Wong Yu Kai v. The Personal Representative of the Estate of Tsao Yuet Ho, The Deceased

DCCJ 1564/2022

[2023] HKDC 1539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1564 OF 2022

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BETWEEN

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DECISION

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1.The plaintiff issued a writ of summons with a statement of claim on 6 May 2022 for declaratory relief in relation to the property at 1^st Floor (“唐2樓”), No.143 Hai Tan Street, Kowloon, Hong Kong (“the Property”) whereby the title of the defendant has been extinguished by virtue of sections 7(2) and 17 of the Limitation Ordinance, Cap 347 and that the plaintiff has acquired a possessory title in the Property by way of adverse possession.

2.The plaintiff and the Official Solicitor jointly applied and were granted a consent order from the court on 3 April 2023 whereby the Official Solicitor was appointed to represent the estate of the deceased in this action for the purpose of accepting service. The limited appointment of the Official Solicitor lapsed upon accepting service of the writ of summons, becoming functus officio (Hong Kong Civil Procedure 2023, Vol 1, §15/6A/8) and thereafter not filing an acknowledgement of service.

3.The plaintiff issued his summons on 19 May 2023 pursuant to the Rules of the District Court, Cap 336H under Order 19, rule 7 for declaratory relief as aforementioned in default of defence (“the Plaintiff’s Summons”). Mr Edward Lun, counsel, appeared for the plaintiff at the hearing.

4.There has been no intention to defend this action by the Official Solicitor on behalf of the defendant, no defence has been filed and on the day of the hearing there was no appearance made by any person or persons. This is particularly when enquiries have been made by the legal representatives of the plaintiff for probate of the deceased with a nil result as well as a search via the Law Society of Hong Kong for any will, codicil or other testamentary disposition but also returning with no positive results.

5.The plaintiff has satisfied this court per the Rules of the District Court under Order 65, rule 9 that service of the summons on the defendant is not and should not be required in the circumstances of the present case. Such a similar finding was also held in Chan Pui Lok Daniel v Personal Representatives of Leung Shu Ming [2017] 4 HKLRD 625 and guidance on the same is found in Hong Kong Civil Procedure 2023, Vol 1, §65/9/1.

6.Furthermore, the plaintiff has satisfied this court that in order for relief to be granted pursuant to the Rules of the District Court, under Order 19, rule 7, the defendant has failed to serve a defence and that time for filing of that defence has expired:-

“Where the plaintiff makes against a defendant … a claim of a description not mentioned in rules 2 to 5, then, if the defendant … fails … to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

7.The plaintiff has proceeded to a determination of this case since the writ of summons has been endorsed with the statement of claim which has already been served on the Official Solicitor and pursuant to the Rules of the District Court as per Order 13, rule 6(1). Furthermore, the plaintiff has proceeded with this summons as if the defendant had given notice of intention to defend after the expiry of 14 days of the service of the writ of summons and the statement of claim which were already made on the Official Solicitor on 24 June 2022. For the sake of completeness and which was already discussed earlier in this decision, there has been no intention to defend nor has there been any filing of a defence by the Official Solicitor which would have expired after 28 days thereafter as per the Rules of the District Court as per Order 18, rule 2(1).

8.The plaintiff in seeking declaratory relief relies on Hong Kong Civil Procedure 2023, Vol 1, §19/7/20 where declaratory relief should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice. More pertinently in Cheung Sai Lon v Cheung Sai Ha [2020] HKCFI 2551, unreported, 5 October 2020, where Coleman J held that:

“30. In such an application, the Court cannot receive any evidence, but must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim only, and only if the pleaded facts give rise to the relief sought.

31. However, the power to give such default judgment is discretionary. In the exercise of that discretion, it is to be recognized that it is not the normal practice of the Court to make a declaration without trial. This is not a legal or inflexible rule, but rather a rule of practice, which need not be followed when the plaintiff has a genuine need for declaratory relief and justice would not be done if such relief were denied.

32. Even on what might appear to be straightforward applications, the Court does not act as a ‘rubber-stamp’ merely because of the uncontested nature of the application. In each case, it is necessary to consider whether the declaratory relief is properly made out on the pleading, and whether it is appropriate in the overall exercise of discretion for such relief to be granted without a trial.”

