Tsang Kwok Leung v. Leung Chung Po Allen in His Capacity As the Sole Executor of the Estate of Leung Tung Sang Aka Liang Tung Sang, Deceased

DCCJ 2232/2021

[2024] HKDC 449

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2232 OF 2021

————————

BETWEEN

————————

————————————————

REASONS FOR JUDGMENT

————————————————

A. Introduction

1.The Defendant (“D”) is the executor of the estate of Leung Tung Sang the Deceased who was the legal owner of the property on 2^nd Floor of 257 Queen’s Road East (“Property”). The Plaintiff (“P”) seeks declaratory relief that D’s title to the Property has been extinguished and that P has acquired possessory rights, titles and interest of and in the Property.

2.The writ of summons was first issued on 13 May 2021 and extended for 12 months from 13 May 2022. The statement of claim was filed on 4 November 2022. Pursuant to the order of the Court dated 19 January 2023, the writ of summons together with the statement of claim was duly served by way of substituted service by advertisement in the 頭條日報, a local Chinese newspaper published and circulating in Hong Kong on 3 March 2023.

3.The Defendant never appeared and never filed any notice of intention to defend or defence.

4.P now applies for default judgment against D pursuant to O 13 r 6 and O 19 r 7 of the Rules of the District Court, Cap 336H.

B. Legal Principles

Default Judgment

5.On a default judgment application under O 19 r 7, the court gives its judgment on the basis of the pleadings made in the statement of claim only. Accordingly, I will only consider the pleaded facts and not any evidence filed.

6.It is not the normal practice of the court to make a declaration without a trial. However, this is just a rule of practice subject to exceptions depending on the actual circumstances of the case such as the plaintiff’s genuine need for such a declaratory relief. The court will scrutinise the application carefully and will not hastily grant the relief sought. When such circumstance does exist, the declaratory relief granted should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice to him or her. See: Hong Kong Civil Procedure 2024, §19/7/20.

7.Claims for declaration for possessory title as a result of adverse possession are a category of special cases whereby the court has recognized the genuine need of the plaintiff for such declaratory relief. Cases such as Cheung Wing Fan v Wong Wai Ping [2021] HKCFI 516 and Lee Wah Put and Anor v Li Ip Shing [2022] HKCFI 529 are examples where such relief was granted.

Adverse Possession

8.Pursuant to ss 7 and 17 of the Limitation Ordinance (Cap 347), no action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him and that after the expiration of the limitation period, the title of that person to the land shall be extinguished.

9.The plaintiff has the burden 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) (1997-98) 1 HKCFAR 55 at 68E.

C. The Present Case

10.P’s pleaded case is as follows:

(1) P found the Property in 2003 when he was carrying out renovation works nearby.

(2) Upon taking possession of the Property, he, among others, replaced the lock of the iron gate of the front door to keep trespassers out of the Property.

(3) Since July 2003, he has been in exclusive possession of the Property for the purpose of storage.

(4) By the time of the commencement of this action (ie 13 May 2021), P has been in exclusive possession of the Property for more than 17 years consecutively.

11.I am satisfied that P has sufficiently pleaded the continuous and uninterrupted possession and occupation of the Property for at least 12 years prior to the commencement of this action, with the requisite intention to possess the Property to the exclusion of the whole world, including D.

12.In the circumstances, I consider that it would be an appropriate case in which to grant declaratory relief.

D. Relief

13.However, the reliefs originally asked for in the statement of claim are more extensive than what is just and necessary. During the hearing, P voluntarily abandoned the excessive parts of the relief asked for. I therefore made the declaratory orders as so amended, with no order as to costs.

Mr Fan Hoi Kit Alex, instructed by Benny Kong & Tsai, for the Plaintiff

The Defendant was not represented and did not appear