Ng Lai Kuen v. Wong Jung Moon, The Executor of the Estate of Wong Lin Su, Deceased

HCMP 2138/2018

[2023] HKCFI 2821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2138 OF 2018

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R E A S O N S  F O R  D E C I S I O N

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A.  INTRODUCTION

1.By the Re-Amended Originating Summons filed on 22 September 2022, the plaintiff seeks a declaration that the defendant’s right of action against the plaintiff for recovery of possession of the property known as 5^th Floor, No 206 Kowloon City Road, Kowloon, Hong Kong erected on The Remaining Portion of Subsection 1 of Section H of Kowloon Inland Lot No 1094 & The Extensions thereto (the “Property”) has been extinguished, and that the plaintiff has been in adverse possession of the Property as against the defendant from and since about the third quarter of 1982.

2.At the end of the hearing on 5 September 2023, I granted a declaration in terms of the Re-Amended Originating Summons, except that the date of “the third quarter of 1982” be replaced by “1987”.  These are the reasons for my decision.

B.  THE PLAINTIFF’S CASE

3.In summary, the plaintiff’s case as disclosed from the evidence is as follows:

(1)  From about September 1966, the Property was rented by Mr Wong Lin Su (the “Deceased”), the registered owner of the Property, to the plaintiff’s father Ng Chi Shing (吳志成) (the “plaintiff’s Father”) at a rent of about HK$250 a month.  There was no written lease regarding the Property.  At that time the plaintiff’s family, including the plaintiff herself, lived at the Property.

(2)  From September 1966 to December 1971, the plaintiff’s Father paid the rent to a Wong Lau Tong (黃柳堂) as an agent of the Deceased.  Wong Lau Tong emigrated to Canada in about January 1972.  The plaintiff’s Father then paid rent to the Deceased directly.  The plaintiff’s Father passed away in 1974.  The plaintiff’s eldest brother Ng Kwok Hung (吳國 雄) (the “plaintiff’s Eldest Brother”) continued to make payments to the Deceased via telegraphic transfer.

(3)  By a letter from the Deceased dated 27 July 1976, the Deceased informed the plaintiff’s Eldest Brother that due to old age and that he was living in a sanatorium, he appointed 黃仲文or Gerald Wong (“Gerald”) to handle rental affairs of the Property on his behalf.  The plaintiff’s Eldest Brother then paid the rent through telegraphic transfer to Gerald.  Gerald wrote to the plaintiff’s Eldest Brother from time to time to acknowledge receipt of rent.  Notably, in Gerald’s letter dated 4 February 1977, Gerald stated that: “我伯於去年尾不幸逝世，本應早日告你知，因他有遺囑寄給我要問法院登記，由律師申請批準這張遺囑是我承領他遺產及管理他生前之事務…”.

(4)  The plaintiff’s Eldest Brother and the plaintiff’s family gradually became suspicious of Gerald’s authority to collect rent of the Property.  From about the third quarter of 1982, the plaintiff’s Eldest Brother and the plaintiff’s family decided to stop paying rent; and ever since then, the plaintiff and her family have been in sole use and exclusive occupation of the Property without paying any rent; and have treated the Property as their own.

(5)  From about the third quarter of 1982, the plaintiff has continued to pay property tax, government rates and rent relating to the Property, as well as maintenance for the upkeep of the Property.  She contributed a sum of HK$60,000 for the renovation fees of the whole building in which the Property forms part in 2012, and paid a total sum of HK$35,060 in respect of repairing windows and construction works in compliance with the Notice issued by the Building Authority.

(6)  The plaintiff and her three younger brothers, namely Ng Ming Keung (who died in 2017), Ng Kwok Wah (who died in 2018) and Ng Ming Kwan Jyrone (“Ming Kwan”) under the plaintiff’s permission, have been residing in the Property until their deaths in the case of Ng Ming Keung and Ng Kwok Wah, or until the present in the case of the plaintiff and Ming Kwan.  Ming Kwan forgoes his right to claim adverse possession of the Property, if any.

(7)  When the plaintiff commenced the present proceedings, the plaintiff’s family’s prior attempts to locate the whereabouts of the Deceased and/or any of his acquaintances who may know the whereabouts of the Deceased were unsuccessful, except it was discovered on 3 July 2014 that the Deceased had passed away on 31 July 1976 in Montreal, Canada.  This is consistent with Gerald’s letter in 1977 that his uncle passed away the year before.

(8)  The Deceased, his children and his agents (including Gerald) have never tried to contact the plaintiff’s family since they ceased paying rent in the third quarter of 1982, nor have they tried to reclaim possession of the Property.

