TSE WAI MAN v. THE PERSONAL REPRESENTRATIVE OF LAI TSE FAT, DECEASED

HCA 1513/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1513 OF 2011

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IN THE MATTER of 3rd Floor, No.6A Whampoa Street Kowloon
AND
IN THE MATTER of the Limitation Ordinance, Cap 347

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BETWEEN

TSE WAI MAN Plaintiff

and

THE PERSONAL REPRESENTRATIVE Defendant
OF LAI TSE FAT, DECEASED

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Before: Deputy High Court Judge Sakhrani in Court

Date of Hearing: 13 March 2013

Date of Judgment: 13 March 2013

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J U D G M E N T

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1. These proceedings concern the property known as 3rd Floor, No. 6A, Whampoa Street, Kowloon (“the property”).

2. The plaintiff is the registered owner of 50% share in the property. He acquired the 50% share by the assignment dated 13 December1983. The other registered owner holding the other 50% share in the property is Lai Tse Fat. Lai Tse Fat, on the evidence beforeme, passed away on 28 June 1994. I shall refer to him as “the deceased”.

3. It is clear, on the evidence, that no grant of probate or letters of administration of the deceased’s estate has ever been issued.

4. The plaintiff claims a declaration that the deceased has lost his right to bring an action to recover the 50% share of the propertyby virtue of section 7(2) of the Limitation Ordinance, Cap 347. Section 7(2) provides:

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which theright of action accrued to him or, if it first accrued to some person through whom he claims, to that person. …”

5. It is also relevant to consider section 17 of the Limitation Ordinance. This provides as follows:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemptionaction), the title of that person to the land shall be extinguished.”

6. By the order of Master Ho dated 13 June 2012, it was ordered that the Official Solicitor be appointed to represent the estate ofthe deceased for the limited purpose of accepting service of the writ of summons in this action. Thereafter, by the order of MasterKo dated 25 June 2012, it was ordered that these proceedings do proceed in the absence of a person representing the estate of thedeceased.

7. I heard evidence from the plaintiff as well as from his sister‑in‑law, Chan Lai Ching, and his brother-in-law, Chan Man Kai. I found all of them to be honest, truthful and reliable witnesses.

8. On the evidence, which I accept, I am satisfied that the plaintiff lived at the property with his family from the time he purchasedthe 50% share until about 1993 when he and his family left Hong Kong. He then let his sister‑in‑law Chan Lai Ching and her familystay at the property until about 1995 as licensee. From about 1995, the plaintiff let his brother‑in‑law Chan Man Kai stay atthe property also as a licensee. The plaintiff never collected any rent or licence fees from them and I am satisfied that they werehis licensees.

9. It is also clear on the evidence, and I so find, that the rates, property tax, and other outgoings for the property were paid forby plaintiff.

10. Throughout the period from the time the plaintiff purchased the 50% share of the property in 1983 he has never met or seen the deceased. I am also satisfied that the deceased has never been to the property and he has never made any claim in respect of the property.

11. There has been a lengthy period of continuous and exclusive possession by the plaintiff of the property ever since he purchasedthe 50% share in December of 1983. I so find.

12. It seems to me that from 1993 onwards the plaintiff had exclusive possession of the property through his licensees. In my judgment,the possession by the plaintiff through his licensees was also possession which was adverse to the deceased. (Sze To Chung Keung v Kung Kwok Wai David and Another [1997] 2 HKC 231 at 234.)

13. Having heard the evidence and being satisfied that the plaintiff is entitled to the relief it seeks, I give judgment to the plaintiffas sought by Mr Kwok for the plaintiff for a declaration against the defendant:

(i) that the defendant has lost his right to bring any action to recover the 50% share of the property or any part thereof by virtueof section 7(2) of the Limitation Ordinance; and

(ii) by virtue of section 17 of the Limitation Ordinance the title of the deceased to the 50% share of the property has been extinguished.

14. I make no order as to costs.

(Arjan H. Sakhrani)
Deputy High Court Judge

Mr Kwok Kam Kwan and Mr Chu Ming Tung, instructed by Wong Poon Chan Law & Co, for the Plaintiff

Defendant was not represented and did not appear