Hui Ming Chuen v. The Personal Representative of Poon Mae King

DCCJ 1159/2020

[2023] HKDC 1681

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1159 OF 2020

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REASONS FOR JUDGMENT

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Introduction

1.This is an application for leave to enter default judgment against the Defendant pursuant to Order 19 rule 7 of the Rules of the District Court, Cap 336H for, inter alia, the following declarations:

(i)  A declaration that the Defendant’s title, interest and/or rights in and/or over Flat A, 12^th Floor, Wanchai Chong Hing Building, Nos 265/267 Hennessy Road, Hong Kong (“the Property”) has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347; and

(ii)  A declaration that the Plaintiff has acquired and is entitled to possessory title of the Property against the personal representative of Poon Nai King (“Poon”), who is and was at all material times since 20 April 1971 the registered owner of the Property on record.

2.The rateable value of the Property does not exceed HK$320,000 and hence the relief sought falls within the jurisdiction of section 35 of the District Court Ordinance, Cap 336.

3.The Plaintiff commenced the present action against the Defendant on 19 March 2020. Personal service on the Defendant could not be effected despite multiple attempts.

4.Upon being satisfied that the Defendant had passed away, Master Brian Mak on 19 October 2021 ordered, inter alia, that the Official Solicitor be appointed to represent the estate of Poon, the deceased for the limited purpose of accepting the service of the Amended Writ of Summons. The Amended Writ of Summons was duly served on the Official Solicitor on 21 October 2021.

5.By Order of Master June Cheung dated 26 November 2021, it was ordered, inter alia, that the Plaintiff be at liberty to proceed with the proceedings against the Defendant in the absence of any person representing the personal representative of Poon, deceased; and that the order made therein and any subsequent order and/or judgment made in these proceedings shall bind the estate of Poon, the deceased.

6.The Plaintiff subsequently filed the Statement of Claim on 8 March 2023. On the basis of the Defendant’s default of defence, the Plaintiff took out the present Summons on 21 August 2023. The Secretary for Justice has indicated by its letter dated 6 October 2023 to Plaintiff’s solicitors that she has no intention to claim any interest in the estate of Poon, the deceased.

Background of the case

7.On 1 March 1976, by a written sub-tenancy agreement with a sublessor named Fung Dor (transliteration), the Property was let to the Plaintiff for residential purpose for a fixed term from 1 March 1976 to 1 February 1979 at the monthly rent of HK$800. Since then, the Plaintiff and his family have moved into and resided in the property.

8.Upon the expiry of the said written sub-tenancy, the Plaintiff entered into an oral agreement in February 1979 with the same Fung Dor for the lease of the Property for a monthly tenancy on payment of rent to a Lee Po Chu (“Lee”), the alleged stepdaughter of Poon.

9.Save for adjustments as to the amount of the monthly rent, such arrangement continued from 1979 to mid 1991. The last payment was made by the Plaintiff to Lee on or about 3 August 1991 for the rent for August 1991, and the oral monthly tenancy was determined on 31 August 1991.

10.Since around August 1991, Lee ceased to attend the Property. After various unsuccessful attempts by the Plaintiff to locate Lee or Fung Dor, the Plaintiff ceased such attempts in or around late 1993.

Legal Principles

11.The Plaintiff relied on sections 7(2), 8(1), 12(2),13(1) and 17 of the Limitation Ordinance, Cap 347 to claim the possessory interests and right of the Property against the Defendant.

12.In Cheung Wing Fan v Wong Wai Ping, HCA 1371/2020 (unreported, 26 February 2021), Hon Au-Yeung J faced with an application for similar declaratory relief:-

“5. This application is made under Order 19, rule 7 of the Rules of the High Court. It is trite that such an application is decided by reference to the statement of claim alone without reference to evidence.

6. For adverse possession, it is for the plaintiff to prove that she had factual possession and intention to possess the subject property to the exclusion of the owner and the world at large: Wong Tak Yue v Kung Kwok Wai (No.2) (1997-8) 1 HKCFAR 55.”

13.As to the grant of declaratory relief, Hon Au-Yeung J stated that:-

“17. If relief is to be granted without trial or evidence, the right course for the court is not to make a declaration but to state on what footing the relief is to be granted. On the other hand, the rule of the court that a declaration will not be granted when giving judgment by consent is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to a party to which he is entitled. If the plaintiff has a genuine need for such relief and the court could properly grant it based on the merits of the case, declarations can be made. See Hong Kong Civil Procedure 2021, Vol 1, para 15/16/2.

