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HCMP 3225/2014
[2018] HKCFI 1732
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 3225 OF 2014
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IN THE MATTER of the property known as ALL THOSE pieces or parcels of ground registered in the Tsuen Wan New Territories Land Registry as THE REMAINING PORTION OF SECTION A OF LOT NO.1177 IN DEMARCATION DISTRICT NO.453 AND LOT NO.1205 IN DEMARCATION DISTRICT NO.453 TOGETHER with the messuages erections and buildings erected thereon (if any)(the “Properties”)
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and
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IN THE MATTER of a Mortgage dated 19 April 1997 registered in the Tsuen Wan New Territories Land Registry by Memorial No.1134913 (the “1st Mortgage”)
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and
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IN THE MATTER of a Guarantee dated 19 April 1997 executed by Leung Tak Cheung in favour of Liu Chong Hing Bank (now known as Chong Hing Bank Limited (the “1st Guarantee”)
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and
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IN THE MATTER of a Legal Charge dated 20 October 2004 registered in the Islands New Territories Land Registry by Memorial No.341313 (the “2nd Mortgage”)
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and
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IN THE MATTER of a Deed of Personal Guarantee dated 7 September 2004 executed by Leung Tak Cheung in favour of Liu Chong Hing Bank Limited (now known as Chong Hing Bank Limited (the “2nd Guarantee”)
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and
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IN THE MATTER of a Mortgage dated 8 May 1980 registered at the Land Office by Memorial No.1872944 as varied by a Deed of Variation and Further Charge dated 13 April 1994 registered at the Land Registry by Memorial No.5986723 (the “3rd Mortgage”)
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and
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IN THE MATTER of Order 88 of the Rules of the High Court, Chapter 4A
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BETWEEN
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CHONG HING BANK LIMITED
(formerly known as LIU CHONG HING BANK LIMITED) |
Plaintiff |
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and
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FAIRVIEW CITY LIMITED
(麗景城有限公司) |
1st Defendant |
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LEUNG TAK CHEUNG (梁德將) |
2nd Defendant |
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WAN SAU KUEN (尹秀娟) |
3rd Defendant |
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FOO YIU CONSTRUCTION & INVESTMENTS LIMITED
(富裕營造投資有限公司) |
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WONG SOK FUN |
5th Defendant |
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TANG YEE WAN |
6th Defendant |
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Before: Hon Lok J in Court
Date of Hearing: 31 October 2017
Date of Judgment: 25 July 2018
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JUDGMENT
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1. This is a mortgagee action. The mortgagors and the guarantors do not defend the claim. However, the 5th and 6th Defendants intervene in the proceedings and claim adverse possession of the lands they allegedly occupy as squatters. Hence, the issue before the court is whether these Defendants can successfully establish the claims for adverse possession against the Plaintiff, being the mortgagee, who derives possessory title from the other Defendants who are the mortgagors.
Background
2. On 11 December 2014, the Plaintiff issued the present mortgagee action by way of an originating summons against the mortgagors and guarantors, being the 1st to 4th Defendants, in respect of mortgage loans made on 8 May 1980, 19 April 1997 and 20 October 2004 and sought monetary judgments and possession orders against them.
3. The mortgaged properties in issue are known as Lot No 1177A RP and Lot No 1205 which are situated in Demarcation District No 453 (“the Subject Lands”).
4. On 22 September 2015, Master Lai granted monetary judgment against the 1st to 4th Defendants in the total sum of more than $234 million together with interest.
5. By reason of the intervention of the 5th and 6th Defendants, Master Lai, on 16 November 2015, allowed them to be joined as parties in the present proceedings and adjourned the application for possession order in respect of the Subject Lands for argument.
6. In the subsequent affirmations filed by the 5th and 6th Defendants on 10 February 2017, they also claim for easement rights associated with their alleged possessory titles.
7. 4 joint survey plans (“the Survey Plans”) were filed with the court for the purpose of identifying the lands which are the subjects for the adverse possession claims. The area claimed to be occupied by the 5th Defendant is coloured green (“the Green Area”), whereas the area claimed to be occupied by the 6th Defendant is coloured orange (“the Orange Area”). The access road to the Green Area is coloured blue and brown, and the access road to the Orange Area is coloured blue and violet. In other words, the “blue area” is the common access road to both the Green and Orange Areas.
8. On 28 April 2017, Master Lai made a possession order against the 1st Defendant for the uncontested areas inside the Subject Lands. For the contested areas, the Master adjourned the application for possession order to be heard by a Judge.