9.The plaintiff’s cause of action is premised on adverse possession and it is trite that a person claiming to be in adverse possession must have both possession and the requisite intention to possess the property in question as per Wong Tak Yue v Kung Kwok Wai (1997-1998) 1 HKCFAR 55 at 68E when the Court of Final Appeal referred to Slade J in Powell v Mc Farlane (1977) 38 P & CR 452 where regarding possession at 470-471:-

“(8) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

10.Slade J in Powell v Mc Farlane (1977) 38 P & CR 452 further discussed where regarding the requisite intention to possess at 471-472:-

“What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.”

11.The plaintiff’s pleaded case must stand alone in order to satisfy the court that default judgment should be made and exercising such discretionary relief is not to be ‘rubber-stamped’, in particular for declaratory relief.

12.The plaintiff’s statement of claim, in summary and as regards his adverse possession of the Property, was that the deceased and her son Leung Sew San (“LSS”) became registered owners as joint tenants of the Property on 23 November 1987. The plaintiff sub-rented a bunk in one of the 2 bunk beds amongst the 4 rooms of the Property from a Leung Kam Biu (“LKB”) who in turn rented one of the 4 rooms in the Property from the deceased in about January 1989. In about late 1989, LSS with his wife and daughter who used to live at the Property then moved away to an unknown address.

13.In about 1991, the deceased moved into an elderly home and did not return to the Property until her death in August 1992. The deceased’s two other sons who used to live with the deceased at the Property also moved away from the Property in about 1991 whereby it is to the knowledge and understanding of the plaintiff that one of those two sons died in a traffic accident some time in the late 1990s. LSS himself passed away on 24 March 1992 and by the operation of law, the deceased became the sole legal owner of the Property.

14.Since about 1991 after the deceased moved to the elderly home, all tenants and sub-tenants of the Property had ceased to pay rent to the deceased or the tenant and nobody thereafter came to collect or demand payment. Subsequently, all occupiers in the Property, inclusive of LKB, moved out leaving the plaintiff residing alone at the Property since about 1993 until the plaintiff was joined by his wife and daughter from China in about 1997.

15.The plaintiff has been in continuous possession and exclusive management of the Property since 1993 based on the following pleaded particulars:-

(a) The plaintiff changed the lock of the door as well as the iron gate of the main entrance of the Property;

(b) All payments for utilities including electricity, water and gas had been paid solely by the plaintiff;

(c) The plaintiff had been paying the management fees of the Property since 1993;

(d) The plaintiff paid for various contributions for maintenance of the building where the Property is located (“the Building”);

(e) The plaintiff expended money on regular maintenance of the Property itself including repainting the walls, whitewashing the interior of the Property, changing the window frames and replacing the iron gate;

(f) The plaintiff repartitioned the rooms of the Property for his family;

(g) The plaintiff used the correspondence address of the Property for his bank accounts, credit cards, mandatory provident funds, etc. whilst his daughter also used the address of the Property for her school information, bank and credit card accounts. As such, it is particularly notable that the plaintiff and his daughter have made known to several third parties of their continuous physical exclusive possession and intention to possess the property.

16.The plaintiff has established on his pleaded case that he has since 1993 been in continuous and uninterrupted possession of the Property with the requisite intention to possess the same for over 12 years. As such, the plaintiff has been in continuous adverse possession of the Property for more than 12 years before the commencement of this action. By virtue of sections 7(2) and 17 of the Limitation Ordinance the defendant’s title to the Property has already been extinguished.

17.The plaintiff has acquired an indefeasible possessory title to the Property as against the defendant.

18.Reminding myself of the principles as stated at paragraphs 8 to 11 hereinabove, I am fully aware of the reasons for and against granting declaratory relief in such circumstances and that is also my duty to do justice to the plaintiff if so entitled.

19.I find that the plaintiff has a genuine need for the declaratory relief that is being sought and I exercise my discretion to make such an order. In these circumstances, there is no meaningful purpose for the plaintiff to go through a trial and unnecessarily incurring further legal costs. It was further submitted by Mr Lun that the relief sought by the plaintiff is genuine and necessary for the continued management of the Property, especially when dealing with the incorporated owners of the Building to which I agree.

20.I make an order in terms of paragraphs 1 and 2 of the Plaintiff’s Summons for declaratory relief.

21.Mr Lun indicated before me that the plaintiff does not apply for costs. I therefore order that there be no order as to costs of this action and this application.

22.I thank counsel for his assistance.

Mr Edward Lun, instructed by Darin Leung & Partners, for the plaintiff

The defendant was not represented and did not appear