Cheung Pak Cheong and Another v. Tong Keng Alias Tong Keng Sum
Read the full judgment text of DCMP 1706/2012 on BabelCite. This District Court judgment was delivered on 31 December 2012.
1. This is the trial of the plaintiffs’ claim for adverse possession of the landed property known as Factory E, 20 th Floor, Block 3, Golden Dragon Industrial Centre, Nos 172-180, Tai Lin Pai Road, Kwai Chung, New Territories (“the property”) for a period exceeding 12 years prior to the commencement of this action.
Cited by 2 cases
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DCMP 1706/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 1706 OF 2012 --------------------------------
--------------------------- JUDGMENT --------------------------- 1.This is the trial of the plaintiffs’ claim for adverse possession of the landed property known as Factory E, 20th Floor, Block 3, Golden Dragon Industrial Centre, Nos 172-180, Tai Lin Pai Road, Kwai Chung, New Territories (“the property”) for a period exceeding 12 years prior to the commencement of this action. 2.The defendant did not attend today’s trial and he all along fails to response the present proceedings, such as filing the acknowledgement of service in Form No.15. 3.The originating summons and the relevant supporting affirmation were served upon the defendant on 20 July 2012 by inserting the same through the letterbox of his last known address. 4.The 2nd plaintiff explained in her testimony at the trial that she was told by the defendant about the defendant’s last-known address which was purchased by him in about 1990 or 1991. She was also invited by the defendant to visit such address. 5.On 29 August 2012, the court directed the plaintiffs to apply for service of the originating summons by way of substituted service. Pursuant to the order of Master D Ho dated 2 November 2012, substituted service of the originating summons shall be effected by inserting an advertisement of a Chinese notice of these proceedings once in a local Chinese newspaper. 6.On 7 November 2012, the order for substituted service of the originating summons was duly complied with and an affirmation of service was filed by the plaintiffs on 12 November 2012. 7.In the circumstances, I am satisfied that the service of the originating summons was duly made. 8.Thereafter, the defendant did not make any response. 9.On 26 November 2012, the court set down this case for trial on 31 December 2012, so that the plaintiffs can prove the case. 10.The plaintiffs have two witnesses, namely themselves, to give evidence at the trial. At the trial, they both adopt their respective affirmations in support of this application filed earlier as part of their evidence in chief. 11.Mr Wong, counsel for the plaintiffs, put some questions to the plaintiffs and I also asked the plaintiffs some of the questions for clarification, and Mr Wong did a very short re-examination afterwards. The plaintiffs’ case 12.As evidenced by the assignment dated 5 April 1979, the defendant purchased the property at the consideration of HK$246,500. Although the defendant paid for the whole consideration, he registered himself and a Ms Cheung Kwok Mei as joint owners of the property in joint tenancy. 13.In 1979, the 1st plaintiff and the defendant commenced business of manufacturing metal products by way of a partnership called “Luen Fat Metal Products Factory” at the property (“Luen Fat”). 14.According to the 1st plaintiff’s affirmation, he decided to purchase 50 per cent interests in the property in 1980. 15.Upon discussion with the defendant, the 1st plaintiff purchased the 50 per cent interest from the said Miss Cheung Kwok Mei at a price of HK$185,000. 16.However, the 1st plaintiff was not registered himself as the new co-owner. Instead, the 1st plaintiff’s wife, namely the 2nd plaintiff, became the new co-owner because the 2nd plaintiff wished to hold more family assets under her own name. 17.The aforesaid transaction was duly effected by the assignment dated 24 October 1980. 18.The 2nd plaintiff and the defendant were and still are the registered owners of the property in tenant in common as of today, as shown in the land search record. 19.In 1983, the defendant decided to withdraw from the partnership of Luen Fat. 20.By a letter dated 19 December 1983 sent by the defendant’s then-solicitors, Messrs Ho & Wong, to the 1st plaintiff, the defendant offered to sell his shares in Luen Fat to the 1st plaintiff at the consideration of HK$90,000 and the defendant also offered to sell his shares in the property at HK$100,000. 21.According to the evidence of the 2nd plaintiff given at the trial, she said she did pay some money to the defendant for purchase of his shares in Luen Fat, but not HK$90,000. The exact amount cannot be recalled. 22.Subsequently, another law firm was engaged by her to complete the sale of the shares transaction and, accordingly, the partnership of Luen Fat was changed into a sole proprietorship in the name of the 1st plaintiff in the Business Registry. 23.Then, the 1st plaintiff ran Luen Fat on his own account as a sole trader at the property. 24.The 2nd plaintiff and the defendant as landlord entered into a lease agreement of a two years’ term with the 1st plaintiff as tenant dated 16 April 1984, whereby the 1st plaintiff did pay rent in the sum of HK$2,800 per month for using of the property. 25.In fact, the 1st plaintiff only paid HK$1,400 to the defendant for use of the property every month, since the 2nd plaintiff is the wife of the 1st plaintiff, who is holding the 50 per cent ownership of the property as tenant-in-common. 26.The said lease agreement expired in 1986, but the 1st plaintiff kept on using the property and paying the same rent until November 1998. 27.Since then, the 1st plaintiff paid nothing. The last rent payment was made on or about 4 January 1999 in the sum of HK$4,200 in respect of the rental for the months of September, October and November 1998. 