Tang Chai Woh and Others v. Personal Representative of the Estate of Tang Man Shau, Deceased

HCA 1946/2020

[2023] HKCFI 1757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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ACTION NO 1946 OF 2020

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Before: Deputy High Court Judge KC Chan in Chambers (Open to Public)

Date of Hearing: 3 July 2023

Date of Judgement: 3 July 2023

Date of Handing Down Reasons for Judgement: 10 July 2023

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REASONS

FOR JUDGEMENT

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1.Before me is the Plaintiffs’ application for default judgment seeking various declarations giving them a joint possessory title to the pieces of land known as Lot Nos 121 and 141 in Demarcation District No 38 located at Sha Tou Kok Road, Wo Hang, New Territories (“the Subject Lots”) which they claim to have obtained by adverse possession.

2.At the conclusion of the hearing, I granted judgment to the Plaintiffs and gave the relief in terms as prayed for in their summons save a change in paragraph 3 thereof by describing the title acquired by the Plaintiffs as “an indefeasible possessory title”.

3.These are my reasons.

4.Pursuant to a Block Crown Lease granted on 27 March 1905, one Tang Man Shau (“TMS”) became, and he still is, the registered owner of the Subject Lots.

5.The Writ of Summons herein was issued by the Plaintiffs on 18 November 2020 endorsed with a Statement of Claim.  According to the Plaintiffs’ pleaded case, TMS had long since been deceased. On 25 March 2021, the Writ herein was amended to change the address of the Defendant from that of the Subject Lots to the address of another property registered in the name of TMS.  That notwithstanding, the Plaintiffs were unable to effect service of the Amended Writ to the personal representative of TMS. 

6.By an Order of the Master made by consent on 25 August 2021, the Official Solicitor was appointed to represent the estate of TMS for the limited purpose of accepting service of the Amended Writ herein.  Pursuant to this Order, the Official Solicitor was duly served with the same.

7.By an Order of another Master made on 29 June 2022, the Plaintiffs were granted leave to proceed with this action against the Defendant in the absence of any person representing the estate of TMS and it was further ordered that service of future court documents on the Defendant be dispensed with.

8.By a summons filed on 2 June 2023, the Plaintiffs now seek default judgment upon the default of filing an Acknowledgment of Service with a Notice of Intention to Defend and upon the default to file a Defence.

9.I am satisfied that there were such defaults entitling the Plaintiffs to apply for default judgment pursuant to O19 r7 and that I should proceed with the hearing in the absence of the Defendant.

10.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.

11.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.

12.I turn now to consider what are pleaded in the Statement of Claim, which in gist, are:

a.  TMS was the registered owner of the Subject Lots since 27 March 1905.

b.  The Plaintiffs are related and are the descendants of one Tang Tsung Fuk (“TTF”).

c.  TTF and TMS were both indigenous villagers of Loi Tung at Sha Tau Kok and were from the same Tang ancestry lineage.

d.  On an unknown date no later than the Japanese occupation of Hong Kong on 25 December 1941, TMS had abandoned and discontinued possession of the Subject Lots which since had been exclusively and continuously possessed and controlled by members of the Tang clan without the consent of, or interruption by, TMS or his successor.

e.  TMS in all probability had long passed away as he would have been at least 140 years old at the date of Writ herein and there is a tombstone for TMS and his wife at the village of Loi Tung.

f.  Since no later than 1965, the 1^st Plaintiff’s father one Tang Tin had been letting out the Subject Lots to operate tile kilns.

g.  Since around 1986, the Subject Lots were cleared and were converted into a storage ground and together with neighbouring lots had been let out by Tang Tin for storage of containers and construction materials.

h.  Since 1993, the Plaintiffs have taken over the Subject Lots and have been in joint continuous and exclusive possession and control of the Subject Lots without the consent of, or interruption by, TMS or his successor.  The Plaintiffs have been renting out the Subject Lots and each has been receiving 1/3 share of the rent.

i.  Since 2003, the 1^st Plaintiff on behalf of the Plaintiffs registered his name with the Government in relation to the Subject Lots for the purpose of paying Government Rates and Rents and they have been paying the same to the Government since.

13.I am satisfied from the averments pleaded by the Plaintiffs, as above summarized, that they have been in joint adverse possession of the Subject Lots with a sufficient degree of exclusive physical possession and control and with the requisite animus possidendi for the requisite period.  I accept that there is a genuine need for the declaratory relief sought which is appropriate to be granted.

14.For these reasons, I gave default judgment to the Plaintiffs and granted the said relief with no order as to the costs of this action, as asked by the Plaintiffs.