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The Incorporated Owners Of Kam Luk Building v Poon Mui Sang And Others

Judgment Cited authorities 11 Cited in 1 Precedent Map Related
Vincent
Judgment Date30 November 2018
Neutral Citation[2018] HKDC 1493
Year2018
Judgement NumberDCCJ1649/2016
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1649/2016 THE INCORPORATED OWNERS OF KAM LUK BUILDING v. POON MUI SANG AND OTHERS

DCCJ 1649/2016

[2018] HKDC 1493

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1649 OF 2016

-------------------------

BETWEEN
THE INCORPORATED OWNERS OF KAM LUK BUILDING Plaintiff
and
POON MUI SANG 1st Defendant
何帶娣 (Discontinued) 2nd Defendant
LAW HOI PANG (Discontinued) 3rd Defendant
HO SUI YING 4th Defendant
THE OCCUPANT(S) OF STAIRCASE AT
NOS.75 AND 81 ON G/F OF KAM LUK
BUILDING AT NOS.61, 65/67, 71/73, 77/79
& 83 SHEK YAM ROAD, KWAI CHUNG,
NEW TERRITORIES 5th Defendant

-------------------------

Before: His Honour Judge Andrew Li in Court
Dates of Hearing: 6, 7, 9 November 2017 & 13 December 2017
Date of Judgment: 30 November 2018

---------------------

JUDGMENT

----------------------

INTRODUCTION

1. This is a claim brought by the plaintiff (“P”) to evict the occupants from some common areas underneath the staircases of an old commercial/residential building in Kwai Chung, New Territories.

2. P’s case against the 2nd and 3rd defendants had been discontinued some time ago. Further, no person fitting the description of the 5th defendant has ever joined as a party to the proceedings. Hence, the only defendants left in the proceedings by the time of the trial are the 1st and 4th defendants (“D1” & “D4” respectively and “Ds” collectively).

3. D1 and D4 claim adverse possession against P and say that by virtue of their adverse possession to the staircases, they should be declared as the lawful owners of those areas. Alternatively, they claim P, together with its predecessors, has waived or acquiesced their presence after putting up with the situation for over 40 years. Hence, it is now debarred from doing so.

BACKGROUND

4. P is the Incorporated Owners of Kam Luk Building which is situated at 61-83 Shek Yam Road, Kwai Chung, New Territories (“the Building”).

5. D1 was the registered owner of Flat 6A on 2/F of the Building from 1973 to June 2016. He assigned the unit to his daughter shortly after the writ in these proceedings was issued in April 2016.

6. D4 is the son of the registered owners of Flat 2A on 2/F who had owned the unit from 1973 to 2006. His father had been the co-owner of the unit (together with D4’s mother) since 1973 until his death in 1993. His mother then became the sole registered owner until 2006 when she sold the property to a third unrelated party.

7. P’s case is that the area under the staircases on the ground floor are common parts under the Deed of Mutual Covenants (“DMC”) and/or by virtue of section 2 and Schedule 1 of the Building Management Ordinance, Cap 344 (“BMO”). Since 2010 at the latest, P says that D1 and D4 have trespassed on those common parts by fencing off and operated 2 different shops under those staircases.

8. D1 and D4 admitted that they or their families have occupied the areas underneath the staircases respectively at Nos 75 and 81 (“Staircase 75” and “Staircase 81” respectively or “Staircases” collectively) on the ground floor of the Buildingsince or around 1973. The Staircases had first been used by the families to operate different businesses, namely, Staircase 75 by D1 for selling fruits and Staircase 81 by D4’s parents in running a photography shop. Then they were rented out to other parties respectively by D1 and D4’s parents (and later by D4). Their defence is that: (a) their family have adversely possessed those areas and/or (b) P’s alleged inaction amounted to wavier or acquiescence. D1 & D4 further raise a counterclaim in adverse possession.

9. P’s primary case against D1 & D4 is that the DMC (“DMC”) of the Building provides, inter alia, that no party shall use the common staircases for the purpose of placing or storing anything thereon or therein: See clauses 12 & 13 of the DMC. Further, it says that the DMC is binding on persons claiming through, under or in trust for a co-owner, and has effect on the tenants and licensees of a party: See, for example, the preamble, clauses 2 and 24 of the DMC.

10. Further or in the alternative, P claims that the conversion of the common parts of the Building is prohibited by section 34I of the BMO.

