Wong Yuen Hei and Another v. Wong Chi Pun and Another

HCA006611/1996

1996, No.A6611

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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Coram: Deputy Judge Lugar-Mawson in Court

Dates of hearing: 7 - 13 October 1997

Date of judgment: 26 November 1997

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J U D G M E N T

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1. This is an action by the 1^stt and 2^nd plaintiffs for a declaration that they, as successors to Wong Tak-yip, deceased, and the persons entitled under New Territories Chinese customary law to succeed to his estate or property, are the beneficial owners of a plot of land registered in the Sai Kung New Territories Land Registry as Lot No.248 in D.D.257 in Sai Kung, New Territories ("the disputed property") and in the alternative, a declaration that they have acquired a possessory title to the disputed property.

2. The 1^st and 2^nd plaintiffs' case is this:

3. They are the registered owners of a plot of land registered in the Sai Kung New Territories Land Registry as Lot No.249 in D.D.257 in Sai Kung, New Territories ("Lot No.249"). The 1^st and 2^nd defendants are the registered owners as tenants in common of the disputed property, which is an adjacent plot of land. Both plots are in a small New Territories clan village called Wong Yi Chau Village, Sai Kung. This is not disputed.

4. It is the 1^st and 2^nd plaintiffs' claim that both the disputed property and Lot No.249 were purchased by their father, Wong Tak-yip, for $300 from the then owners, sometime in the mid-1940s, shortly after the end of the Second World War. At the time of purchase both lots were built land with separate structures on each lot.

5. It is claimed that there was in existence an informal written document evidencing this purchase, this cannot now be found. The 1^st and 2^nd plaintiffs' mother Wong Chan Loy-tak gave evidence that she had been shown it by Wong Tak-yip during his life time. She is illiterate and only knew of its contents from what he told her. She believed that he kept the document in his possession.

6. In or around 1946, Wong Tak-yip demolished the original separate structures on both plots of land and built one house on the land straddling both plots. The house was rebuilt in 1971 by the 1^st and 2^nd plaintiffs and exists to this date. The living room and bedrooms of the house are physically located on the disputed property, while the kitchen is located on Lot No.249. The house has one address, No.11, Wong Yi Chau Village, Sai Kung, New Territories. This is not disputed.

7. On 14 August 1961, ownership of the disputed property was registered in the names of the 1^st defendant and Wong Kwok-leung, as successors to the previous registered owner, Wong Hip-wing (see: Memorial No.72828). On the Register, the 1^st defendant is shown as trustee for Wong Kwok-leung, who was a minor in 1961. This is not disputed.

8. Wong Kwok-leung died in an industrial accident in 1968 and about three years later, on 27 September 1971, the 2^nd defendant was registered as successor to his half share in the disputed property (see: Memorial No.84717). This is not disputed.

9. In 1971, Wong Tak-yip requested the persons then registered as owners of both plots of land to execute a formal transfer of the land to the 1^st Plaintiff, as his nominee, to record the purchase from their predecessors.

10. On 12 February 1971, Wong Tin-sung, the then registered owner of Lot No.249, executed a transfer in favour of the 1^st Plaintiff for a stated consideration of $2,500, in fact no consideration passed at that time. This is not disputed.

11. Wong Tak-yip died in March 1972 before he could procure the 1^st and 2^nd defendants to execute any transfer of their registered interest in the disputed property in favour of himself, or the 1^st and 2^nd plaintiffs.

12. The 1^st and 2^nd plaintiffs are the only natural born sons of Wong Tak-yip by his second customary (polygamous) wife Wong Chan Loy-tak and the only persons entitled to succeed to his estate and property and have their title to it registered in the New Territories Lands Office, pursuant to s.17 of the New Territories Ordinance, Cap.97. This is not disputed.

13. The 1^st and 2^nd plaintiffs claim that the disputed property belonged to Wong Tak-yip, by purchase, since the mid-1940s and after his death in March 1972, to themselves.

14. The 1^st and 2^nd plaintiffs also claim to have enjoyed uninterrupted possession of the disputed property since at least 1971, when the present house was built. This house has been used by the 1^st and 2^nd plaintiffs as their residence and they have permitted others to use it. This is not disputed.

15. The 1^st defendant has compromised this action. He has been resident in the United Kingdom for a long time and by a statutory declaration made there on 10 September 1997, he acknowledged the title of the 1^st and 2^nd plaintiffs to the disputed property and by an assignment, executed on the same date, he assigned to them whatever interest he may have had in the disputed property.