9. Adverse possession claims are usually fact-sensitive ones. However, in the direction hearing before me on 13 July 2017, Mr Chan, counsel for the Plaintiff, told the court that his client is not going to dispute the facts put forward by the 5th and 6th Defendants in their affirmations, and the dispute would be one on law only. Hence, instead of ordering the case to be continued as if the same had been commenced by writ, I adjourned the case for substantive argument before me on 31 October 2017.
The case of the 5th Defendant
10. According to the 5th Defendant, her father known as “黃春” (“D5’s Father”) was born in 1933 and passed away in May 2002.
11. D5’s Father had 5 children with his wife (“D5’s Mother”) including the 5th Defendant. D5’s Mother passed away in 2015.
12. Since 1970’s, or no later than 1 April 1979 (which was the first business registration date of the iron works business), D5’s Father had been carrying on a business of iron works at a piece of abandoned land (“the Iron Works Business Land”) in Chung Kuk Terrace (松菊台), Fu Yung Shan(芙蓉山), New Territories. At that time, D5’s Father together with one partner known as “簡康” (“Uncle Kan”) jointly occupied the Iron Works Business Land, which was on a slope of about 5,000 to 6,000 square feet in area. They levelled the land with cement and built thereon a metal hut, later marked as “RTW/4A-168” (“the Iron Works Business Hut”), and a small house (“the Small House”), and used the remaining area as a workplace for storing iron materials and machines and doing business.
13. Apart from carrying on the business in the Iron Works Business Land, D5’s Father also resided in the Small House.
14. In 1984, the 5th Defendant’s elder brother (“D5’s Brother”), who was born in the Mainland, moved therefrom to Hong Kong to assist D5’s Father with his iron works business. Since then, both D5’s Father and D5’s Brother resided in the Small House.
15. The Iron Works Business Land had been enclosed with fences no later than 1984.
16. In 1989, the 5th Defendant together D5’s Mother and the 5th Defendant’s younger siblings also moved from Macau to Hong Kong. Thereafter, D5’s Father erected on the Iron Works Business Land an additional small house for himself and D5’s Mother, whilst the 5th Defendant and her siblings resided at the Small House. The remaining area of the land continued to be used as the workplace for the iron works business.
17. In about 1994, D5’s Father built on the Iron Works Business Land another two-storey metal hut, of which the ground floor was used as kitchen and toilet and the upper floor as bedroom for the 5th Defendant and her siblings.
18. It is the 5th Defendant’s case that the paper owner had been dispossessed of the Iron Works Business Land no later than 1 April 1979, and D5’s Father and Uncle Kan had been in joint and continuous possession of the said piece of land ever since.
19. In 2008 or 2009, the 5th Defendant and Uncle Kan reached an agreement (“the Division Agreement”) to divide the Iron Works Business Land into 2 parts, under which the 5th Defendant was given possession of the Green Area. Thereafter, the 5th Defendant erected additional fences along the dividing line between the Green Area and the other areas of the Iron Works Business Land including that occupied by Uncle Kan.
20. The 5th Defendant claims that she is a successive squatter of the Green Area which entitles her to make a claim of adverse possession for such piece of land against the paper owner or other party deriving title from him.
The case of the 6th Defendant
21. The 6th Defendant claims adverse possession in a different manner. When the 6th Defendant was born in 1970, her family had been residing at Chung Kuk Terrance in Fu Yung Shan. The 6th Defendant’s grandparents as well as his paternal uncles and aunts were also residing in the vicinity.
22. At that time, whilst the house of the 6th Defendant’s family was built on government land, her uncle, “鄧文正” (“Uncle Tang”), and his wife were residing at a metal hut, later marked as “RTW/4A/124A” (“the Metal Hut”), built by Uncle Tang on a piece of private land. Since 1970’s, Uncle Tang had enclosed the Metal Hut together with the garden and some outdoor space with fences. All these places are marked as the “Orange Area” in the Joint Survey Plan.
23. It is the 6th Defendant’s case that the paper owner had been dispossessed of the Orange Area since 1970’s, and Uncle Tang had been in continuous possession of the said piece of land ever since.
24. In about 2001 or 2002, Uncle Tang as the “landlord” let the Metal Hut to the 6th Defendant as her residence. By the written agreement dated 6 June 2011 (“the Sale Agreement”), Uncle Tang sold the Metal Hut to the 6th Defendant in the amount of $210,000 and she had occupied the Orange Area as “owner” ever since.
25. The 6th Defendant claims that she is a successive squatter of the Orange Area which entitles her to make a claim of adverse possession for such piece of land against the paper owner or other party...
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