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[2018] HKDC 1437
DCMP 1213/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 1213 OF 2014
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IN THE MATTER of Order 113 of the Rules of the District Court, Cap 336H of the Laws of Hong Kong |
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and |
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IN THE MATTER of ALL THAT piece or parcel of ground situate lying and being at Yuen Long, New Territories and registered in the Land Registry as Lot No. 881 in Demarcation District No.102 |
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BETWEEN
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Man Lin Heung
The Administratrix of the Estate of Man Kwai Yin
also Known as Man Kwai Yin
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Plaintiff |
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and |
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梁根林 |
1st Defendant |
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ALL OTHER OCCUPIERS of ALL THAT piece or parcel of ground situate lying and being at Yuen Long, New Territories and registered in the Land Registry as Lot No. 881 in Demarcation District No.102 |
2nd Defendant |
[2018] HKDC 1438
DCMP 1214/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 1214 OF 2014
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IN THE MATTER of Order 113 of the Rules of the District Court, Cap 336H of the Laws of Hong Kong
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and |
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IN THE MATTER of ALL THAT piece or parcel of ground situate lying and being at Yuen Long, New Territories and registered in the Land Registry as Lot No. 1007 and 1008 in Demarcation District No.102 |
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BETWEEN
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Man Tin Fook
also known as Man Tim Fook, Deceased,
as represented by Man May Yung
under O.15 r.15 RDC
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Plaintiff |
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and |
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梁根林 |
1st Defendant |
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ALL OTHER OCCUPIERS of ALL THAT piece or parcel of ground situate lying and being at Yuen Long, New Territories and registered in the Land Registry as Lot No. 1007 and 1008 in Demarcation District No.102 |
2nd Defendant |
| Coram: |
His Honour Judge KW WONG in Court |
| Date of Hearing: |
5-7, 10, 11 April 2017 |
| Date of Closing Submissions: |
16 May 2017
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| Date of Judgment: |
21 November 2018
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J U D G M E N T
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1. The Plaintiffs in these actions, being the registered owners of certain pieces of land in the New Territories, sue the Defendants for vacant possession of the land. The 1st Defendant in both actions counterclaims on the ground of adverse possession.
Brief Background
2. The father of the Plaintiff in DCMP 1213/2014, one Mr Man Kwai Yin became the registered owner of Lot No. 881 in D.D. 102 in Yuen Long by a conveyance on sale dated 22 October 1952. The Plaintiff became the registered owner of the said lot by Letters of Administration dated 23 July 2010 after Mr Man passed away on 15 January 1986[1]. For easy reference, the Plaintiff, the land in question and the action are referred to as “1st Plaintiff”, “1st Lot” and “1st Action” below.
3. The Plaintiff in DCMP1214/2014 was Mr Man Tin Fook. He was the registered owner of Lot Nos.1007 and 1008 both in D.D. 102 situated in Yuen Long at all material times[2]. After the issue of the proceedings, he passed away in Belgium[3]. By an order dated 3 February 2015, Master Yip granted leave to Madam Man May Yung (“MY Man”), the deceased’s sister, to represent the Plaintiff’s estate under O.15 r.15 RDC for the purpose of the proceedings. For easy reference below, the Plaintiff, the 2 land lots in the order described above and the action will be referred to as “the 2nd Plaintiff”, “2nd Lot”, “3rd Lot” and “the 2nd Action” respectively.
4. The Plaintiffs in both actions originally sued for possession under O.113 of the RDC by issue of 2 separate Originating Summonses. They both claim that without their consent or licence, unknown persons wrongfully entered into and took possession of the said 3 lots of land. The same Mr Leung Kan Lam (梁根林) applied to join in as 1st Defendant in both Actions (“Defendant”). He claims to be entitled to occupy a total of 18 lots of land[4] (including the 1st, 2nd and 3rd Lots which are collectively referred to as “the said 3 Lots”) on ground of adverse possession. The 18 lots are collectively referred to as “the 18 Lots” below.
5. Each set of proceedings was later directed to be converted to a writ action. At the pre-trial review on 6 February 2017, Deputy District Judge SH Lee directed the 2 Action be tried together.
The Plaintiffs’ Case
6. The 1st Plaintiff pleaded that between April and July 2013, the Defendant entered upon the 1st Lot or a portion thereof and took possession by erecting a fence on the 1st Lot.
7. The 2nd Plaintiff’s pleaded case is that on a date unknown to the 2nd Plaintiff, the Defendant entered upon the 2nd and 3rd Lots or a portion thereof and took possession by erecting a fence on the Lots.
8. They ask for vacant possession, damages, demolition of the structures erected on the Lots concerned and injunctions to be granted against, inter alia, the Defendant.
9. It has been pleaded the annual rateable value of each of the 3 Lots does not exceed the sum of $240,000. The Defendant initially did not admit the same. It is no longer an issue now. By a joint letter dated 9 November 2018 signed by the parties’ legal representatives, it has been agreed that each lot is with a rateable value not exceeding $240,000.
10. The Plaintiff in each Action claims against the Defendant for mense profit at a nominal rate. For the 1st Action the 1st Plaintiff asks for $100 per annum. For the 2nd Action, the 2nd Plaintiff asks for $50 per annum for each lot comprised in that action.
The Defendant’s Case
11. The 2nd Defendant in each action entered into no appearance. The 1st Defendant (i.e. “Defendant’ referred to below for easy reference), while not disputing the Plaintiffs being the registered owners of their respective Lots[5], counterclaims that the Plaintiffs’ title in the respective lots has been extinguished by virtue of limitation. He asks for a declaration that he has acquired possessory title in respect of each of the said 3 Lots.
12. The Defendant filed a Defence and Counterclaim in each Action on 6 November 2014 through his then solicitors Cheung and Liu. Each was endorsed with a statement of truth duly signed by him together with an interpretation clause signed by his solicitor.
13. After comparing the Defence and Counterclaim filed in the respective Actions, it is fair to say that they are basically identical. The Defendant’s pleaded case in the two Actions are:
i) prior to a date before 19 March 1974, one Mr Chan So (陳蘇) had been in possession of the 18 Lots, making use of them for growing sandworms;
ii) By a written agreement dated 19 March 1974 (“1974 Agreement”), Chan So sold to the Defendant’s father Leung Sun (梁申), also known as Leung Chiu (梁釗) (“Leung Senior”) the following 6 items situated within the 18 Lot at a price of $18,200:
(1) 1 wooden house for human habitation;
(2) 2 chicken houses;
(3) 7 lots of sandworm fields;
(4) 2 lots of vegetable fields;
(5) 1 unit of electric pump; and
(6) miscellaneous items including water pipes and chicken manure
iii) Shortly after 19 March 1974, Leung Senior, his wife Kwok Ah Nui (郭呀女) and their 6 children including the Defendant started to occupy the 18 Lots as their home. They started a family business there carrying out various farming and agricultural activities;
iv) during their occupation, they improved the 18 Lots by, inter alia, procuring electricity and water to be made available to the 18 Lots including in particular the said 3 Lots in question, digging of water wells and growing of flowers, banana and willow trees;
v) daily activities consistent with using the 18 Lots as their living place were carried out at the 18 Lots;
vi) in or around 1986, Leung Senior and the Defendant erected and had thereafter maintained a continuous...
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