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Sarah Sally Chan Kent (Executrix Of The Estate Of Ruby Jim Sunyou Alias Ruby Kang You Jim (Nee) Wong, Deceased) v Chim Sau Ching And Another

Judgment Cited authorities 20 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 December 2019
Neutral Citation[2019] HKCFI 3066
Judgement NumberHCA2369/2015
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA2369/2015 SARAH SALLY CHAN KENT (Executrix of the Estate of RUBY JIM SUNYOU alias RUBY KANG YOU JIM (nee) WONG, deceased) v. CHIM SAU CHING AND ANOTHER

HCA 2369/2015

[2019] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2369 OF 2015

____________

BETWEEN
SARAH SALLY CHAN-KENT Plaintiff
(Executrix of the Estate of RUBY JIM SUNYOU
alias RUBY KANG YOU JIM (nee) WONG, deceased)

and
CHIM SAU CHING 1st Defendant
All persons in occupation of Section A of Lot No. 2nd Defendant
1517 in Demarcation District 281

____________

Before: Deputy High Court Judge Paul Lam SC in Court
Dates of Hearing: 25 – 29 November and 3 December 2019
Date of Judgment: 27 December 2019

____________________

JUDGMENT

____________________

A. INTRODUCTION

1. This cases concerns a piece of land known as Section A of Lot No 1517 in Demarcation District 281 (“the Land”). The plaintiff, Sarah Sally Chan-Kent (“Sarah”) claims possession of the Land as the legal registered owner thereof. The 1st defendant, Chim Sau Ching (“Ching”) is a relative of Sarah. She claims adverse possession of the Land by herself and/or her family members. Alternatively, she relies on proprietary estoppel, or the equitable principle concerning imperfect gift as set out in Pennington v Waine [2002] 1 WLR 2075. While denying that Ching or her family members were in possession of the Land at all, Sarah claims that, in any event, they merely occupied the Land as licensees pursuant to express, or implied licences granted by the registered owner of the Land.

B. THE FAMILY

2. The person who played a central role in this case is Chim Kwok Fan (“CKF”), who was also known as Jim Sun You, Jim Sunyou, Sun You Jim or Chim San Yau. He was an indigenous villager of the Chap Wai Kon Village at Shatin, New Territories. He was born on 15 September 1901 and died on 27 March 1981. He emigrated to Canada when he was about 17 years old.

3. CKF had two wives. His first wife was Lau Shing Kiu. They had a biological son called Jim Ping Kwan (“Ben”), who was also known as Chim Ping Kwan, Jim Kwan or Ben Jim. It is unclear when Ben was born; he died on 12 May 1985. He lived in Canada. While it seems that he had some descendants, there is no evidence about them.

4. CKF and Lau Shing Kiu also had an adopted son called Chim Yick Ling (“CYL”), who was also known as Jim Yick Ling or Jimmy Ling. It is unclear when he was born and died, but it seems that he died in the late 1980s. His wife was Cheung Koon Tai (“CKT”). She always lived in Hong Kong. She died on 16 August 1998 at the age of 82. It appears that CYL emigrated to England when he was young, and had another family there. CYL and CKT had a son called Chim Kim Hee (“CKH”). CKH was born on 14 January 1936 and died on 21 September 2017. CKH married Law Ying Fung (“LYF”), who was born on 20 June 1935, in about 1954. Ching, born on 29 October 1963, is the daughter of CKH. She has an elder sister called Jim Sau Lan (born in 1956), an elder brother called Tsim Lo Fat (born in 1958) and a younger brother called Chim Chi Wai (born in 1969). CKH moved to England in about 1959. In about 1971, Ching’s mother together with Ching’s elder brother moved to England. In about 1973, Ching and her elder sister also went to England. In about 1975, Ching’s parents took her younger brother to England as well. Ching returned to live in Hong Kong in about 1998. Since then, CKT and Ching were the only two persons who lived in Hong Kong. And after CKT died, Ching has become the only one.

5. CKF married his second wife, Ruby Sun You Jim (“Ruby”) also known as Ruby Jim, Ruby Jim Sunyou, Ruby Kang You Jim (nee) Wong in Canada on 8 November 1955 when he was 54 years old. By then, Lau Shing Kiu had apparently already passed away. Ruby, who was born in Hong Kong, moved to Canada shortly before her marriage in 1955. She died on 20 January 1997. CKF and Ruby had five children including Susan Jim, Gordon Jim (“Gordon”) (born on 4 June 1958), Dennis Jim (“Dennis”) (born on 29 June 1960), Lilly Jim and Sarah (born on 19 July 1963). Gordon’s wife is Pei Qining (“Pei”), who was born on 12 January 1967. CKF and Ruby continued to live in Canada until they passed away. Sarah and her sibling all live in Canada as well.