DISCUSSION

A. Issues in dispute

11. The issues that this court will have to resolve in this case will include:

(a) whether D1 and D4 have been in exclusive possession of Staircase 75 and Staircase 81 for a period exceeding 12 or 20 years before the commencement of this action, and by so doing have acquired a possessory title thereto by way of adverse possession;

(b) whether the alleged inaction on the part of P amounts to waiver and acquiescence;

(c) whether P is debarred from seeking vacant possession of Staircase 75 and Staircase 81 by virtue of the provisions of the Limitation Ordinance, Cap 347 (“LO”); and

(d) in the event that D1 and/or D4 fails in their defence, whether P is entitled to recover mense profits and other damages from them; if so, how much.

B. Witnesses called at trial

12. Insofar as oral evidence is concerned, the following witnesses have been called to give evidence at trial:

(a) On P’s side: Mr Fung Chi Ching (“Fung”), PW1, the property manager of the company appointed by the Incorporated Owners which manages the Building;

(b) On Ds’ side:

(i) D1, who is DW1 at the trial and who claims to have occupied and possessed Staircase 75 since 1973;

(ii) Tsoi Chi Shing (蔡志成), DW2, D1’s relative who has resided in the Building;

(iii) Tsang Hing Biu (曾慶標), DW3, a friend of D1;

(iv) Lam Tak Ming (林達明), DW4, a friend of D1 who has resided in the Building;

(v) Poon Mui Kin (潘梅堅), DW5, D1’s elder brother who has resided in the Building;

(vi) Wong Shun Hing (黃順興), DW6, wife of DW5 who has also resided in the Building;

(vii) D4, DW7, who allegedly has occupied and managed Staircase 81 since 2000;

(viii) Lo Yee Kay (勞漪淇), DW8, (“Madam Lo”) who is the mother of D4 and registered owner of Flat 2A of the Building between 31 May 2001 and 8 August 2006;

(ix) Ng Kwai Ying (吳桂英), DW9, who is D4’s aunt;

(x) Lo Cheung Chung (勞肇沖), DW10, who is D4’s cousin; and

(xi) Lam Kwok Wah (林幗華), DW11, the aunt of D4.

C. Legal Principles Involved

C.1 Adverse possession: basic principles

13. The basic principles in relation to adverse possession itself are trite and in any event they are not seriously in dispute amongst the parties in this case.

14. The essential elements of adverse possession can be briefly stated as follows:

(a) A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess, namely the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner: Wong Tak Yue v Kung Kwok Wai David & Another (1997-98) 1 HKCFAR 55 at 68E-J;

(b) Adverse possession is possession “as of wrong”: Wong Tak Yue, supra at 68H, 69F; Kung Wong Sau Hin & Another v Sze To Chun Keung & Another [1997] 1 WLR 1232 at 1235; Cheermark Investment Ltd v The Director of Lands (LDLR 2/2013; 3 November 2015) §§90-91; and

(c) Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight: Wong Tak Yue, supra at 69B-C.

15. The legal principles on what it takes to establish a claim on adverse possession have been succinctly summarized by Cheung JA in Yu Kit Chiu & Another v Chan Shek Woo(陳錫湖), unreported, CACV 137/2010 (Cheung, Yuen JJA and Fung J; 18.2.2011), at §§15-22 as follows:

“Principles

15. A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess animus possidendi. This requirement has been authoritatively affirmed by the Court of Final Appeal in Wong Tak Yue v. Kung Kwok Wai & Another (No. 2) (1997-1998) 1 HKCFAR 55, which approved the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452 and adopted in the subsequent line of cases such as R v. Secretary of State for the Environemnt ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] Ch. 623.

16. The intention to possess involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of law will allow (per Slade J in Powell at pp 471-472). The question of intention to possess is one of facts;

17. In The Incorporated Owners of San Po Kong Mansion v. Shine Empire Limited (2007) 10 HKCFAR 588 the Court of Final Appeal, per Nazareth NPJ, stated that

‘7. The principles for the application of ss. 7(2), s.17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v. McFarlane [1977] 38 P & CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v. Kung Kwok Wai (1997-98) 1 HKCFAR 55.”

House of Lords’ decision

18. In J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419, the House of Lords affirmed the principles stated by Slade J in Powell. Lord Browne-Wilkinson at paragraphs 32 to 38 referred to the history of the English Limitation Act (upon which the Hong Kong Limitation Ordinance is based) and discussed the confusion in this area of the law. He held the problem was...

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1 cases
  • The Incorporated Owners Of Kam Luk Building v 吳靜燕
    • Hong Kong
    • District Court (Hong Kong)
    • 9 April 2020
    ...that case on 30 November 2018 (“Judgment in the Related Action”): See The Incorporated Owners of Kam Luk Building v Poon Mui Sang & Ors [2018] HKDC 1493. 16. In the Judgment in the Related Action, I had, inter alia, held (1) the 1st defendant had established adverse possession to Staircase ......

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