So Tin Ho v. Lui Sze Mui and Another

DCCJ 6439/2019

[2023] HKDC 1235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6439 OF 2019

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DECISION

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INTRODUCTION

1.This is the plaintiff’s application by Summons filed on 4 July 2023 under Order 13 rule 6 and Order 19 rule 7 for a default judgment against the 1^st and 2^nd defendants in default of any notice of intention to defend against the plaintiff’s claim based on adverse possession for the following declarations:-

(1)  A declaration that the 1^st and 2^nd defendants’ legal and beneficial interests of and in the landed property situated at 7/F, No 206, Shau Kei Wan Road, Hong Kong (the “Property”) have been extinguished under and by virtue of section 17 of the Limitation Ordinance (Cap 347); and

(2)  A declaration that the plaintiff has acquired a good possessory title to the Property by possession thereof for a continuous period of not less than 20 years.

LEGAL PRINCIPLES IN RELATION TO DEFAULT JUDGMENT

2.The legal principles in respect of an application for a default judgment are trite. Relevant to the present purposes are that the statement of claim must show the plaintiff is entitled to the relief: see Hong Kong Civil Procedure 2023 Vol 1 §19/7/14; that in general, the court only reads the statement of claim and cannot receive any evidence but the court has in the past considered evidence in adverse possession cases where the evidence was against the grant of the declaratory relief being sought: see Hong Kong Civil Procedure 2023 Vol 1 §19/7/11; and that in general, the court would not grant declaratory relief without trial unless there is genuine need: see Hong Kong Civil Procedure 2023 Vol 1 §19/7/20.

LEGAL PRINCIPLES IN RELATION TO ADVERSE POSSESSION

3.The legal principles in relation to adverse possession are also trite. In gist, to establish adverse possession, the squatter carries the burden of proof to satisfy the court that the squatter, (1) for a sufficient period of time (namely, 20 years if the adverse possession started before July 1991, or 12 years if it started after July 1991), has had (2) factual exclusive possession; and (3) the requisite intention to possess. Where the squatter occupies the property with the consent of the registered landowner, there is no such requisite intention to possess, and in this regard, it is for the squatter to prove that the occupation was without the consent of the registered owner: see Gotland Enterprises Ltd v Kwok Chi Yau and others, CACV 260/2014, 19 January 2016 at §§19, 29-31 per Lam VP (as he then was) giving the unanimous judgment of the Court of Appeal (Lam VP, Kwan JA and Harris J). For a flat, I would expect that like an open area which there would usually be physical barriers for exclusive possession: see Gotland, supra, at §37, the squatter’s exclusive holding of the keys to the flat is a strong indicia of (2) and (3) above. That said, (2) and (3) are mixed questions of law and fact which the court can only answer after considering all the relevant facts.

4.Further, to say that the registered owner abandons the property, the registered owners’ acts inconsistent with ownership have to be clearly established. In the usual circumstances, mere non-user, without more, by the registered owner is no abandonment: see Kan Yin Ming v King Cheer Ltd, DCCJ 4344/2013 at §27.

ANALYSIS

5.In the present case, So Foo Wai was the registered owner of the Property since 12 October 1971. So Foo Wai passed away on 2 March 1992, and on 16 May 1995, the 1^st defendant as well as a Ng Siu Fong were granted probate in respect of the Will of So Foo Wai executed on 17 January 1989. On 6 January 2013, Ng Siu Fong passed away and the 2^nd defendant became the administrator of the estate of Ng Siu Fong by Letters of Administration of even date.

6.In respect of how the plaintiff came into possession of the Property and how the plaintiff possessed the Property, the plaintiff pleads that in the Re-Amended Statement of Claim, which the plaintiff relies upon in the present application:-

“8. Before the said So Foo Wai passed way, the said So Foo Wai had allowed the plaintiff’s friend named Tai Mo Sim to occupy the [Property] for living.

9. The said Tai Mo Sim had left the [Property] in or about 1997 and the plaintiff then occupied the [Property] since then.

10. Upon the plaintiff’s moving in to occupy the [Property], the plaintiff at all material times had settled all the utilities charges, management fee, the Rent and the Rates.

11. The plaintiff had also settled all the repair costs for the [Property] for interior and the external walls of the building situated at No 206 Shau Kei Wan Road where the Subject Property was situated at. [The plaintiff then provides the particulars of settling such costs].

12. Since then, the plaintiff had been occupying the [Property] by himself.

13. At all material times, the 1^st defendant and/or Ng Siu Fong and/or the 2^nd defendant did not appear to claim for rental or claim for possession of the [Property] either by themselves or by their servants, agents or employees.

14. The plaintiff avers that in or after July 1997, the 1^st defendant’s and Ng Siu Fong’s and/or the 2^nd defendant’s discontinued possession of the [Property] and the plaintiff has been occupying continuously and the plaintiff still is in exclusive possession of the [Property].”

7.On this pleading, even assuming that there would be good reasons for the declaratory relief being sought, I refuse to grant default judgment as sought, for the following reasons:-

(1)  The element of intention to possess is absent. The plaintiff’s plea is only that his friend Tai Mo Sim was allowed by So Foo Wai to occupy the Property for living before So Foo Wai passed away in 1992. Tai Mo Sim lived until 1997, that is, after So Foo Wai passed away in 1992 and the probate was granted to the 1^st defendant and Ng Siu Fong in 1995. There is no plea that after So Foo Wai passed away, the nature of Tai Mo Sim’s occupation changed from consented to non-consented. Then the plea suggests that the plaintiff took the stead of Tai Mo Sim. There is no plea of non-consent by the 1^st defendant and Ng Siu Fong.

(2)  The element of factual possession is also absent. There is only a mere plea of occupation, and pleas in support of such mere plea are that the plaintiff has paid the expenses in respect of the Property. But such payments are insufficient to constitute any factual possession. I also notice that there is no plea of the plaintiff’s exclusive holding of the keys to the Property; nor is there any plea that the defendants hold no keys to the Property.

(3)  There are no acts pleaded as to how the defendants have abandoned the Property. The only allegation the plaintiff makes in support of the abandonment seems to be non-occupation by the defendants. This is insufficient, as explained above.

CONCLUSION

8.In the circumstances, I dismiss the plaintiff’s application with no order as to costs.

Ms Vienna Fong, instructed by Francis Kong & Co, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear