Lam May Por v. The Estate of Chan Ching Woon, Deceased

DCMP 1484/2021

[2023] HKDC 1219

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1484 OF 2021

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REASONS FOR JUDGMENT

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A.  Introduction

1.In this case, P claims for adverse possession against Flat No 9B, 5^th Floor, Wah Tak Building, Nos 1A-1H & 1J, Waterloo Road, Kowloon (“the Property”).

B.  Background Facts

2.Boiled down to the essentials, P’s case is as follows.

3.P was the sole child of the family and originally lived in Mainland China.

4.P’s mother and D were good friends.

5.D’s relatives, parents and siblings all died during the wars in the 50s, and in light of her dire situation, P’s mother invited D to stay with P’s family.

6.However, soon after, a secret love affair developed between P’s father and D. P’s mother felt betrayed and could not accept such. As a result, in 1958, P’s father and D abandoned P and her mother, and moved to Hong Kong.

7.P also eventually moved to Hong Kong in 1981. Due to lack of alternatives, P lived with her father and D in a flat in Jordan.

8.P’s father eventually purchased the Property in around 1987 and put it in D’s sole name. P’s father tasked P to deal with the renting out of the Property to tenants.

9.In 1995, D transferred back a half joint tenant interest in the Property to P’s father.

10.In 1998, D’s father died, and via joint tenancy, D once again became sole owner.

11.P’s 1^st Affirmation then stated as follows:-

“(28) After the demise of My Father, I [verily] believed that the ownership of the Property would be passed to me sooner or later. As such, I decided to take possession of the Property as my own in around mid-1998…

…

(29) Upon knowing that my Father unfairly named [D] as the sole owner of the Property … I became more emotional against my Father and [D] and my determination in occupying, possessing and squatting the Property as my own had been further strengthened in around mid-1998.

(30) As such, I changed the door locks of the Property and kept the lock keys to myself and kept the Property to myself to the exclusion of the whole world at large including [D] from entering into the Property.

(31) I also continued the lease of the Property for rental income…

…

(36) Then, [D] died on 12^th March 2000 …

(37) As [D] had no other relatives or child whomsoever, I made the application for [D’s] Death Certificate and I am named … as the daughter and the Informant …”

12.P also exhibited a number of demand notes for Government Rates and Rents, some electricity bills, some management fee receipts, and some evidence that P has paid them from 2000 to 2020.

13.P’s 2^nd Supplemental Affirmation provided further information as to the fact that:-

(a)  On 5 July 2021, a probate search had been conducted by P’s solicitors. The only search hit was an application by P itself in August 2001 via another set of solicitors.

(b)  P’s current solicitors then wrote to this other set of solicitors, seeking information on the past application.

(c)  The other set had since confirmed that no letters of administration had ever been granted due to the unresolved requisitions relating to P’s entitlement to such grant.

C. Procedural History

14.The present OS was taken out in 16 April 2021.

15.On 12 July 2022, the Official Solicitor was appointed to represent the Estate for the limited purpose of accepting service of the OS. This was done on 11 August 2022.

16.On 31 October 2022, Master Bryan Lung ordered that the present proceedings be proceeded with in the absence of any person representing the estate of D under RDC O 15, r 15.

17.The matter first came up for hearing on 9 May 2023. A number of queries were raised by the learned deputy judge then hearing the matter; and the matter was adjourned sine die. In particular, queries were raised along the following lines:-

(a)  Q1: Whether there are authorities saying how a court of law should deal with allegations of adverse possession when the paper-owner died during the alleged period in question.

(b)  Q2: Whether it is necessary, or desirable, to notify the Official Administrator of these proceedings by reason of Rule 21(3) of the Non-Contentious Probate Rules (“NCPR”) or otherwise, and if not, why not.

(c)  Q3: Did the Estate devolve to the HKSAR Government as “bona vacantia” on the death of D and what are the legal consequences?

(d)  Q4: Had D been legally represented, could D have raised an argument that P was an “executor de son tort” so that she should not in law be allowed to claim a possessory title adverse to D.

18.In response to the queries, on 11 May 2023:-

(a)  P served the Official Administrator with the Hearing Bundles, and invited the Official Administrator to comment on whether or not it had any intention to claim any interest in the Property. On 19 May 2023, the Official Administrator responded that:-

“It is not a proper case for OA to step in the administration of the estate of CHAN CHING WOON, Deceased.”

(b)  P served the Department of Justice with the Hearing Bundles, and invited the DoJ to confirm whether the SJ has any intention to claim any interest in the Property. On 23 May 2023, the DoJ responded that:-

“the Secretary for Justice has no intention to claim any interest in the [Property].”

19.The matter had since been restored and comes before me today.

D. Analysis

20.It appears that there is a practice of applying for adverse possession declarations by way of OS, and for such to be dealt with, in an appropriate case, summarily under O 28, r 4: see for example Chan Michael v The Personal Representative of Tam Siu Fung, Deceased (HCMP 745/2015, 7 April 2017) at §§2-4 per Deputy High Court Judge Paul Lam SC; Sin Oi Foon v The Personal Representatives of Leung Ho, Deceased [2023] HKDC 443 at §§11-12 (DDJ M Lam).

21.The law in relation to adverse possession is relatively trite. What has to be proven are (1) factual possession; and (2) intention to possess (animus possidendi): see Tsang Foo Keung v Chu Kim Mi Jimmy [2017] HKC 527 at §22 per Harris J.

22.Based on the facts recited above and also the evidence put before me, I am satisfied that these two elements are proven given the uncontradicted nature of P’s evidence. P has been in factual possession since mid-1998 and the facts suggest that she had the requisite intention to possess.

23.As to the queries raised at §17 above, Mr Wan (acting for P) had sought to deal with them. My views are as follows.

