Lam Che v. Foung Sheu Kwun

HCA486/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 486 OF 2010

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Before: Deputy High Court Judge Carlson in Court

Date of Hearing: 2 August 2010

Date of Judgment: 2 August 2010

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J U D G M E N T

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1.This is in many ways a rather unusual case. The plaintiff and her husband were tenants of the defendant under an oral tenancy which started in 1973 at a monthly rental of $600 a month in respect of these premises at the 1st Floor of 107 Ma Tau Kok Road in Kowloon. And for the first 11 years or so, everything went as expected, by which I mean that the defendant, the owner of the flat, Madam Foung, would attend on the premises at the beginning of each month and collect the rent and she would be paid in cash. And then for some unexplained reason, in about July or August 1984, she stopped going to the premises.

2.For the first few months, I assume the plaintiff and her family did not perhaps think too much of that on the basis that Madam Foung had gone away on holiday or was ill or something of that so perhaps no great significance is to be attached to the first four or five months.  The fact is that she has never appeared and this has now gone on for the past 25 and a half years as it now is.

3.The rule is that you should, if you are a tenant or if you are a debtor, seek out your creditor and look for him and pay him what you owe him, and there is evidence that this was done by the plaintiff and her family because they had been told by the landlady, Madam Foung, that she lived in Butterfly Valley in Kowloon and so they went there to look for her, but they could not find her and in fact the address or the building where she had told them she lived had been demolished.  Well, more recently, another property of Madam Foung has come to light, close to this court here, in O’Brien Road and that is where a copy of the writ in this action was sent, but this has not produced any appearance by Madam Foung.

4.Well, as the years went by, the plaintiff and her family remained in the premises and started paying the rates and the other fees which related to the flat, and in fact the plaintiff joined the owners’ management committee of the building because the true owner, the landlady, had disappeared.  And she and her family have, I am satisfied, treated this property as their own.  For a plea of adverse possession to succeed, one needs to have both the physical element of exclusive occupation but also the mental element as well of seeking to exclude the whole world, including the true owner, and I am satisfied that as the years have gone by that this is precisely what has happened in this case.  And what needs to be shown is a continuous period of adverse possession of at least 20 years, and I have absolutely no doubt that in the absence of anything done or said or any appearance by the defendant that the plaintiff has shown far more than 20 years. I need to take a starting date, I am satisfied that as from 1 January 1985 that she and her family have been in continuous adverse possession of these premises.

5.Now, it is a very big thing indeed to oust the title of the paper owner and I have been anxious to ensure that all reasonable steps have been taken to see to it that these proceedings or notice of these proceedings has been brought to the defendant’s attention.  That can be quite a difficult thing to achieve where someone has disappeared for so many years and, in this case, there is no sign of any relative coming forward, and so I was left with the situation where the only thing that I could reasonably do was to direct that the proceedings be advertised in a Hong Kong newspaper, which is what has happened.

6.Fortunately, on this occasion, the matter appears to have captured the interest of the press in general, and I have seen that quite a lot has been written about this case, and so the action itself has received far greater coverage than one would normally expect and so that is rather fortunate.

7.In the absence of any appearance today by the defendant and having regard to the evidence which has persuaded me that there has been adverse possession as understood by the law for a period, in my judgment, of some 25 years, the plaintiff is entitled to a declaration that the defendant’s title to this property is now extinguished by virtue of section 17 of the Limitation Ordinance, Cap.347.  I also grant a declaration that the plaintiff from now on is the owner in possession of this property.

Victor Chiu, instructed by Messrs Cheung & Liu, for the Plaintiff

The Defendant did not appear and was not represented