Chan Shun Man and Another v. Tsang Cho Sau

DCCJ 2041/2022

[2024] HKDC 1305

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2041 OF 2022

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BETWEEN

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J U D G M E N T

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Introduction

1.By Summons dated 29 April 2024 (“the Summons”), the 1^st Plaintiff (“P1”)  and 2^nd Plaintiff (“P2”)  (collectively, “Ps”), apply for default judgment under O 19, r 7 of the Rules of District Court, Cap 336H (“RDC”)  against the Defendant (“D”).

2.By the Summons, Ps seek a judgment for:

(1)  Declaring that Ps have acquired possessory title to all that Roof immediately above the Second Floor of No 67 Ma Sim Pai Resited Village erected on all those pieces or parcels of ground situate lying and being at Tsuen Wan, New Territories, Hong Kong and registered in the District Land Office Tsuen Wan as Lots Nos 1385 and 1384 in Demarcation District No 453 (“the Property”)  by adverse possession pursuant to sections 7, 8, 13 and 17 of the Limitation Ordinance, Cap 347 (“LO”);

(2)  Declaring D’s title to the Property has been extinguished by virtue of sections 7, 8, 13 and 17 of LO in favour of Ps;

(3)  An injunction to restrain D, whether by himself, his successor in title, agents, employees or advisors from interrupting in or otherwise howsoever dealing with and/or from acting in a manner inconsistent with Ps’ possessory title of the Property; and

(4)  Costs.

3.Ms Szeto, counsel for Ps confirmed at today’s hearing that Ps no longer seek the injunction and costs.

4.D did not appear at today’s hearing but I was satisfied that all the relevant court documents have been served on D, pursuant to the order for substituted service, and it is expedient to proceed in D’s absence.

Background Facts and Procedural History

5.Ps issued the Writ of Summons on 1 June 2022.

6.By an order dated 4 August 2023, Master Anny Chak ordered that the validity of the writ be extended for 12 months from the date of its expiry.

7.According to the Statement of Claim filed on 21 February 2024:

(1)  D is the registered owner of the Property;

(2)  Ps are the registered owners of the Second Floor of No 67 Ma Sim Pai Resited Village, Tsuen Wan, New Territories, Hong Kong;

(3)  On around 10 June 1985, Ps’ mother, Au Sau Tin (“Au”)  and Chan Yuen Shing entered into a Deed of Licence with D for the right to use and enjoy the Property from 10 June 1985 to 27 June 1997;

(4)  Before December 2009, Ps secured the key of the Property from Au and entered into the Property and occupied the Property as their mother’s bare licensee;

(5)  Au passed away in December 2009 revoking the licence previously granted to Ps;

(6)  Thereafter, seeing that D had abandoned the Property, Ps took exclusive possession of the Property by changing the lock of the Property in around December 2009 and treated themselves as the exclusive owners of the Property;

(7)  Since December 2009, Ps paid for all expenditures of the Property including electricity, water supplies and Government rent;

(8)  Neither D nor anyone claiming or deriving title from, under or through D, has ever made any objection, claim or interruption in respect of the possession of the Property by Ps;

(9)  Ps have never paid rent or licence fee to D or anyone claiming or deriving title from D;

(10)  By reason of the matters aforesaid, Ps have acquired exclusive physical possession of the Property and evinced a clear, open and unequivocal intention to adversely possess the Property to the exclusion of the world at large; and

(11)  The rateable value of the Property does not exceed HK$240,000 and the claim is within the jurisdictional limit of the District Court.

8.No notice of intention to defend and no defence was ever filed by D.

Applicable principles

9.The applicable principles are well-settled.

10.In a default judgment application, the court looks to the pleaded facts alone and no other evidence will be permitted: see Hong Kong Civil Procedure 2024, Vol 1, §19/7/11; Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §§26-27 applied in Yeung Kam Heung v Yu Yi Shek [2023] HKDC 464, §19.

11.Moreover, the principle that a declaration will not be granted when giving judgment in default of defence is a rule of practice and not of law and will give way to the paramount duty of the court to do fullest justice to the plaintiff to which he is entitled.  Indeed, where declaratory relief is the only and substantial relief sought by the plaintiff, it may be necessary to make a declaration to do justice to the plaintiff.  However, the declaratory reliefs 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: see Hong Kong Civil Procedure 2024, Vol 1, §§19/7/14 and 19/7/20.

12.As for the applicable principles for adverse possession, the three elements were helpfully summarized by Deputy High Court Judge William Wong SC in Lam Clansmen Mutual Aid Association Limited v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, Deceased [2020] HKCFI 2816 at §17:

(1)  First, factual possession.  The adverse possessor must show a sufficient degree of physical control of the land.  In this connection, enclosure is probably the strongest possible evidence of adverse possession;

(2)  Second, animus possidendi, in other words an intention to possess the land to the exclusion of all other persons include the paper owner.  Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner;

(3)  Third, the requisite time period.  For non-Government lands, the time period is 12 years: section 7(2)  of LO.

(4)  The combined effect of the common law, together with sections 7, 8, 13 and 17 of LO, is that for non-Government lands, the paper owner’s title would be extinguished vis-à-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite animus possidendi.

Analysis and Disposition

13.I am satisfied that there was sufficiently and properly pleaded both factual possession and the requisite intention to possess the Property by Ps for more than 12 years prior to the commencement of this action.  The acts of changing the locks, occupying the Property to the exclusion of others, paying all the expenditures of the Property and not paying any rent or licence fee to anyone all demonstrate exclusive possession and the requisite intention to possess.

14.Furthermore, I am satisfied that as the declaratory reliefs are the only and substantial relief sought, there was a genuine need to grant the declarations sought to do fullest justice to Ps.

15.I therefore grant default judgment against D and the following orders:

(1)  A declaration that Ps have been in adverse possession of the Property for a period of not less than 12 years prior to the commencement of the present action and have thereby acquired an indefeasible possessory title to the Property;

(2)  A declaration that D’s title to the Property has been absolutely extinguished by virtue of sections 7(2)  and 17 of LO; and

(3)  There be no order as to costs of this action, including this application.

Ms Joanne Szeto, instructed by Benny Kong & Tsai LLP, for the 1^st and 2^nd Plaintiffs

The Defendant was not represented and did not appear