Tsai Chi Wai v. Lin Ming Hsia

DCCJ 146/2022

[2023] HKDC 1793

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 146 OF 2022

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REASONS FOR JUDGMENT

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I.  Introduction

1.By Summons dated 25 April 2023, the Plaintiff seeks default judgment against the Defendant pursuant to Order 19 Rule 7 Rules of the District Court (Cap 336H) (“RDC”) based on a claim in adverse possession against the Defendant (“the Summons”).

2.The substantive hearing of the Summons was held on 20 September 2023. The Defendant was absent from the hearing.

3.After being satisfied that the Defendant has been properly served with the Writ of Summons enclosing the Statement of Claim, the Summons and the other relevant documents and that the Defendant has sufficient notice of the substantive hearing, I proceeded with the said hearing and granted the Summons in the terms as set out in paragraph 21 below. I will now give my reasons.

II.  The Plaintiff’s Pleaded Case

4.The Plaintiff’s case is set out in its Statement of Claim dated 11 January 2022 (“the SoC”). I will consider the Plaintiff’s claim based on the facts as pleaded in the SoC. I will set out the material facts in the SoC as follows.

5.The Defendant is the registered own of Flat A on 1/F, Dak Shing Building, 88 Java Road, Hong Kong (“the Property”). By Assignment registered in the land registry by Memorial No UB3896269, the Defendant acquired the title to the Property on 20 October 1988.

6.The Plaintiff and his family consisting of his late father Tsai Hsien Chiao (蔡賢僑) (“Tsai Senior”), his late mother Madam Lee Tak Siu (李德秀) (“Madam Lee”), his elder sister Madam Tsai Ah Wai (蔡雅慧) (“Ah Wai”), elder brother Tsai Chi Keung, Antonio (蔡志強) (“Chi Keung”), late elder brother Tsai Chi Fai (蔡志輝) (“Chi Fai”) and younger sister Tsai Nga Lai (蔡雅麗) (“Nga Lai”) (collectively as the “Family”) have been in adverse possession of the Property since 1989.

7.Based on the information imparted to the Plaintiff by his Tsai Senior, Tsai Senior found out that the Defendant, who is not a resident of Hong Kong, had left Hong Kong after the purchase of the Property. Knowing that the Property was unoccupied, the Family moved in and took possession of the Property since 1989. The Plaintiff and the Family have used the Property as their family home continuously ever since.

8.Since 1989, the Property has been in successive and exclusive possession of the Plaintiff and the Family, and then the Plaintiff alone. The Plaintiff and his Family have been in continuous and exclusive possession of the Property without interruption. Neither the Defendant nor anyone claiming or deriving title from, under or through her has ever made any objection, claim or interruption in respect of the possession of the Property by the Plaintiff or his predecessors.

9.The Plaintiff and/or his Family have never paid any rent or licence fees to the Defendant or anyone claiming or deriving title from the Defendant.

10.After taking exclusive possession of the Property in or around 1989:

(1)  Tsai Senior (from 1989 to around 2007) and the Plaintiff (from around 2007 until present) were responsible for the payment of government rates.

(2)  The Plaintiff was responsible for the payment of government rent since June 2008.

(3)  Tsai Senior (from 1989 to around 2007) and the Plaintiff (from around 2007 until present) were responsible for the payment of the monthly management fee to the Incorporated Owners of Dak Shing Building.

(4)  Tsai Senior (from 1989 to around 2007) and the Plaintiff was responsible for the payment of utilities fees such as electricity, water and gas for the Property.

(5)  The Plaintiff opened a broadband internet account with HKBN since 2011 for the Property.

(6)  Tsai Senior (from 1989 to around 2007) and the Plaintiff (from around 2007 until present) were responsible for the payment of repair, maintenance costs and expenses of the Property.

(7)  Ah Wai, Chi Keung, the late Chi Fai and Nga Lai moved out of the Property respectively in 2000, 1999, 2002 and 2004. Madam Lee passed away in 2012. Tsai Senior moved into an elderly home in 2017 and passed away in 2020.

(8)  The Plaintiff continues to remain in uninterrupted and exclusive possession of the Property since 1989 and up to the present.

(9)  The use, occupation, possession and control of the Property by the Plaintiff and his Family since 1989 was/is apparent, open and uninterrupted to the exclusion of others.

(10)  The above exclusive possession by the Plaintiff and his Family was accompanied by the adverse intention to treat the Property as their own.

