Chung Sai Choy v. Tong Tam Shang and Another

DCCJ 620/2014

[2023] HKDC 780

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 620 OF 2014

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J U D G M E N T

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INTRODUCTION

1.This is the trial of the plaintiff’s claim for adverse possession in relation to Lot No. 486 in Demarcation District No. 37, North, New Territories, Hong Kong (“the Subject Lot”), against the 1^st defendant who is the paper owner of the Subject Lot according to the land search.

2.Substituted service was effected on the 1^st defendant twice, first by the order of Master Michelle Soong on 20 September 2017 and secondly, subsequent to the joining of the 2^nd defendant, by the order of Master Catherine Cheng on 8 April 2019. The 1^st defendant has never appeared and has no involvement in the present proceedings.

3.In light of the substituted service having been effected on the 1^st defendant, service is deemed good, and thus this trial proceeds in the absence of the 1^st defendant.

4.Regarding the 2^nd defendant, pursuant to the order made by Master Jocelyn Leung on 15 March 2021, the plaintiff no longer maintains a claim against the 2^nd defendant. Similarly, the 2^nd defendant no longer has a counterclaim against the plaintiff.

BACKGROUND

5.This case has a long and convoluted history which is now summarised by the plaintiff’s counsel. I take the liberty to reproduce the table of chronology herein.

Date	Events	Page ref.
19.02.2014	P commenced proceedings against D1.	[1-9]
17.12.2014	Messrs. Jim & Co. filed notice to act for D1 but claimed that D1 has passed away.	[31-35]
01.06.2015	Per Order before DDJ Joseph Vaughan, it was ordered that the handling solicitor of D1 do serve an affirmation to verify the belief of the death of D1.	[51-53]
24.08.2015	Messrs. Jim & Co. took out Summons for leave to appoint D2 as the personal representative of the estate of D1.	[33-35]
23.05.2016	Per the Order by Master M. Lam, the aforesaid Summons were dismissed.	[54-55]
20.06.2016	D2 commenced a set of separate proceedings (under DCCJ2935/2016) against “the personal representative of the estate of Tong Tam Shang” (i.e. D1) and claimed adverse possession against D1 regarding the subject land. She was then represented by Messrs. Jim & Co.	[140-146]
09.11.2016	D2 acted in person in place of Messrs. Jim & Co. in the present proceedings.	[36-38]
20.09.2017	Per the Order by Master Michelle Soong, substituted service against D1 was made in these proceedings.	[59-61]
08.04.2019	Per the Order by Master Catherine Cheng, D2 was formally added to these proceedings as D2 and 2nd substituted service for the Re-Re-Amended Writ of Summons against D1 was ordered.	[65-67] (Order); [40-49] (Affirmation for 2nd substituted service)
11.09.2019	Per the Order by HHJ Andrew Li, leave was granted for D2 to file her Defence and Counterclaim for these proceedings.	[71-73]
07.01.2020	Per the Order by Registrar Simon Lui, leave was granted to P to adduce expert evidence on the subject land.	[74-77]
04.12.2020	Per the Order by Master Rita So, leave was granted for the case to be set down. Trial was originally fixed to be held between 24.11.2021 to 26.11.2021 (3 days). A Pre-trial Review hearing was fixed on 23.09.2021.	[88-91]
15.03.2021	Per the Order by Master Jocelyn Leung, leave was granted for (i) P to withdraw claim against D2 and (ii) D2 to withdraw counterclaim against P.	[92-94]
23.09.2021	At the original PTR hearing, HHJ H. Au-Yeung directed P to take out application to file supplemental witness statement and supplemental expert report. The original trial dates in November 2021 were also vacated.	[95-97]
24.11.2021	Per the Order by HHJ H. Au-Yeung, leave was granted for P to (i) file supplemental witness statement, (ii) file supplemental expert report and (iii) set down the case for trial.	[98-100]
09.12.2021	Per the Order by HHJ H. Au-Yeung, leave was granted to P to give evidence by VCF facilities at trial.	[101-103]
24.02.2023	Per the Order by DDJ S. P. Yip, leave for P to give evidence by way of VCF at trial be withdrawn and P shall give evidence in person.	[104-106]

LEGAL PRINCIPLES

6.The law regarding adverse possession is well established. The squatter has to show both factual possession and the requisite intention to possess to the exclusion of all other persons, including the owner (Incorporated Owners of San Po Kong Mansion v Shine Empire Limited [2007] 10 HKCFAR 588 at paragraph 7).

DISCUSSION

7.Regarding the act of possession of the Subject Lot, plaintiff’s counsel has prepared a chronology of events of the period from 1920 to present. I also took liberty to reproduce the same herein.

