Lui Ping Hong v. Ten Cuy Con Adames

DCCJ 4955/2017

[2024] HKDC 1736

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4955 OF 2017

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BETWEEN

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JUDGMENT

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Introduction

1.By Inter-Parte Summons dated 14 May 2024 (“the Summons”), the Plaintiff (“P”) applies for default judgment under O 19, r 7 of the Rules of District Court, Cap 336H (“RDC”) against the Defendant (“D”).

2.P’s claim is based on the doctrine of adverse possession. She claims possessory title to the property known as 3/F, No 30 Luen Shing Street, Luen Wo Market, Fanling, New Territories (“the Property”).

Background Facts and Procedural History

3.On 8 November 2017, P issued the Writ of Summons (“the Writ”) against D. According to the Statement of Claim (“SOC”):

(1) D at all material times is the registered owner of the Property;

(2) Since or about 1979, the Property has at all material times been used and occupied by P to the exclusion of others:

(a) D granted a power of attorney in relation to the Property to P’s grandfather from 16 February 1966 to 15 February 1976;

(b) Between 1966 to 1973, P’s grandfather resided in the Property until his return to HeShan, PRC;

(c) P’s grandfather passed away in or about 1976;

(d) On or around 4 June 1979, P came to Hong Kong and since around 1980, lived in the Property until the date of the SOC;

(e) Since or about 1979, P or her agents has been settling all the Government rents and rates, utilities and maintenance costs of the Property;

(3) No consent was ever obtained from or payment (by way of rent, licence fee) made to D or his predecessor in titles or representatives for the use and occupation of the Property by P;

(4) P, whether by herself or her representatives, has for not less than the minimum requisite limitation period had the undisturbed possession of the Property to the exclusion of D and/or his predecessor(s) in title and had openly exercised acts of ownership over the Property;

(5) In the circumstances, P claims:

(a) P has been in adverse possession of the Property for a period in excess of 20 years before the commencement of this action;

(b) D’s right to recover the Property and D’s title have become statute-barred and extinguished under ss 7(2) and 17 of the Limitation Ordinance, Cap 347 (“LO”); and

(c) P has acquired an indefeasible possessory title to the Property.

4.On 2 June 2022, Master June Cheung granted an order of substituted service of the Writ by advertisement of a Chinese notice of these proceedings once in the Singtao Daily News.

5.On 19 June 2024, I granted leave for substituted service of the Summons by advertisement of a Chinese notice of these proceedings once in the Singtao Daily News.

6.I am satisfied from the affirmations of service that substituted service of the Writ and Summons were effected.

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

Non-appearance of D

8.D did not appear at today’s hearing.

9.Mr Ng, counsel, appears on behalf of P.

10.In these circumstances, given that D has never participated in these proceedings notwithstanding service of the Writ and Summons on him, I am of the view that it is expedient to proceed with today’s hearing in D’s absence under O 32, r 5 of RDC.

Applicable principles

11.The applicable principles are well-settled.

12.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.

13.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 relief 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.

14.As for the applicable principles for adverse possession, the three elements were helpfully summarized by Deputy High Court Judge William Wong SC in Lam Clansman 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 including 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; and

(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.

15.Where the plaintiff’s cause of action accrued prior to 1 July 1991, the applicable limitation period is 20 years by virtue of s.38A(2) of LO: see Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 559 at §50.

Analysis and Disposition

16.I am satisfied that there is sufficiently and properly pleaded both factual possession and the requisite intention to possess the Property by P for more than 20 years prior to the commencement of this action. P occupied the Property to the exclusion of others, paid all the expenditures of the Property over the years which demonstrate exclusive possession and the requisite intention to possess.

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

18.I therefore grant default judgment against D and grant the orders in terms of the Summons as amended by me. There should be no order as to costs of this action, including the costs of the Summons.

Mr Ng Hon Fai, Eddie, instructed by Hon & Co for the plaintiff

The defendant was not represented and did not appear