Wan Hok Taoist Association v. The Incorporated Owners of Nos. 88-90 Pan Hoi Street and Another

HCA 2384/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2384 OF 2008

________________________

Coram: Deputy High Court Judge Carlson in Court

Date of Hearing: 16 December 2011

Date of Judgment: 16 December 2011

________________________

J U D G M E N T

________________________

1.This is an action by which the plaintiff seeks declarations that is has acquired a squatter’s title to a part of the roof at 88-90 Pan Hoi Street, Quarry Bay, and to 92-94 on the same street. Basically, these are adjoining buildings, and what is sought becomes clear by looking at page 8 of the trial bundle which is a plan of the roof.

2.The case has proceeded in a rather more lengthy way than might be expected of an action which is undefended; firstly, because of the means of possession of the building over the years by the illegal structures that the plaintiff, a religious association, has built on the roof spaces, starting in the case of No. 90-92, in 1969, and the other address in 1974. Possession therefore goes back all this time. 

3.When the matter first came before me, I took the view that there may be a point that should legitimately be referred to the Secretary for Justice to consider whether it would be right to allow an adverse possessor who has taken possession by means of the building of illegal structures to take advantage of that.  The matter was considered with some care it seems to me by counsel in the Department of Justice and the Secretary’s decision is that he does not feel it necessary to intervene in the matter and so I am able to proceed and the case has now been relisted as it had on the previous occasion as an undefended action. 

4.Originally, the defendants, who are the Incorporated Owners of these two addresses, had instructed solicitors, defences had been filed and then the Defendants dispensed with their solicitors.  The individual members of the Incorporated Owners had sought to pursue the action as individuals but then they rather lost interest in it. There was an Unless Order which has not been complied with and so the defences were struck out and the matter has therefore proceeded undefended.

5.I will come back to what is a point of law in a moment but I have received the evidence of Madam Ho who has lived there for very many years, well in excess of the necessary 20 years, and I have also received the evidence of the plaintiff’s solicitor, Mr Yeung, who in the course of his acting for the plaintiff in this matter has taken a very full witness statement from a Mr Wong Siu-bun who sadly was not able to sign his witness statement because he died before he could do so. I have received that statement in evidence as hearsay evidence, the appropriate Hearsay Notice having been served and I am satisfied that I can receive that evidence as evidence of the truth of its contents and I see no reason why I should not give this statement by Mr Wong full weight, really on the basis that this is what Mr Wong had told Mr Yeung who then recorded it in the witness statement which is proffered in evidence. And so I am satisfied that in one case going back to 1969, in the other to 1974, that the plaintiff had taken possession and had taken possession with the necessary intent to exclude the whole world from the rooftop and from where it has since conducted regular religious ceremonies.

6.On what I might term the legal point, I am bound to say that Mr Lee, who appears for the plaintiff, has dealt with the matter very fairly, and if I may also say so, very competently.  He has drawn to my attention authorities that not only support his case but also authorities that may be said to be against him, but I think the law can be stated very shortly, and I am not going to go into this in any great detail because the matter is undefended.  All I am looking to ensure is that the plaintiff on this undefended basis has made out its case 

7.The point here is that if the means of possession of a piece of land or an area - a roof space in this case - is illegal, that will not prevent the possession running adversely, and provided it runs for the requisite period, that would be sufficient to extinguish the legal owner’s title, but on the other hand, where the act of possession itself is illegal, then the policy of the law is to say that the possession and time cannot run against the legal owner.

8.I am satisfied in this case that the former situation applies, which is that although the means of possession may have been illegal because these structures were all illegal, the act of possession itself was not illegal and so Mr Lee has demonstrated that there has been a taking of possession for the requisite period, time is more than enough in these circumstances and that the appropriate animus possidendi has been present throughout and that there is no impediment in terms of public policy given the nature of the possession which would prevent me from saying that the plaintiff is entitled to the orders that it seeks.  The Plaintiff will therefore have the declarations that appear in the prayer to the amended-statement of claim and that it is also entitled to its costs, it having succeeded. As to costs I think this may be a little harsh on the Defendants on the basis that the plaintiff has had a free run for all these years and it may be that having heard what I have just had to say the Plaintiff will not trouble to get reimbursed for its costs, but it is entitled to the order for costs that it seeks.

Lester Lee, instructed by Kenneth C C Man & Co., for the Plaintiff

1st Defendant did not appear and was not represented

2nd Defendant did not appear and was not represented