C.  SERVICE OF THE ORIGINATING PROCESS ON THE DEFENDANT

4.When the plaintiff commenced the present proceedings, the plaintiff was only aware that the Deceased had passed away in Montreal, Quebec on 31 July 1976.  On 15 June 2022, the plaintiff discovered that one Wong Jung Moon is the executor of the estate of the Deceased (the “Estate”). Specifically, in a Will executed by the Deceased on 28 July 1976, the Deceased appointed “吾侄仲文(JUNG-MOON)” to manage the properties of the Deceased.  It was then confirmed that Gerald and Wong Jung Moon, ie the defendant herein, are the same person.  Shortly after 15 June 2022, Ms Virginia Lam, the plaintiff’s appointed lawyer in Quebec, advised that she found a contact person at the Montreal Wong Family Association who was able to provide a current telephone number of the defendant who is in a long term care facility at the Montreal Chinese Hospital.  On 25 July 2022, Ms Virginia Lam contacted the wife of the defendant, who confirmed verbally that her husband, the defendant, is the executor of the Estate.

5.By Order of Deputy High Court Judge Jonathan Chang SC dated 19 September 2022, the court appointed the defendant to represent the Estate.  Leave was granted to the plaintiff to serve the Re-Amended Originating Summons on the defendant.

6.On 28 October 2022, the Re-Amended Originating Summons was personally served on the defendant, who confirmed his identity with the process server. However, up to now, the defendant has not filed any acknowledgement of service.

7.In compliance with Order 28, rule 5(2) of the Rules of the High Court, Cap 4A (“RHC”), the plaintiff gave notice by letter of Messrs Chan, Lau & Wai dated 15 June 2023 that that she would restore the hearing of the Re-Amended Originating Summons after the expiration of 14 days.  Then, in compliance with Order 28, rule 3(1) RHC, the plaintiff by letter dated 20 July 2023 served a copy of the Notice of Appointment to Hear Originating Summons on the defendant.

D.  RELEVANT PRINCIPLES AND APPLICATION

8.Order 28, rule 4(1) RHC provides that:

“The Court by whom an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the order may be varied or revoked by a subsequent order of the Court on such terms as it thinks just.”

9.Practice Note 28/4/2 of the Hong Kong Civil Procedures 2023 states that:

“Summary disposal - At the hearing of an originating summons, the action may be disposed of summarily where the court is satisfied that there are no triable issues ...

Order 28 rule 4(1) approximates the rights of a plaintiff in an action begun by originating summons to those under O.13, O.14 and O.19 of a plaintiff in an action begun by writ. There is no equivalent of a ‘snap judgment’ under O.13 rr.1-5 or O.19 rr.1-6 in the originating summons procedure. However, if the defendant files no evidence under O.28 r.1A(4), or the plaintiff considers that the defendant’s evidence discloses no triable issue, he may seek a summary judgment under r.4(1).” (Emphasis by underlining supplied)

10.As the defendant has not participated in the proceedings, I am satisfied that the plaintiff is entitled to seek a summary judgment under Order 28, rule 4(1) RHC.

11.The plaintiff’s evidence in her Affirmations, which the defendant has not challenged, clearly satisfies the requirement of factual possession and intention to possess for at least 20 years starting from 1987.

12.There is a preliminary point on whether the plaintiff can claim adverse possession of the Property on her own.  In this regard, I agree with the plaintiff’s submissions that the plaintiff is the only person who can claim adverse possession of the Property:

(1)  Although the plaintiff’s Eldest Brother decided not to pay rent to the Deceased or the defendant in the third quarter of 1982, the plaintiff’s Eldest Brother dropped out of the picture subsequently by 1987, as the plaintiff’s Eldest Brother no longer occupied the Property.  Thus, any right of the plaintiff’s Eldest Brother as a squatter has been abandoned.

(2)  From about 1987, the plaintiff has been in sole possession of the Property.  Ng Ming Keung, Ng Kwok Wah, and Ming Kwan occupied the Property with the permission of the plaintiff.

(3)  Ming Kwan confirmed by affirmation that he lived in the Property with the permission of the plaintiff. Accordingly, Ming Kwan cannot be a squatter.

(4)  The plaintiff’s evidence is that Ng Ming Keung and Ng Kwok Wah occupied the Property with her permission.  Even if the plaintiff’s evidence on permission is not accepted (such that the plaintiff, Ng Ming Keung and Ng Kwok Wah became joint squatters), after the death of Ng Ming Keung and Ng Kwok Wah, the plaintiff has become the sole squatter by virtue of the right of survivorship.

13.As to the requirement of factual possession, the plaintiff’s unchallenged evidence is that she has been occupying the Property without permission from anyone since about 1987.  Ng Ming Keung, Ng Kwok Wah, and Ming Kwan stayed in the Property because they were permitted by the plaintiff.  The plaintiff clearly exercised physical control of the Property. Factual possession is clearly established.

14.As to the requirement of intention to possess, the plaintiff initially stopped paying rent to the defendant because she doubted whether the defendant had the right to accept the rent.  Even after the plaintiff knows that the defendant was the executor of the Estate, the plaintiff still has not paid rent to the defendant.  Further, during the relevant period, the plaintiff assumed the role as the owner of the Property to pay property tax, government rates and rent, and various capital expenditure (see paragraph 3(5) above).  The intention to possess the Property is clear.

E.  CONCLUSION

15.For the reasons set out above, I granted the declaration as sought in the Re-Amended Originating Summons, except that the date of “the third quarter of 1982” be replaced by “1987”.