paper owner whom he has dispossessed. Nor does the Limitation Ordinance operate as a statutory conveyance of that title to him.

25.Hence, the Plaintiff only acquired a possessory title through adverse possession which does not entitle her to be registered as owner in substitution of the paper owner. This is particularly so since the Hong Kong land registration system is based upon the registration of instruments, and not that of title : Wong King Lim v The Incorporated Owners of Peony House [2013] 4 HKC 295 at §§33.2 and 37.

Conclusion

26.Having considered the submissions for the Plaintiff and all the documents before me, I find the Plaintiff had established factual possession over the Property with requisite intention to adversely possess the Property for not less than 12 years before the commencement of the present proceedings. I am persuaded that she had established possessory title over the Property against the registered owner.

Order

27.In the circumstances, I make an order that : -

(1) a declaration that the Defendant’s title, rights and interest of and in the Property has been extinguished by virtue of section 17 of the Limitation Ordinance;

(2) a declaration that the Plaintiff has been in adverse possession of the Property for a period of no less than 12 years prior to the commencement of the present proceedings, and has thereby acquired and is entitled to an indefeasible possessory title, interest and/or rights in and of the Property; and

(3) there be no order as to costs of the present proceedings and of this application

28.I thank Counsel for his assistance.

Mr Kurt Ng, instructed by Messrs. Chan, Evans, Chung & To, solicitors for the Plaintiff

The Defendant is not represented and did not appear