11.By reason of the matters above, the Plaintiff pleaded that he has exclusively occupied the Property for over 30 years since 1989 up to the present.

III.  Applicable legal principles

12.The common law principles on adverse possession have been summarised in Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55 at 68E-J:

(a)  A person claiming to be in adverse possession must be shown to have both factual possession and the intention to possess the land to the exclusion of all other persons including the paper owner, ie the animus possidendi.

(b)  The intention to possess involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.

13.Section 7 (2) of the Limitation Ordinance (Cap 347) provides that for non-government land, no action shall be brought by any other person to recover the land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. The combined effect of the common law and Sections 7, 8, 13 and 17 of the Limitation Ordinance, is that for non-government lands, the paper owner’s title to the land would be extinguished vis-à-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite intention to possess.

14.Order 19, rule 17(1) of the RDC provides that on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim. The Court therefore will not look beyond the SoC in deciding the present application.

15.As stated in Hong Kong Civil Procedure 2023 at §19/7/20, while it is not the normal practice of the Court to make a declaration without a trial, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice will not be done if such relief are denied. Where declaratory relief is sought, the Court will scrutinise the application for default judgment carefully and does not hastily grant the relief sought. The declaratory relief to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them.

16.As an example, in Lai Wai Kuen v Wong Shau Kwong HCA 3424/2003 (unrep, 12 November 2004), Lam J (as he then was) granted declarations in respect of the plaintiff’s claim of adverse possession in an application under Order 19 rule 7, Rules of the High Court after having been satisfied that the plaintiff had a genuine need for the declaratory relief and such relief was justified on the merits.

IV.  Analysis

17.Based on the pleaded case of the Plaintiff as set out in the SoC, I am satisfied that the Plaintiff has shown a sufficient degree of physical control over the Property. In particular:

(a)  Since 1989, the Plaintiff and his Family had been residing in the Property to the exclusion of the Defendant and any other persons. They have not paid any rental or licence fees to the Defendant or any person claiming or deriving title from her. The Plaintiff is the person who has resided in the Property for the entire period since 1989 up until the present, with Tsai Senior, Madam Lee and the Plaintiff’s siblings passing away or moving out from the Property after 1989 at different points of time.

(b)  Since around 2007 up until the present, the Plaintiff has been responsible for paying the government rates. Since around 2008 up until the present, the Plaintiff has been responsible for paying the government rent.

(c)  Since 2007 up until the present, the Plaintiff has also been responsible for paying the management fees, repair, maintenance costs and expenses of the Property.

18.By doing the above, the Plaintiff has also demonstrated to the world at large, including the Defendant, a clear intention to dispossess the Defendant’s title to the Property.

19.Further, upon considering the 2^nd Affirmation of Tsai Chi Wai dated 7 September 2023 and the exhibits therein, I am satisfied that Tsai Senior died intestate and there has not been any grant of probate of his estate. By Renunciations of Inheritance, each of the Plaintiff’s surviving siblings, namely Ah Wai, Chi Keung, Nga Lai have irrevocably renounced any interest which they may have in the Property. In such circumstances, Tsai Senior’s estate does not need to be joined in the proceedings.

20.For the reasons above, and upon closely scrutinising the Plaintiff’s case, I am satisfied that the Plaintiff has demonstrated his case of adverse possession. The Plaintiff has a genuine need to obtain the declaratory relief and it is just for the relief to be grant to the Plaintiff without the need for him to go through a trial. The Defendant has left Hong Kong and has not been residing in the Property since 1989. The Defendant did not take any step to oppose the proceedings and did not attend the hearing. The Plaintiff should not be required to incur further costs to proceed with a trial for the purposes of obtaining the declaratory reliefs against the Defendant.

V. Disposition

21.For the above reasons, I grant the default judgment in the following terms:

(a)  A declaration that the Plaintiff has acquired possessory title to the Property;

(b)  A declaration that the Defendant has lost the right to bring any action to recover the Property;

(c)  A declaration that the Defendant’s title and interest of and in the Property has been extinguished;

(d)  A declaration that the Plaintiff has established a possessory title and acquired all the estate, right, title, interest and benefit, including, inter alia, the ownership and the right to exclusive possession and control, and physical occupation of and in the Property, and is accordingly entitled to be registered as the owner of the same in the Land Registry; and

(e)  There be no order as to costs.

22.Lastly, I thank the Plaintiff’s counsel, Mr Ho, for his assistance.

Mr Raymond Ho instructed by K B Chau & Co for the Plaintiff

The Defendant was not represented and did not appear