Shue Huei Yue v. Tan Chung Meng

DCCJ 2294/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2294 OF 2013

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Before: Deputy District Judge J. Chow in Chambers (Open to the public)

Dates of Hearing: 20 June 2014 and 31 July 2014

Date of Judgment: 1 August 2014

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JUDGMENT

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Introduction

1.This is an adverse possession case, the plaintiff applies for declaratory judgment against the defendant.

2.The defendant is the registered owner of Flat B, 8^th Floor, Waldorf Apartments, 382 - 384 King’s Road, Hong Kong (“the Property”). 

The Proceedings

3.The plaintiff commenced this action by way of a writ of summons filed on 24June 2013 for declarations pursuant to section 7 of the Limitation Ordinance (Cap 347). 

4.In the Affirmation of Wan Lai Yee filed on 19 November 2013, in support of applying for an order of substituted service of the writ of summons by the plaintiff, Ms Wan confirmed no record was found in the probate search.

5.An order of substituted service was given on 3 January 2014, On 17 January 2014, the plaintiff served the writ of summons with statement of claim attached on the defendant by placing an advertisement in Sing Tao Daily, a Chinese newspaper circulating in Hong Kong.

6.The defendant did not file an acknowledgment of service and defence.

Service of the Summons

7.On 6 June 2014, the plaintiff took out a summons for declaratory judgment against the defendant (“the Summons”) and was fixed for hearing before me on 20 June 2014.  I was unaware the Summons was served on the defendant by any means.  Mr Wong, counsel for the plaintiff submitted, pursuant to Order 65 rule 9, Rule of the District Court, Cap 336H, service of the Summons on the defendant is unnecessary.  Order 65 rule 9 reads:-

“No service required in certain cases (O 65, r 9):

Where by virtue of these Rules any document is required to be served on any person but it is not required to be served personally or in accordance with Order 10, rule 1(2), and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the court otherwise directs or any of these Rules otherwise provides.”

8.I do not agree.  The plaintiff is seeking a declaration that the defendant’s title in respect of the Property be extinguished and be barred from taking action against the plaintiff to recover it.  Albeit the defendant has disappeared since 1986, I am not satisfied a hearing for obtaining a declaratory judgment can be heard when the defendant has no knowledge of the hearing itself.

9.I draw Mr. Wong’s attention to Law Yuk Cheung v Loa Ku Tai (DCCJ 4 of 2012), the plaintiff in that case made similar application on ground of adverse possession.  The writ of summons, statement of claim and the summons for declaratory judgment have all been served on that defendant by way of substituted service.

10.In revisiting applications by way of summons, Order 32, rule 3 of the Rules of the District Court , Cap 336H reads:-

“3. Service of summons (O 32, r 3):

A summons asking only for the extension or abridgement of any period of time may be served on the day before the day specified in the summons for the hearing thereof but, except as aforesaid and unless the court otherwise orders or any of these Rules otherwise provides, a summons must be served on every other party not less than 2 clear days before the day so specified.” [emphasis added]

11.Apart from that, the Summons for declaratory judgment is taken out pursuant to Order 13, rule 6 of the Rules of District Court, Cap 336H:-

“6. Other claims (O 13, r 6):

(1) Where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.” [emphasis added]

12.The Summons must be brought to the attention of the defendant.  Having considered the above rules, I directed the plaintiff to serve the Summons on the defendant by way of substituted service. 

13.The plaintiff has duly complied with the direction for  substituted service, by placing an advertisement in Sing Tao Daily on 3 July 2014. The defendant did not appear in the adjourned hearing on 31 July 2014.

Amendment of the Statement of Claim

14.Mr Wong relied on the 2^nd Affirmation of Shue Huei Yue filed on 6^th June 2014 as evidence, he submitted the plaintiff was in possession of the keys of the Property at all times. I alerted Mr Wong that this fact was not pleaded in the statement of claim. 

15.I also draw Mr Wong’s attention to the basics of the legal principles. In event of default of defence, it is expressly stated in Order 19 rule 7 of the Rules of District Court, Cap 336H, the court may give judgment as the plaintiff appears entitled to on his statement of claim.  In such application, the court cannot receive any evidence hereunder, but must give judgment according to the pleadings alone and it is not necessary on the hearing of the summons or motion for judgment to prove case by evidence (See commentary at paragraph 19/7/11, Hong Kong Civil Procedure 2014).

