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Wong Wai Chi Susanna v Lam Lai Chun And Another

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date08 April 2020
Neutral Citation[2020] HKCFI 583
Year2020
Judgement NumberHCMP851/2016
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP851/2016 WONG WAI CHI SUSANNA v. LAM LAI CHUN AND ANOTHER

HCMP 851/2016

[2020] HKCFI 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 851 OF 2016

________________________

IN THE MATTER OF an application under Order 113 of the Rules of the High Court, Cap 4, Laws of Hong Kong
and
IN THE MATTER OF Lot No 583 in D D 185, Shatin, New Territories, Hong Kong

________________________

BETWEEN

WONG WAI CHI SUSANNA Plaintiff
and
LAM LAI CHUN 1st Defendant
PERSONS UNKNOWN 2nd Defendant

________________________

Before: Deputy High Court Judge MK Liu in Court

Date of Hearing: 14 – 17 January 2020

Date of Plaintiff Submissions: 31 January 2020, 4 February 2020 and 16 March 2020

Date of Defendant Submissions: 31 January 2020, 7 February 2020 and 9 March 2020

Date of Judgment: 8 April 2020

________________________

J U D G M E N T

________________________


INTRODUCTION

1. This is an adverse possession case concerning a piece of land in Shatin (“the Land”). No one has ever come forward and claimed that he or she is the 2nd defendant herein (“D2”). The legal battle in these proceedings is a battle between the plaintiff (“P”) and the 1st defendant (“D1”). The matters agreed and the matters non-agreed mentioned in this judgment are the matters agreed or non-agreed between P and D1.

2. I would first set out the agreed background facts as an introduction.

3. The Land is part of Lot 583 in Demarcation District No 185 in Shatin, New Territories, Hong Kong, also known as No 134 Ha Wo Che Village (“Lot 583”). The configuration of Lot 583 as agreed by the parties is shown on the plan annexed to this judgment and marked as Annex A.

(1) The Land is the shaded area surrounded by the red line.

(2) The Land consists of a building (“the Building”) and an open area. The Land measured by 13m (left to right) x 21m (top to bottom), with total area of 273 sq m (or 2938 sq ft), whereas the Building measured by 6m (left to right) x 12m (top to bottom), with total area of 72 sq m (774.8 sq ft).

(3) The Land is located on an elevated platform.

(4) The Land is neighboured (to the right side) by No 135 Ha Wo Che Village (“No 135”). No 135 is also located on an elevated platform. There are stairs leading up to the bottom side of No 135.

(5) There is a slope on the top of the Land (marked in orange in Annex A).

(6) There are a few matters on Annex A in respect of which the parties cannot reach an agreement. Those non-agreed items are marked on the plan.

4. The parties agree that the internal configuration of the Building is roughly as drawn on the plan annexed hereto as Annex B. The parties also agree that the door opening from the living room to the outside is at a position slightly indented into the Building as shown in a photo in the trial bundles[1].

5. P became the registered owner of the Land on 11 July 2008. She succeeded the title from Madam Yu Lai Wah, who was the registered owner from 9 August 1999.

6. Since at least December 1993, D1 has been living at No 61 Ha Wo Che Village with her husband Mr Wai Hung Cheung (“Wai”).

7. D1 and Wai purchased the Ground Floor of No 135 from Mr Ho Chi Hung and Mr Ho Chi Man Joseph in July 2010 at HK$980,000.

8. In or about 2014, there was maintenance work carried out by the Civil Engineering Department on the slope beside the Land.

9. On or about 28 September 2014, P, accompanied by two police officers, visited No 135 at which D1 was present. One of the police officers told D1 that P was legal owner of the Land.

10. On or about 28 October 2014, P inspected the Land with another male and raised issue with D1 for not having removed D1’s chattels from the Land.

11. By a letter dated 29 February 2016 from P’s solicitors Tony Kan & Co (“TKC”) to D1, TKC demanded delivery up of vacant possession of the Land to P within 14 days of the date of the letters.

12. By a letter dated 10 March 2016 from D1’s former solicitors Huen & Partners (“HP”) to TKC, HP stated that D1 was the occupier of the Land and requested proof of P’s rights regarding the Land.

13. By a letter dated 11 March 2016 from TKC to HP, TKC reiterated P’s demand for vacant possession of the Land within 14 days.

14. On 8 April 2016, P commenced these proceedings against D1.

15. After hearing all the evidence, the court was prepared to hear oral final submissions on 7 February 2020. However, due to the General Adjourned Period (“GAP”), the hearing on 7 February 2020 did not take place. I am grateful that the parties have agreed that the final submissions be dealt with on paper without an oral hearing. Both Mr Keith Lam, counsel for P, and Mr Patrick Chong, counsel for D1, have provided me detailed written final submissions. I have carefully considered all the written submissions provided by the parties.