16. The 2^nd defendant has defended the action.

17. The 2^nd defendant claims title to the disputed property as the adopted son of Wong Yan-ping. Wong Yan-ping was the grandson of Wong Hip-wing, whose name appears first on the New Territories Lands Office register for the disputed property. He says he was adopted when a child of about 8 or 9, by Wong Yan-ping's mother Lee Cheung-kiu and her daughter Wong Oi-tai after the death of Wong Yan-ping, sometime during the Japanese occupation of Hong Kong. The 2^nd defendant agrees no customary formalities attended his adoption, but nevertheless he claims this was a valid customary adoption rendering him Wong Yan-ping's adopted son in the eyes of the community. The formalties were dispensed with in the exigencies of the situation caused by the occupation. He has provided no other evidence to show that his adoption was in accordance with customary law.

18. According to the 2^nd defendant, Wong Kwok-leung was another posthumous adoptive son of Wong Yan-ping, having been adopted by custom by Lee Cheung-kiu's other daughter Wong Kwai-ying. The 1^st defendant is claimed to be a posthumous adopted son of Wong Sam-choi, one of Wong Hip-wing's sons.

19. There is undisputed evidence that the 2^nd defendant lived in the village with his adoptive family from age 9 to age 12, or 13, when he moved away to seek employment. He seems to have lost contact with them until 1971, when he re-appeared as a visitor to the village and registered his claimed interest in the disputed property with the Sai Kung New Territories Lands Office. This was three years after Wong Kwok-leung's death in 1968.

20. Although he claims to have returned from time to time to visit his adoptive aunt, Wong Kwai-ying, she, on her own evidence, moved away from the village before Wong Kwok-leung's death in 1968.

21. The 1961 New Territories Lands Office register for the disputed property shows the 1^st defendant as owner and also as trustee for Wong Kwok-leung. The 2^nd defendant's name does not appear on the register. If he were treated as Wong Yan-ping's adopted son one would expect it to appear. The 2nd defendant's explanation that he could not be found by his aunt, Wong Kwai-ying, in 1961 is unconvincing. Wong Kwai-ying, who gave evidence on his behalf, cannot remember sending anyone to look for him for this purpose. I bear in mind that this old lady now claims to be 95, however her memory in relation to other matters appeared unimpaired by age.

22. Although the register shows the 1^st and 2^nd defendants as joint owners, from the evidence led at trial, it appears to have been practice in the New Territorities - and certainly the practice of the Wong Yi Chau villagers - not to register transfers of land immediately the parties agreed to a transfer of ownership. For example, it is not disputed that the 1^st and 2^nd plaintiffs' father, Wong Tak-yip, purchased Lot No.249 in 1946, but the transfer was only registered in 1971. And in relation to the disputed property, there are no names on the register following Wong Hip-wing's - the second defendant's adoptive great-grandfather - original registration until the registration on 14 August 1961 of the 1st defendant and Wong Kwok-leung's names.

23. The 2^nd defendant's only action indicating his interest in the property is his registration of his claim in September 1971. On his own evidence, he has never resided in the disputed property, or received any rents in respect of it.

24. I find that there is undisputed evidence that the 1^st and 2^nd plaintiffs' family have been in undisputed occupation of the disputed property since 1946. I am therefore satisfied that they could resist any action to recover the disputed property from their possession under s.7 of the Limitation Ordinance.

25. As to the 1st and 2^nd plaintiffs' claim to title to the disputed property by virtue of their father Wong Tak-yip's claimed purchase in 1946; there is no evidence to contradict the claim of purchase. The evidence led at trial shows that 50 years ago land transfers were conducted in an informal way and there is no reason to disbelieve Wong Chan Loy-tak's evidence that her husband Wong Tak-yip showed her a document which evidenced his purchase and that such a document once existed.

26. The evidence shows that Wong Tak-yip was a man of relative means. He was a merchant seaman who had lived away from Hong Kong in the United States of America and had returned to his native village at the end of the war. There was evidence led at trial that in 1946 he bought a shop and its associated business in Sai Kung Town for $8,000. If he had enough money to buy that shop for $8,000, it is reasonable to believe that he would have the money to buy the disputed property for $300. Further, as he appears to have been a prudent man, it is unlikely he would have expended money in building a property straddling the two plots of land without first making sure he had title to both plots.

27. I therefore find for the 1^st and 2^nd plaintiffs in this action and grant them a declaration that, they, as successors in title to Wong Tak-yip and the persons entitled to succeed to his estate and property, are the beneficial owners of the disputed property.

28. In view of that finding it is not necessary for me to make an express declaration that they have acquired title by adverse possession; but, had I not been satisfied in their favour on the issue of their title by succession, I would have found that they have acquired title by adverse possession.

29. The 2^nd defendant will pay the 1^st and 2^nd plaintiffs' costs of this action. Such costs to be taxed by the Registrar on the party and party basis, if not agreed.

Representation:

Ms. Josephine Pinto, inst'd by M/s T. C. Lau & Co., for the 1^st and 2^nd plaintiffs

2^nd defendant in person