Cham Shui Ying v. Chan Nam Ping

HCMP005118/2000

HCMP 5118/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5118 OF 2000

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Coram: Deputy High Court Judge Gill in Court

Date of Hearing: 11 April 2001

Date of Judgment: 11 April 2001

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J U D G M E N T

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1. This is an application brought by originating summons in which the plaintiff seeks declarations that the defendant's title to a parcel of land more particularly described therein (which I shall call, shortly, R.P. section 54 of Lot 443 in DD No. 51, and hereafter "the Land") has been extinguished and the plaintiff has established a possessory title to the Land.

2. The plaintiff filed an affidavit in support and I now revert to that for the history.

3. In 1970 she and 6 other members of her family took possession of the Land. They did so without the consent of the defendant, then as now the registered proprietor. They were, in effect, trespassers. In 1970 the plaintiff and her father, one of the family members, built certain structures on the Land which when complete they occupied as a family home, and it has been so utilised ever since. From 1972 electricity and water accounts submitted for electricity and water used on the Land were charged to the plaintiff's father. In the same way, rates were charged to the plaintiff's father. In or about 1990, upon application, the name of the owner occupier of the Land for the purpose of meeting the rates and utilities was changed to the plaintiff.

4. According to Land Registry records, the defendant took title to the Land in 1920. His last known address was recorded as being an address in Shanghai. All attempts to locate him have proved fruitless. Service of these proceedings has been by substituted service.

5. The plaintiff and her family having been in continuous adverse possession of the Land for at least 30 years now seek the declarations applied for by virtue of sections 7(2) and 17 of the Limitations Ordinance, Cap.347 (LO). Section 7(2) LO states as to the relevant part:-

"No action shall be brought by any ... person to recover any land after the expiration of [20] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person ..."

and section 17 LO states as to the relevant part:-

"... at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land ... the title of that person to the land shall be extinguished."

Section 8(1) LO states as to the relevant part:-

"Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance."

6. This matter can be shortly stated. On the evidence I am satisfied that the plaintiff has been in possession of the Land with the intention to possess the land to the exclusion of the whole world including the defendant since 1970. The time by which the defendant could have brought an action to recover the Land has long since expired.

7. In the circumstances, the plaintiff has proved her case and shall have the declarations at clauses 1 and 2 of the originating summons. There is no point in any order for costs and I make no order for costs.

Representation:

Ms M Wong, instructed by Messrs Wong Hui & Co., for the plaintiff

The defendant in person absent