THE PARTIES’ RESPECTIVE CASES

16. P’s case is simple and straightforward, ie P is the owner of the Land and D is a squatter occupying the Land. P is suing D to recover possession of the Land.

17. D1 is putting forward adverse possession as a defence to P’s claim and as a counterclaim. The adverse possession as pleaded by D1 in her defence and counterclaim is as follows:

“4. The 1st Defendant avers that, by reasons of the facts and matters pleaded in paragraphs 5 to 10 hereinbelow, since about September 2001, the 1st Defendant enjoyed, and is still enjoying, uninterrupted and exclusive possession of the Land and also other land in its vicinity as identified in the enlargement of the Lot Index Plan annexed hereto without any consent or licence of the Plaintiff or its predecessor in title.

5. The 1st Defendant was married on 29 December 1993 and she and her husband had their matrimonial home in No. 61, Ha Wo Che Village, Shatin, the New Territories (“No. 61 Ha Wo Che”), in which they were already living together before marriage. The Land was about 5-minute-walk away from No. 61 Ha Wo Che.

6. The late Mr. Ho Wing Chu (何永珠) (“Ho Senior”) was a fellow villager in the Ha Wo Che Village and the then registered owner of all those 2/5th parts or shares of and in Lot No. 508 in Demarcation District No. 185, Shatin, the New Territories and of and in the building thereon known as No. 135 Lung Fung Terrace together with the sole and exclusive right and privilege to hold and enjoy all the ground floor of the said building (collectively “Lot 508 and the Ground Floor”). Lot 508 and the Ground Floor was next to and adjoining the Land.

7. Prior to 2001, when visiting Ho Senior in Lot 508 and the Ground Floor on various occasions, the 1st Defendant had already observed that the Land was abandoned.

8. In about 2001, Ho Senior told the 1st Defendant that the Land had been left vacant for a long period of time and the 1st Defendant might make use of the Land. At the material time, the 1st Defendant had been looking for a more spacious residence since her son was born in 1999 and No. 61 Ha Wo Che was too small for her family to live in.

9. In about September 2001, the 1st Defendant first entered the Land through the broken part of the wire fence which enclosed the Land (as identified in the enlargement of the Lot Index Plan annexed). At that time, the Building on the Land had a roof top and it was full of rubbish and the open area of the Land (“Open Area”) was covered with wild weed, rubbish and shrubs of about 2 to 3 metres in height.

10. Since her first entrance to the Land in about September 2001, the 1st Defendant decided and started to exclusively occupy the Land for her own use to the exclusion of the Plaintiff and all other persons, the particulars of which are as follows:-

PARTICULARS OF THE 1ST DEFENDANT’S POSSESSION OF THE LAND

(a) Whenever the 1st Defendant left the Land, she would either use an electric wire or a bicycle lock to tie up the broken part of the wire fence (as identified in the enlargement of the Lot Index Plan annexed) in order to prevent any other persons from entering the Land. This broken part was the sole point for entrance into the Land.

(b) The Plaintiff started to clean up the Building and the Open Area. She visited the Land almost every day, sometimes with her friends, in order to remove the wild weeds and rubbish in the Open Area and also cleaned up the Building.

(c) Given that the Open Area was large in size, the cleaning works continued for about 4 to 5 years before the 1st Defendant could clean up the whole Open Area.

(d) In order to make more room in her then residence in No. 61 Ha Wo Che, the 1st Defendant stored various chattels inside the Building, including wardrobe, table, chairs, bedstead, trolley, bicycle, air-conditioner, outdoor cabinet etc. She also allowed her friends to store some belongings therein.

(e) The 1st Defendant trimmed down the trees in the Open Area and also planted various trees and plants on the Open Area, including sweet potatoes, plantain trees, jackfruit, grapefruit trees and bitter gourd. In particular, after the Open Area was partially cleaned up, the 1st Defendant discovered the planter (originally covered by wild weeds, shrubs and rubbish) as identified in the Lot Index Plan annexed. In about 2003, she and her friend piled up rocks along the rim of the planter and planted various plants and vegetables there.

(f) The 1st Defendant repaired, maintained and renovated the Building on the Land.

(g) From time to time, the 1st Defendant would invite her friends and relatives to attend the Land to have gatherings. In particular, in various festivals, including the Christmas of 2001 the earliest, the 1st Defendant and her friends and family would have gatherings, including having barbecue and/or hotpot on the Land.

(h) A few years after the 1st Defendant occupied the Land, knowing that Ho Senior’s sons would like Ho Senior to sell Lot 508 and the Ground Floor and...

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