18. The applicant must satisfy three requirements before a declaration will be made: (i) that he has a real (as opposed to an abstract or hypothetical) interest in the subject matter of the declaration; (ii) that he has a real interest in obtaining a declaration against the adverse party; and (iii) that the adverse party is a proper contradictor: see Koo Ming Kown v Rev Mr Mok Kong Ting & Ors [2018] HKCFI 967, 4 May 2018, DHCJ To.”

14.The Plaintiff’s counsel, Ms Yu referred this Court to Wu Chi Kwong v Estate of Cheung Man Yau [2008] 3 HKLRD 503, Recorder Gerard McCoy SC acknowledged that the normal rule under Order 19, rule 7 of the Rules of the High Court was that the court would not normally make a declaration without a trial but where the squatters have established an overwhelming case of adverse possession it would be wrong for the court not to purify the titles which had been abandoned.

Analysis of the case

15.The Court has considered the normal rule under Order 19 rule 7 of the Rules of the District Court that the court would not normally make a declaration without a trial. But, whether or not to grant default judgment is a matter of the court’s discretion, and it is not the normal practice of the court to grant default judgment without a trial though in appropriate cases exceptions can be allowed (see Chan Pui Lok Daniel v Personal Representatives of Leung Shu Ming [1917] 4 HKLRD 625, para 22).

16.In the present case, the Plaintiff and his family moved into the Property on 1 March 1976 and have resided therein since then. The Plaintiff continued to pay the monthly rent for the Property from 1979 to 1991, and the last payment was made by the Plaintiff to Lee on 3 August 1991. No further payment of rent was made by or on behalf of the Plaintiff since 31 August 1991. The Plaintiff attempted to locate Lee and/or Poon but in vain. The Plaintiff stopped locating them in late 1993. Since then until now, the Plaintiff has been in continuous exclusive possession of the Property by himself personally at all times and by his licensees at different times. On the grounds of the fact that the Plaintiff stopped paying any rent for the Property and also that he has given up locating Lee and/or Poon since late 1993, the Court accepts that the Plaintiff has demonstrated his intention to acquire the exclusive right of the Property. Moreover, he also started to make all the payments and expenses in relation to the Property including management fees and Government rates and rent and the like. It has been corroborated with all the contemporaneous supporting payment receipts of water and electricity bills, Government rates and Government rent filed by the Plaintiff. In other words, the Plaintiff has treated and dealt with the Property as if he were the owner. Further, the name of the registered owner in the utility bills and government records has been changed to the name of the Plaintiff or that of his sister on his behalf. Besides, those family members who previously resided in the Property (except for the plaintiff’s mother and elder sister who have passed away) have all confirmed on affirmation that they do not have any claim on any interest in the Property.

17.In the circumstance, I find the spirit of the case Wu Chi Kwong relied by the Plaintiff directly applicable in the present scenario. The general rule should be departed since the merits of the factual evidence hereinabove are simply overwhelmingly in favour of the Plaintiff. In order to purify the title of the Property, the Court is of the view that the Plaintiff has established a case of adverse possession for around 26 years and also that the title of the Property had effectively been abandoned by Poon, Lee and Fung Dor since late 1993.

18.Besides, this Court finds that the plaintiff’s case has satisfied the three requirements in Cheung Wing Fan, namely (i) the plaintiff has a real interest in the Property as an owner in possession; (ii) the Plaintiff has a real interest in obtaining a declaration against the Defendant so as to extinguish his title and to regulate his affairs such as by selling the Property; and (iii) the Defendant, though deceased is a proper contradictor as evidenced by the Land Search. Hence, the grant of declaratory relief would be appropriate in the present proceedings.

Costs

19.There be no costs application by the Plaintiff, hence, there be no order as to costs in the present proceedings.

Conclusion

20.In conclusion, this Court enters judgment for the Plaintiff and makes the following orders:-

(1)  A declaration that the Defendant’s title, interest and/or rights in and/or over the Property has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347;

(2)  A declaration that the Plaintiff has acquired all the possessory right, title and interests, including the right to exclusive physical occupation of and in the Property; and

(3)  There be no order as to costs.

Ms Christine Yu, instructed by Chan & Ho, for the Plaintiff

The Defendant was not represented and did not appear