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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 8 Cited in Precedent Map Related
Vincent
Judgment Date04 May 2021
Neutral Citation[2021] HKCA 648
Year2021
Judgement NumberCACV40/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV40/2020 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

CACV 40/2020

[2021] HKCA 648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 40 OF 2020

(ON APPEAL FROM HCA 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) (Appellant)

and
CHIM SAU CHING 1st Defendant
(Respondent)
ALL PERSONS IN OCCUPATION OF SECTION A OF LOT NO 1517 IN DEMARCATION DISTRICT 281 2nd Defendant

____________

Before: Hon Kwan VP, Cheung JA and G Lam J in Court
Date of Hearing: 16 April 2021
Date of Judgment: 4 May 2021

_________________

J U D G M E N T

_________________

Hon G Lam J (giving the Judgment of the Court):

Introduction

1. This appeal concerns the entitlement to a piece of land in Shatin known as Section A of Lot No 1517 in Demarcation District 281 (“Land”), on which there now stand two conjoined small two‑storey houses with the respective addresses of No 6 and No 6A Chap Wai Kon (Old) Village (插桅杆舊村) (“House 6” and “House 6A”). The plaintiff, as executrix of her deceased mother’s estate, is the registered owner of the Land and brought the action below to recover possession from the 1st defendant who was in occupation of the Land. The 2nd defendants were named as all persons in occupation of the Land, but the action was contested only between the plaintiff and the 1st defendant. The 1st defendant raised the defence of adverse possession, proprietary estoppel and an equitable principle on imperfect gifts,[1] and counterclaimed for declarations that she had acquired possessory title to the Land and that the plaintiff’s title had been extinguished. Deputy High Court Judge Paul Lam SC, after trial, dismissed the plaintiff’s action and made declarations in favour of the 1st defendant based on adverse possession. The plaintiff now appeals against his judgment[2] (“Judgment”) to this court, contending that judgment should be given in her favour or that there should be a re‑trial.

Background

2. In so far as relevant, we set out the facts and the findings made by the judge below.

The relations between various persons

3. The story starts with Chim Kwok Fan (詹國勳). He was an indigenous villager of the Chap Wai Kon Village in Shatin, born in 1901. He emigrated to Canada when he was about 17 years old. He and his first wife had a son born of their marriage called Jim Ping Kwan (詹炳坤) also known as Ben Jim (“Ben”), and an adopted son called Chim Yick Ling (詹奕麟).

4. Ben lived in Canada and died in 1985. While it appears he had descendants, there is no evidence about them.

5. Chim Yick Ling originally lived in Hong Kong. He and his wife Cheung Koon Tai (張觀娣) had a son called Chim Kim Hee (詹金喜). Chim Yick Ling emigrated to England in 1933 leaving his wife in Hong Kong, had another family there, and died in the late 1980s. Cheung Koon Tai continued to live on the Land in Hong Kong until she died on 16 August 1998 at the age of 82.

6. Chim Kim Hee and his wife, Law Ying Fung, had four children born between 1956 and 1969, the third of whom is the 1st defendant in the action and the respondent in this appeal, Chim Sau Ching (詹秀清).

7. In 1955, apparently after his first wife had died, Chim Kwok Fan married his second wife, Ruby Sun You Jim (“Ruby”) in Canada. They had five children, namely, Susan, Gordon, Dennis, Lilly, and Sarah. Sarah, as executrix of Ruby’s estate, is the plaintiff in the action below and the appellant here. Gordon’s wife is Pei Qining (“Pei”). Chim Kwok Fan and Ruby continued to live in Canada with their family until they passed away. Chim Kwok Fan died on 27 March 1981. Ruby died on 20 January 1997.

The occupation of the land

8. The Land had for a long time been inhabited by members of the Chim family. Chim Kwok Fan succeeded to the Land as a gift in 1948, but even before that, Chim Yick Ling, and his wife Cheung Koon Tai after their marriage in about 1931, had been living there. While Chim Yick Ling went to England not long after his marriage and thereafter only returned to Hong Kong occasionally, Cheung Koon Tai continued to live on the Land.[3]

9. Originally there was only one house on the Land. It was not clear exactly when it was converted into two houses, or when they became known as House 6 and House 6A respectively. The judge thought it likely that the house was converted into two only in about 1976 or 1977.[4]

10. The 1st defendant’s father, Chim Kim Hee, also lived on the Land after he was born in 1936. After he married Law Ying Fung in 1954, she lived there with him. Chim Kim Hee moved to England in around 1959, but his wife and their children continued to live on the Land until they all went to England successively between 1971 and 1975, leaving Cheung Koon Tai as the only inhabitant on the Land.[5] She was however joined by the 1st defendant who returned to live in Hong Kong in 1988. Since then, Cheung Koon Tai and the 1st defendant had been the only two persons who lived on the Land.

