Chan Yim Kwong Joe v. The Personal Representative(S) of the Estate of Chiu Chi Hang, Deceased

HCA 1327/2016

[2024] HKCFI 191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1327 OF 2016

________________________

BETWEEN

_______________________

_______________________

REASONS FOR JUDGMENT

_______________________

1.Before me is the Plaintiff’s renewed application by summons taken out on 4 December 2023 for judgment upon the default of filing an Acknowledgment of Service and upon the default to file a Defence. The Plaintiff seeks various declarations giving her a possessory title to the property known as 6^th Floor, No 43 Hong Keung Street, Kowloon, Hong Kong on the basis of her adverse possession of the same.

2.At the conclusion of the hearing, I gave judgment to the Plaintiff and granted a declaration that :

(1) The Plaintiff has been in adverse possession of the property known as 6^th Floor, No 43 Hong Keung Street, Kowloon, Hong Kong (“the Property”) since January 2002 for a period of no less than 12 years prior to the commencement of this action, and the Plaintiff has thereby acquired and is entitled to an indefeasible possessory title, interest and/or right in and/or over the Property previously registered in the name of Chiu Chi Hang (now deceased) in the Land Registry by Memorial No UB525090; and

(2) The title, interest and/or rights in the Property of the said Chiu Chi Hang (now deceased) has been extinguished by virtue of section 17 of the Limitation Ordinance Cap 347.

3.These are my reasons.

4.The Writ of Summons herein was issued by the Plaintiff on 18 May 2016 endorsed with a Statement of Claim.

5.There was a previous application for default judgment in 2016 leading to various steps having been taken, including the amendment of the Writ and the Statement of Claim and their advertisement in the amended form in 2 newspapers in October 2016, the making of various probate enquiries, and the re-amendment to the Writ and the Statement of Claim in November 2020.

6.On 14 September 2021, Master Kot ordered that the Official Solicitor be appointed to represent the Estate of Chiu Chi Hang, Deceased (respectively, “the Deceased” and “the Estate”) limited to accepting service of the Re-amended Writ endorsed with the Re-amended Statement of Claim. The Official Solicitor was duly served on 29 September 2021 and has since become funtus.

7.On 14 November 2023, Master J Wong ordered that this action do proceed in the absence of a person representing the Estate, and that any subsequent order or judgment given or made do bind the Estate to the same extent as it would have bound had the personal representative of Chiu Chi Hang, Deceased been a party hereto.

8.I am satisfied that there were such defaults entitling the Plaintiff to apply for default judgment pursuant to O19 r7 and that I should proceed with the hearing in the absence of the Defendant.

9.It is trite that upon such an application for default judgment the court shall give judgment as the plaintiff appears entitled to on his statement of claim without admitting any evidence; though the court retains its discretionary power whether to give judgment or, say, to extend time when it is just to do so.

10.It is also trite that to establish a possessory title by adverse possession, the squatter must establish factual possession in the form of a sufficient degree of exclusive physical control of the subject land, the necessary animus possidendi (an intention to possess the subject land to the exclusion of all other persons including the paper owner), and that he has such factual possession and animus possidendi continuously for the whole of the requisite time period.

11.The Plaintiff’s pleaded case, in summary, is this. She got acquainted with and then became very good friend to the Deceased’s son (“Chan”) around 1990. She frequently visited and had meals with the Deceased (who was the registered owner of the Property) at the Property, and she and the Deceased had also become very good friends. In 1996, Chan passed away and the Plaintiff moved into the Property to take care of the Deceased. The Plaintiff became the god-daughter of the Deceased. The Plaintiff had since resided with the Deceased until she passed away on January 2002. Then after, she continued to reside in and remained in exclusive possession of the Property without paying rent to anyone, and without anyone’s permission, and as if she were the owner thereof. The Plaintiff has since registered herself as the account holder of the utilities and the payer of the government rent and rates in respect of the Property, and has been paying them since.

12.According to her pleaded case, the Plaintiff resided in the Property by the license of the Deceased. However, it is trite law that a licence to occupy a property would be automatically terminated upon the death of the licensor. Thus, the Plaintiff’s continuous exclusive occupation and use of the Property after the death of the Deceased could not have been, and was no longer, pursuant to the license given by the Deceased.

13.I am satisfied that the averments pleaded by the Plaintiff, as above summarized, sufficiently support her case that since January 2002 to date, she has been in adverse possession of the Property with a sufficient degree of exclusive physical possession and control and with the requisite animus possidendi. I am also satisfied that there is a genuine need for the declaratory relief sought, which is appropriate to be granted. I am therefore satisfied that on her pleaded case, the Plaintiff is entitled to the relief sought.

14.For these reasons, I gave default judgment to the Plaintiff and granted the said declaration, with no order as to the costs of this action.

Ms HO Sau Wai of Messrs Sammy Ip & Co, for the Plaintiff

The Defendant was not represented and did not appear