Chan Kam Wing v. The Personal Representatives of the Estate of Lam Pui Chun Jeanie, Deceased

DCMP 120/2023

[2024] HKDC 2133

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 120 OF 2023

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REASONS FOR DECISION

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A.  The Plaintiff’s Claim and the Court’s Orders

1.The hearing concerned the Originating Summons dated 9 January 2023 as amended on 28 June 2023 (“Amended OS”), by which the Plaintiff claims against the Defendant (the “Estate” of the “Deceased”) for declaratory relief that, inter alia, he has acquired a possessory title in respect of No 4 of the 8^th Floor of Welland Building (“Property”) by adverse possession pursuant to sections 7 and 17 of the Limitation Ordinance (Cap 347) (“Ordinance”).

2.Prior to the hearing:

(1)  On 27 December 2023, upon on the joint application of the Plaintiff and the Official Solicitor, Master appointed the Official Solicitor to represent the Estate to the limited extent of accepting service of the Originating Summons. The Amended OS was served on the Official Solicitor. The Plaintiff informed the Court that although the Official Solicitor acknowledged receipt of the Amended OS on 8 February 2024, no acknowledgment of service was filed.

(2)  On 8 March 2024, upon the Plaintiff’s application by ex parte summons, Master granted leave for the Plaintiff to proceed with the proceedings herein in the absence of a person representing the Estate, and that any judgment or order subsequently given or made in these proceedings shall bind the Estate to the same extent as it would have bound the personal representative of the same.

3.I accepted the Plaintiff’s submission that, as no acknowledgement of service has been filed by the Official Solicitor on behalf of the Defendant, the Plaintiff was not required to serve the notice of hearing on the Defendant under Order 28, rule 3(5)(a) of the Rules of the District Court (Cap 366H): Universal Corporation (Color & Chemical) Ltd v The Personal Representatives of Leung Shu Ming (HCMP 733/2013, 8.1.2014) at §§1, 3-4 (Au-Yeung J).

4.Upon hearing Counsel for the Plaintiff at the hearing, I made the following orders:

(1)  There be a declaration that:

(i)  The Defendant has, by virtue section 7(2) of the Ordinance, lost his rights (if any) to bring any action to recover his share or interest in the Property;

(ii)  The title, interest and/or rights of the Defendant or its predecessor in title in and/or over the Property has been absolutely extinguished by virtue of section 17 of the Ordinance prior to the commencement of this present action; and

(iii)  The Plaintiff has, by reason of being in adverse possession of the Property for a period of no less than 12 years before the commencement of the present action, acquired good possessory title, interest and/or rights on and/or over the Property and is entitled to the right to the sole and exclusive physical occupation of and in the same.

(2)  There be no order as to costs.

5.I set out the reasons for my decision below.

B.  Factual Background

6.According to the Plaintiff’s Affirmation in support of the Amended OS, which is uncontroverted, the facts leading to the present claim are as follows.

7.The Deceased was married to Mr Chan Kwan Wing (“Mr Chan”), the elder brother of the Plaintiff, on 27 August 1965. The couple had a son, who passed away at the age of 10 in 1977.

8.The Deceased became the sole registered owner of the Property on 28 September 1985.

9.The Deceased passed away on 7 August 1995. Mr Chan was granted Letters of Administration for the Estate on 7 May 1997. However, Mr Chan never transferred the Property to himself.

10.Following the Deceased’s death, Mr Chan lived in and operated his trading business in the Property, until his own death on 25 June 2004. During Mr Chan’s lifetime, the Plaintiff held a set of keys to the Property so that he could help with Mr Chan’s business.

11.Mr Chan did not leave any will, and no application has been made for the administration of his estate. As a result, both estates are unadministered, with the Property remaining registered in the name of the Deceased.

12.Following Mr Chan’s death, the Plaintiff began to manage and control the Property exclusively:

(1)  He visited the Property approximately two to three times a week to tidy up, check the letterbox and maintained the Property.

(2)  From 2004 to 2007, he allowed his daughter to conduct private tutorial classes at the Property.

(3)  In May 2007, the Plaintiff set up his employment agency business at the Property and used the same for business purposes until July 2019.

(4)  He has been responsible for paying the water and electricity bills, government rates and management fees of the Property since 2008.

(5)  After ceasing his business operations in 2019, the Plaintiff used the Property as his storage space, and moved into the Property in around August 2021.

13.Since 2004, the Plaintiff have never paid any rent or consideration to the Estate or anyone for his possession, use or occupation of the Property, and has never entered into any licence, tenancy or agreement with the Estate or anyone for such purpose.

C.  Adverse Possession

14.It is for the Plaintiff to prove the two essential elements of adverse possession, namely factual possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & Another (No. 2) (1997-98) 1 HKCFAR 55 at 68E (Li CJ).

15.On the aforesaid evidence, I am satisfied that the Plaintiff has had a sufficient degree of exclusive physical control over the Property. Factual possession is established.

16.While the Plaintiff initially entered the Property with Mr Chan’s permission as licensee, such licence was automatically terminated upon Mr Chan’s death in 2004: Megarry & Wade: The Law of Real Property (10^th ed, 2024) at §33-03; Ho Hang-Wan v Ma Ting-Cheung as Personal Representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649 at 652A-E (Hunter JA).

17.There could not have been any further grant of licence to the Plaintiff after Mr Chan’s death as Mr Chan’s estate was unrepresented.

18.I am satisfied that the Plaintiff manifested the requisite intention to possess the Property in exercising his control over the same as stated above.

D.  Declaratory Relief

19.I am satisfied that this is a case where the rule of practice not to grant a declaration without a trial should give way to the Court’s paramount duty to do fullest justice to the Plaintiff to which he is entitled and that the Plaintiff has a genuine need for declaratory relief: Wong Wing Yiu v Bell Investment Co Ltd (HCMP 1606/2016, 28.2.2017) at §17, citing Law Yuk Fong v Man Chung Wai (HCA 2195/2015, 16.1.2017) at §§13-20.

20.I therefore granted the relief as set out in §4 above.

Mr Jeff Yau, instructed by K T Lo & Co, for the plaintiff

The defendant was not represented and absent