28.For the purpose of these proceedings, the plaintiffs agreed to adopt January 1999 as the starting time to run under the Limitation Ordinance. 29.The 2nd plaintiff and the defendant met in early 1990 at a Chinese restaurant to discuss the outstanding rent issue and have a casual chat. 30.The 2nd plaintiff at such meeting told the defendant that the 1st plaintiff would not pay rent as the plaintiffs had already regarded the property as being owned by them. 31.After this meeting, the plaintiffs said they were given to understand that the defendant had actually abandoned the property with his carefree attitude. 32.This is also the last occasion that the defendant was successfully contacted. The plaintiffs also said in their affirmation that they had tried to contact the defendant, but in vain. The defendant’s mobile phone was found out of service. 33.The plaintiffs kept on using the property exclusively as their own property from January 1999, without paying any rent to the defendant up till now. 34.Various documentary exhibits, such as business registration, management fee and utility charges receipts, were produced to show they are using the property all along. 35.The plaintiffs also said in their affirmation that no people were allowed to access the property since early 1999. 36.At the trial, they further testified that the 2nd plaintiff has all along been in possession of all the relevant title deeds of the property and only the two plaintiffs have the keys of the property. 37.On the other hand, the defendant never asked the plaintiffs for outstanding rent, possession of the property, return of those title deeds or keys. 38.Upon the expiry of the said lease agreement in 1986, the defendant did not even demand an increase of rent, even though the Hong Kong property market was once growing upward. 39.Further, the defendant did not claim rent from 1999 or take any action to recover the land so far. 40.The plaintiffs testified at the trial that the defendant had not enter into the property for whatever purpose since 1984, after the sale of his shares in Luen Fat to the 1st plaintiff. 41.Mr Wong, counsel for the plaintiffs, submitted that the evidence sufficiently showed that the defendant did take a carefree attitude towards the property and had abandoned the property since January 1999. 42.Mr Wong also submitted that, taking advantage of the defendant’s abandonment, the plaintiffs regarded and did use the property as their own sensibly. The law on adverse possession 43.Under section 7(2) of the Limitation Ordinance,
44.Under section 13(1) thereof,
45.Under section 17 thereof,
46.Mr Wong, counsel for the plaintiffs, also rightly cited me the most relevant authority in this area, namely the CFA case in IO of San Po Kong Mansion v Shine Empire Limited. The principle of adverse possession set out by CFA is as follows:
47.Besides, Mr Wong also submitted that if a tenant used a land with the permission of the landlord, the tenant must not have the requisite animus possidendi unless he deliberately defaulted in paying rent and treated the concerned property as his own. 48.However, if the tenant does any act to acknowledge the title of the land, such as resuming to pay rent again, the landlord’s right to recover the land shall be deemed to have accrued on the date of such acknowledgement. 49.Mr Wong also quoted me a passage from the judgment of DHCJ To (as he then was), in Tsang Wing Kit v The Occupiers, as follows:
Discussion 50.In the present case, the defendant did not appear at the trial. I accept that the plaintiffs are both credible witnesses who have shown both factual possession and the requisite intention to possess. 51.Based on the evidence given by the plaintiffs, I find the plaintiffs did not acknowledge the title of the defendant after January 1999. 52.By that time, I accept that there was no tenancy whatsoever because the 2nd plaintiff expressed her intention not to pay rent to the defendant and also to exclude the defendant from use of the property at the meeting in early 1999. The fact that the plaintiffs possessed all the relevant title deeds and keys of the property at all material times support the requisite intention to possess. 53.Mr Wong reminded the court that the 2nd plaintiff was and still is a co-owner of the property as tenant in common. Under the common law, a co-owner enjoys unity of possession. The 2nd plaintiff is entitled to use any part of the property as qua a co-owner. 54.He submitted that the law does not prevent the 2nd plaintiff from adversely possessing the property against the defendant. 55.I also agree with his submission. 56.First of all, the Limitation Ordinance does not exclude adverse possession among co-owners. Therefore, whenever a co-owner has the necessary physical control over the concerned property with the animus possidendi to the exclusion of the whole world, including the other co-owners, the principles of adverse possession is equally applicable to extinguish all titles of the other co-owners. 57.Secondly, paragraph 250.849 of Halsbury’s Laws of Hong Kong, volume 16, which, inter alia, stated as follows:
58.As said before, the plaintiffs, including the 2nd plaintiff, had already proved they have such requisite intention to possess the property to the exclusion of the defendant. 59.Therefore, I accept that the 2nd plaintiff is also entitled to make this claim of adverse possession against the defendant. Conclusion 60.In the circumstances, I now make an order in terms of paragraph 1, 2 and 3 of the prayer of the originating summons filed herein on 19 July 2012. 61.Mr Wong, counsel for the plaintiffs, confirmed that the plaintiffs are not asking for costs. 62.Hence, I make no order as to costs of these proceedings.
Mr Paul Wong, instructed by Katherine Y W Or & Co, for the 1st and 2nd plaintiffs The defendant was not represented and did not appear | |||||||||||||||||||||||||
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