16.The power to give a declaratory judgment is discretionary.  It is not the normal practice of the court to make a declaration without a trial.  However, this is only a rule of practice and should only be followed when the plaintiff can obtain the fullest justice to which it is entitled without the declaration he seeks (See commentary at paragraph 19/7/20, the Hong Kong Civil Procedure 2014).

17.I therefore gave direction for the plaintiff to amend his statement of claim.  On 25June 2014, the plaintiff filed an Amended Statement of Claim.

Analysis

18.The plaintiff’s pleaded the following in the Amended Statement of Claim, inter alia, as follows:-

(i)   The defendant and the plaintiff’s mother entered into an oral tenancy agreement on an unknown date in 1974.  The plaintiff’s mother has duly paid rent to the defendant on a monthly basis.

(ii)  Until 1986, the defendant disappeared and had not since then to collect rent from the plaintiff’s mother.  She and the plaintiff continued to reside at the Property.

(iii)  In 1989, the plaintiff was married and had moved out from the Property.  His mother continued to reside in the Property.

(iv) In or about 1999, the plaintiff divorced and moved back to the Property.

(v) The plaintiff’s mother passed away on 27 June 2007, leaving the plaintiff to reside at the Property until the commencement of the action.

(vi) At all material times, the plaintiff’s mother and himself paid all management fees, contribution funds, government rent and rates, electricity, water and gas charges of the Property.

(vii) The plaintiff claimed he has been in uninterrupted and exclusive use, occupation and possession of the Property for a period of about 26 years.

(viii) By reason of this, the defendant is barred from claiming or recovering the Property against the plaintiff pursuant to section 7 of the Limitation Ordinance, Cap 347.

19.In absence of Mr. Wong’s assistance, I apply the principle established in the landmark case on adverse possession, Wong Tak Yue v Kung Kwok Wai (1997 – 98) 1 HKCFAR 55, that the person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. 

20.As further pleaded in the Amended Statement of Claim:-

(i) the plaintiff (and his mother) did not pay rent to the defendant since 1986;

(ii) no attempt was made to renew the tenancy agreement with the defendant; and

(iii) the plaintiff’s personal belongings were being kept and remained in the Property and the plaintiff kept the keys for the Property.

21.I accept the pleaded facts in the Amended Statement of Claim are sufficient to substantiate the plaintiff’s application. Most importantly, the plaintiff was in possession of the keys, the only tool to gain access to the Property at all material times. I am satisfied the plaintiff has both factual possession and requisite intention to possess the Property since 1986, ie for more than 20 years before the commencement of this action.  It is an appropriate case to give declaratory judgment to the plaintiff in attaining fullest justice.

Conclusion

22.In the premises, I make the following orders:-

(i)   A declaration that the defendant’s title in respect of the Property has been extinguished and the defendant is barred from taking action against the plaintiff to recover the Property pursuant to section 7 of the Limitation Ordinance.

(ii)   A declaration that the plaintiff is entitled to enter, retain the use of and possess the Property by reason of adverse possession.

(iii)   A declaration that the plaintiff has acquired a possessory title to the Property and is entitled to be registered as the owner of the Property by virtue of the fact that the defendant’s title to the Property has been extinguished.

23.I make an order nisi that there beno order as to costs of this action, including both hearings on 20June 2014 and 31 July 2014.

24.Lastly, I echo with the observations of the learned judge in Ho Kwai Chun v. Lai Yu (DCCJ 916/2013, 3 July 2014), similarly, the plaintiff in that case applied for declaratory judgment on the ground of adverse possession.

“25. ……. I would have thought in these circumstances the right thing for Ho’s legal advisors to do is to prepare for Ho an open and shut pleaded case and to take only the appropriate and essential steps to obtain judgment on the pleading. In addition, to ensure a favourable outcome, maximum assistance should have been given to this court. A skeleton submission and a simple hearing bundle are merely basic. The latter has not even been provided to this court despite my specific direction. However straightforward this kind of applications may seem to Ho’s legal advisors, this court should not be expected to deal with the matter on a do-it-yourself basis and rubber-stamp this uncontested application without further ado.” [emphasis added]

25.Be it a straightforward application, plaintiff’s legal advisors should not undermine the basic legal principles and it is expected maximum assistance should be provided in the hearing.

Mr Tim Wong, instructed by Mandy Wan & Co, for the plaintiff

The defendant was not represented and did not appear