Date	Action
21.05.1920	P’s father 鍾長福 inherited Lot No.455 of D.D. 37 and took possession thereof. Subsequently, 2 houses (i.e. House 1A and 1B of Man Uk Pin, Sha Tau Kok) were erected on Lot 455 and the neighbouring government land (“the GL”): as shown in the Plan at [246]; [108] §4; [119]. These 2 properties were identified as “Structure S1” in the Expert Reports: see [289] §§16. When one looks at the Plan at [246], it can readily be seen that Lot 455, the GL and the Subject Lot are connected to each other.
1920-1930s	P’s father noticed that there were 2 abandoned houses beside House 1A and House 1B. P’s father therefore also took possession of the 2 houses and used it as if it was part of his property: [289] §17.
1935	P was born and raised in the said houses: [109] §6; [160] §2.
About 1964	P demolished the 2 houses and rebuilt as a new house at the same location with 2 structures, namely a 2-storey house (i.e. S2) and a 1-storey annex (i.e. S3). Collectively, they are referred to as House 1C. A brick wall was also built to fence off the courtyard area beside House 1C. Accordingly, House 1C together with the courtyard area effectively covered the whole area of the Subject Lot. For identification purposes, House 1C is coloured in Green and Pink, the courtyard area is coloured in Yellow, and the brick wall is marked as a Purple line in the Plan at [9]. Since then, the Subject Lot was completely fenced off and was used exclusively by P’s father and his family.
	Subsequently, the 4 houses across Lot 455, the GL and the Subject Lot were all connected together with internal doors built at the connecting wall therein: [109-11] §9; [163-164] §§12-17. The address of the 4 houses was collectively No.1 of Man Uk Pin, Sha Tau Kok: see photo at [206-207].
1972	P’s family moved to the neighbouring land of No. 2-4 of Man Uk Pin, Sha Tau Kok but they continue to occupy the 4 houses (including the Subject Lot) and used them as a storage room: [161-162] §7.
1976	P’s father passed away but P’s family (led by P’s mother) continued to live thereat.
1992	P’s mother passed away and P took over possession of the Subject Lot.
2009	The P’s son applied for a permit to build a house on the GL as an indigenous inhabitant of the new Territories: [110] §12.
2013	Under the suggestion of the staff of the Lands Department, House 1C was demolished: [111] §§13-14. After House 1C was demolished, the Subject Lot and the courtyard area continued to be fenced off by P.
May 2014	The commencement of the present proceedings.

8.Sufficed to say, at first the plaintiff’s parents and subsequently the plaintiff himself, have been in continuous and undisturbed occupation of the Subject Lot since at least 1964 when House 1C was built, together with the occupation of the adjacent land used as a courtyard enclosed by a brick wall built at the same time.

9.House 1C and the courtyard area effectively covered the whole area of the subject lot. The Subject Lot, completely enclosed by House 1C and the short brick wall, was occupied by the plaintiff and his family exclusively since then.

10.Further, the expert report and the supplemental expert report compiled by the expert witness, Mr Tang Sze-kin Eric, a land surveyor, are adduced into evidence without calling Mr Tang.

11.Mr Tang gave his expert opinion in his two reports as follows:

(1)  Structure S1 which consisted of House 1A and 1B was built on Lot 455 and the government land. Structure S1 was found throughout the study period of 1945 to 2014. This was also consistent with the plan prepared by another surveyor, Mr George Leung in 2010 which stated that S1 was built for more than 80 years.

(2)  A house was demolished in 1963 and House 1C consisting of S2 and S3 was then erected on the Subject Lot and the government land between 1964 to 2012. This was also largely consistent with the plan prepared by another surveyor in 2010 who stated that S2 and S3 were there for approximately 30 years.

(3)  The remaining portion of the Subject Lot, ie, the courtyard area identified in yellow, was covered by vegetation which was occasionally cleared during 1994 to 2013.

12.Based on the expert evidence, it is obvious to conclude that House 1C was built on the Subject Lot at least from 1964 onwards. Even after the plaintiff moved to No. 224 of Man Uk Pin about 10 years later, the plaintiff still regularly cleaned vegetation at the courtyard area at the Subject Lot.

13.The plaintiff is also relying on the following evidence to show his continuous and undisturbed occupation of the Subject Lot and the four houses:

(1)  The plaintiff’s father was the owner of Lot 455, namely, House 1A. His title was then passed to the plaintiff’s elder brother in 1963.

(2)  Houses 1A, 1B, and 1C are a complex consisting of four houses that are connected internally. There are internal doors within the partition walls of the respective houses. He demonstrates that by photos at 198215218-220 to 221 and 223 showing the internal door and the passageway.

(3)  Electric cables were also installed and extended along the internal passageway between the four houses and photos at 228 to 230 showed the same.

(4)  When the plaintiff’s son got married in 1981, the address used by him was “No. 124 of Man Uk Pin Tsuen, Sha Tau Kok”.

14.According to the plaintiff, since his occupying the Subject Lot, he has never seen or heard of the 1^st defendant. In fact, there is no evidence that the 1^st defendant has made any attempt to exert interest over the Subject Lot or defend his case.

15.I am satisfied that the above evidence supports the plaintiff’s claim of continuous and undisturbed occupation since 1964. Besides, the fact that the plaintiff has erected House 1C and the brick wall at the courtyard area further poses the plaintiff’s intention of excluding the world at large over the Subject Lot.

Conclusion

16.In view of the above, I find that the plaintiff has successfully established both elements of adverse possession of the Subject Lot, namely:

(1)  possession of the Subject Lot for over 20 years since 1964; and

(2)  demonstration of his requisite intention to possess the Subject Lot to the exclusion of all persons, including the paper owner, ie the 1^st defendant.

17.As a result, the 1^st defendant has lost his right to bring any action to recover the Subject Lot and his title to the Subject Lot had been extinguished. Therefore, judgment is entered for the plaintiff and I make the following order:

(1)  A declaration that the rights of the 1^st defendant to recover the Subject Lot has become statute-barred under section 7(2) of the Limitation Ordinance, Cap 347 of the Laws of Hong Kong and that his title to the said lot has been extinguished by virtue of section 17 of the said ordinance;

(2)  a declaration that the plaintiff has acquired a possessory title to the Subject Lot.

Costs

18.As the 1^st defendant has never appeared, attended or contested in these proceedings, the plaintiff agrees not to seek costs against the 1^st defendant. Therefore, I make no order as to the costs of the action between the plaintiff and the 1^st defendant.

Mr Jonathan Tsang, instructed by Leung Kin & Co, for the plaintiff

The 1^st defendant was not represented and did not appear