24.For Q1, there is cited to me a number of cases whereby adverse possession took place after the paper owner had died: see for example Chan Michael (supra); Sin Oi Foon (supra); Wu Chi Kwong v The Estate of Cheung Man Yau, Deceased [2008] 3 HKLRD 503 (Recorder McCoy SC). There is no mention that the death of the paper owner affects the right to claim adverse possession. Nor is it clear why, doctrinally, adverse possession cannot take place after the death of the paper owner (as against his estate), or straddle the time across which he lives and dies. As such, I take the view that Q1 does not stand in the way of a claim in adverse possession.

25.For Q2, my view is that Rule 21(3) of the NCPR is likely irrelevant. Rule 21(3), as I see it, simply provides for the order of priority for grant of administration in case of intestacy; it does not mandate an application being made by anyone listed therein; nor does it automatically appoint the Official Administrator in lieu of persons higher in priority. In fact, while assets of intestate persons vests with the Official Administrator (s 10 of the Probate and Administration Ordinance (Cap 10)), it is not administered by him unless there is an application and an Order made by the court (s 16 of the Probate and Administration Ordinance). It therefore appears to me that Rule 21(3) does not entail that it is necessary to notify the Official Administrator in the present circumstances, and perhaps explain the Official Administrator’s response noted in §(a) above. In any event, the Official Solicitor had already accepted limited appointment as representative of the Estate, and thus the issue is academic.

26.For Q3, it appears that the premise of the query is that, if, as is P’s case, D is intestate and without next of kin, Intestates Estates Ordinance (Cap 73) s 4(9) mandates that the residuary estate will belong to the Government as bona vacantia. From this, it seems, there are cases which suggest that it is necessary to obtain the Government’s view as to whether they wish to claim the property in question or not, with the Department of Justice being often consulted for such purposes: see Sin Oi Foon (supra) at §8; Sum Yiu Ka v The Personal Representative of Wong Hau Chun, Deceased [2018] HKDC 95 at §5.

27.This practice appears to make sense. Although the Government’s interest under the Intestates Estates Ordinance s 4(9) is merely inchoate pending administration and assent (see Chung Chiu Hing v The Personal Representative of Law Sam, Deceased (HCMP 2384/2011, 9 June 2017) at §§76-78), broadly speaking, the Government may be seen as having sufficient interest in opposing the OS, especially given the possibility of an implied assent (ibid at §§70-80); although strictly speaking and doctrinally, it may be that it is more satisfactory for this point to be dealt with at the stage of the appointment of a representative for the estate (there, the Government would have undoubted locus as sole beneficiary to express its views and if necessary seek the appointment of its representative).

28.Putting aside technicalities, in the present case, the Government had made it clear they would not claim an interest in the Property (see §(a) above) – as such, this issue would not stand in the way of a claim in adverse possession.

29.In passing, I would note that one case cited to me suggests that the Government’s interest goes further, ie The Personal Representative of Lau Fung Chim v Lau Siu Kwong David (DCMP 1767/2001, 20 July 2001), where the court had this to say:-

“9. LEE’s estate became bona vacantia and it is almost common knowledge that bona vacantia passes to the government. In other words, after LEE’s death, the Property became Property of the government. In such case, assuming there was adverse possession, it would be adverse possession against the government and not adverse possession against LEE or LEE’s estate…

10. On the basis that the deceased had adverse possession against the government, section 7(1) of the Limitation Ordinance … provides that the government has 60 years to take action to recover the Property.

11. It is also arguable that possession, although exclusive, by the deceased since 1966 was not even adverse possession against the government because the deceased must have paid up all government rent payable on the Property thereby acknowledging the government as landlord.”

30.With respect, I have doubts about the above analysis. It appears to ignore the fact that upon the paper owner’s death (even if he is without next of kin and IEO s 4(9) kicks in), the Government does not immediately become the owner of the property - until and unless there is administration and the property assented to the Government, it seems unlikely to be the case that adverse possession would be viewed through the lens of one being vis-à-vis the Government. However, given this point is academic on the facts of this case and had not been argued, I express no firm views on the matter.

31.For Q4, as I understand it, executor de son tort is a legal doctrine which makes a person liable as though he were an executor, if he intermeddles in the administration of an estate: see Williams, Mortimer and Sunnucks (21^st Edition) at §5-35.

32.On the uncontradicted case of P, there is no suggestion that she was acting executor de son tort. Her case (as noted above) is that she was determined to possess the Property as owner even before D’s death. As such, unless there is evidence that contradicts P’s case, there appears to be no good reason to disbelieve her; and any objection based on P being an executor de son tort would be denuded of its factual basis.

33.In this regard, I am unable to locate evidence to such effect. It appears that the only fact that may be of tangential relevance to this issue is that P had previously made an aborted application for administration of D’s estate (see §13 above). However, I do not see this fact as a good reason to disbelieve P’s sworn evidence, as the two involves no necessary contradiction.

E. Conclusion

34.On the basis of the above, I made the following orders:-

a.  a declaration that the title, rights and interests of and in the property known as Flat No 9B, 5^th Floor, Wah Tak Building, Nos 1A-1H & 1J, Waterloo Road, Kowloon (the Property) of the Defendant or her successors in title has been, prior to the commencement of these proceedings, extinguished by virtue of Sections 7 and 17 of the Limitation Ordinance, Cap 347;

b.  a declaration that the Plaintiff, having been in adverse possession of the Property for a period not less than 12 years before the commencement of these proceedings, has acquired an indefeasible possessory title to the Property;

c.  No order as to costs.

Mr Kev L H Wan, instructed by HK&JY Solicitors, for the plaintiff

The defendant was not represented and did not appear