Events in the 1970s

11. In about 1969‑70, during a trip to Hong Kong, Chim Kwok Fan told Tsim Tim Shau (詹添秀), a fellow villager of Chap Wai Kon Village (who later became the head of the village for 8 years until 2019), that he intended to give the Land to his two sons, Chim Yick Ling and Ben; however, as he needed to return to Canada, he would deal with it the next time he came to Hong Kong. The judge thought it was inherently likely that Chim Kwok Fan would consider it more appropriate to leave the house - his ancestral home - to his two sons under his first marriage.[6]

12. In 1977, Chim Kwok Fan returned to Hong Kong for over five months between 3 May and 14 October. During his stay in Hong Kong, he arranged for extensive renovation and refurbishment works to be done to the two houses, which cost him HK$111,500. The judge considered that Chim Kwok Fan did this as part of his plan to give the Land to Chim Yick Ling and Ben. He wished to put the houses in good condition before giving them to his two sons.[7]

13. In addition, during his stay in Hong Kong, on 4 October 1977, Chim Kwok Fan executed a power of attorney, in a standard form known as N.T.A. 55 (Revised) (“1977 POA”), appointing Cheung Koon Tai as his attorney and authorising her to do all acts set out therein and to execute all necessary documents for a period of three years from 4 October 1977 to 3 October 1980 in relation to the Land. Cheung Koon Tai put a cross mark as her specimen signature on the 1977 POA. At the same time, Chim Kwok Fan also signed a “Letter of Confirmation” confirming that he, by executing the 1977 POA, was “fully aware that sale may be executed in respect of the [Land]”. The documents were executed in the District Office and witnessed by an Assistant Land Officer, New Territories. Stamp duty was paid and a memorial of the 1977 POA was registered in the New Territories Administration on the same day.[8]

14. In about 1977, Chim Yick Ling, who was in England, told Tsim Tim Shau that Chim Kwok Fan was returning to Hong Kong to deal with matters concerning the transfer of the Land but as Chim Yick Ling could not return to Hong Kong at the same time, Chim Kwok Fan executed a power of attorney in favour of Cheung Koon Tai.[9]

15. The judge noted that Chim Kwok Fan could not simply execute a deed of gift as a memorial for a deed of gift would have to be signed by the parties and attested by a witness. The judge found that, as Cheung Koon Tai was aware, the purpose of the 1977 POA was to enable Chim Kwok Fan’s attorney, namely Cheung Koon Tai, to execute documents to assign the Land to his two sons both of whom were not in Hong Kong at the time. In 1978, Cheung Koon Tai told Tsim Tim Shau that Chim Kwok Fan had already authorised her to deal with the transfer of the Land.[10]

16. Chim Kwok Fan made his last will on 30 March 1978, leaving the whole of his estate to Ruby. The judge took the view that Chim Kwok Fan left little to Chim Yick Ling and Ben by his will because he considered that he had already given them the ancestral home, ie the Land.[11]

17. Cheung Koon Tai did not exercise the power under the 1977 POA, which lapsed on 3 October 1980. Chim Kwok Fan died suddenly of a heart attack on 27 March 1981. Probate of his Hong Kong estate, covering his interests in the Land and numerous other lots in the New Territories, was granted to Ruby on 28 January 1991. By an assent dated 20 January 1993, she personally became the legal and beneficial owner of the Land.

Events from Chim Kwok Fan’s death to 1994

18. On 16 February 1982, while in London, Chim Yick Ling executed a general power of attorney appointing his wife, Cheung Koon Tai, as his attorney with full power to act on his behalf in relation to his application to the District Officer, Shatin for succession to the estate left by Chim Kwok Fan in accordance with section 7 of the Power of Attorney Ordinance 1972 (“1982 POA”). Various pieces of land, including DD 281 Lot No 1517A.H. (a clerical error for 1517A, the Land), were listed in the schedule to the 1982 POA. Chim Yick Ling signed as the “registered owner”, showing that he believed he was entitled to succeed to the Land.

19. In 1985, Ruby came to Hong Kong with Gordon and visited the Land and met Cheung Koon Tai. The judge rejected the plaintiff’s contention that during that meeting Ruby granted an express or implied licence to Cheung Koon Tai to stay on the Land.[12]

20. In 1986, Chim Yick Ling came back to Hong Kong for a few months and gave Cheung Koon Tai the 1982 POA. Cheung Koon Tai however never exercised the power under this power...

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