C. THE LAND

6. The Land is situated at Chap Wai Kon Village, Shatin. CKF became the legal registered owner of the Land on 17 July 1948. Upon his death in 1981, Ruby Jim, as the sole executrix of his estate, became the legal registered owner. Under the last will of CKF made on 30 March 1978, he gave all his estate, which included the Land, to Ruby. By an assent dated 20 January 1993, Ruby became the legal and beneficial owner of the Land.

7. After Ruby’s death, P, as the sole executrix of her estate, became the legal registered owner. Under the last will of Ruby made on 23 July 1991, Sarah and her four siblings are the five beneficiaries of her estate, which included the Land.

8. It is common ground that there is now a twin house, which is more accurately described as two semi-detached houses on the Land with the following addresses ie No 6 and No 6A Chap Wai Kon (Old) Village, Shatin, New Territories, Hong Kong (“House 6” and “House 6A”). There is a dispute whether there are always two houses on the Land, or whether there was originally one house only which was subsequently converted into two houses (and if so, when).

D. THE PARTIES’ RESPECTIVE CASE AND THE ISSUES

D1. Sarah’s case

9. Sarah’s case is that she is entitled to possession of the Land in her capacity as the legal registered owner thereof. Her primary contention is that Ching has failed to discharge the burden of proving the two essential elements of adverse possession ie factual possession and the intention to possess. Among other things, she claims that Ching had acknowledged the title of the legal owner by, firstly, asking Sarah’s siblings to settle outstanding Government rates and rent in 2008; and secondly, asking Gordon for permission to renovate House 6A in about 1992.

10. Further, and in any event, Sarah claims that there could not be any adverse possession because, since about 1970s, CKF granted an oral licence to CKT to reside on the Land until her death because he felt sorry that CYL had abandoned CKT and left Hong Kong for England. After CKF’s death, the licence was continued by Ruby up to the time Ruby died. And after that, the licence was continued by Sarah. After CKT died, she granted a licence to Ching to allow her to reside on the Land until it was revoked by a letter issued by Sarah’s solicitors on 7 August 2014.

11. Sarah claims in the alternative that, if there were no such express licences (“the Express Licences”), there were nevertheless implied licences (“the Implied Licences”), which can be inferred by (a) the good or cordial relationship between Sarah’s family with CKT and Ching; (b) the use and configuration of the Land in the same way at least until 2011; (c)the common understanding between parties or Ching’s clear knowledge that the Land belonged to CKF and then Ruby before the commencement of this action as evidenced by the visits to and stays on the Land by CKF, Sarah and her siblings whenever they returned to Hong Kong; (d) Ching asked Sarah’s siblings to settled the accrued Government rent and rates and for permission to renovation House 6A; and (e) CKF and Ruby’s payment of the renovation of the two houses in about 1977.

D2. Ching’s case

12. Ching’s case is that, since the time of her grandparents ie CKT and CYL and grand-uncle ie Ben, and later also her father ie CKH, there has been a single continuous possession, jointly and successively, which was adverse to the paper owners:

(a) CKT had lived on the Land since her marriage to CYL in about 1931 until her death in 1998.

(b) CKH lived on the Land since his birth in 1936. LYF also lived on the Land after she married CKH in about 1954 until both of them emigrated to England in about 1959.

(c) Ching lived on the Land since her birth except for the period between 1973 and 1988 when she was studying in England. After she returned to Hong Kong in 1988, she has been living on the Land, taking care of CKT until she passed away. She is still living there.

(d) In the 1970s at the latest, CKF had the intention to assign the Land to his two sons from his first marriage ie CYL and Ben.

(e) In about 1976, the single house originally built on the Land was divided into two houses in view of CKF’s intention to give one of them to CYL and the other to Ben. CKT paid for the works.

(f) On 4 October 1977, when CKF returned to Hong Kong, he executed a power of attorney (“the 1977 POA”) to CKT to enable her to execute an assignment of the Land in favour of CYL and Ben who were both working abroad at that time.

(g) After that, CYL, CKT and Ben took the Land as belonging jointly and exclusively to themselves, until CKH (from around late 1977 onwards) and Ching (from around 1987 onwards) also took the Land as belonging jointly and exclusively to themselves. Since around 1998, Ching has taken the Land as belonging exclusively to her. The Land has all long been the ancestral home for them and they took the Land to the exclusion of the whole world including the paper owners.

(h) CKT and Ching had, for the most parts, paid Government rent, and when CKH received a demand letter for Government rates, he applied for exemption. They paid the utility charges relating to the use of the Land. Ching had also repaired and renovated House 6 and House 6A. Further, at various times, they had let House 6A to various tenants.

13. Alternatively, Ching relies on proprietary estoppel. She contends that, in reliance on the 1977 POA and CKF’s intention to gift the Land to CYL, CYL, CKT and...

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