Professional Documents
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Lam Kwok Kin and Another v. The Estate of Jam Lun Chin (2020) HKDC 857
Lam Kwok Kin and Another v. The Estate of Jam Lun Chin (2020) HKDC 857
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DCCJ 3273/2016
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[2020] HKDC 857 C
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IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
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H
BETWEEN H
LAM KWOK KIN (林國健) 1st Plaintiff
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LAM KWOK FUNG (林國鎽) 2nd Plaintiff
J and J
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Before: Deputy District Judge Charles Wong in Chambers
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Date of Hearing: 28 September 2020 C
Date of Decision: 28 September 2020
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Date of Reasons for Decision: 12 November 2020
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REASONS FOR DECISION
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1. The 1st and 2nd plaintiffs applied under O 13 r 6 and O 19 r 7
I of the Rules of the District Court (Cap 336H by a summons taken out on I
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(b) A declaration that by virtue of section 17 of the LO,
Q each of defendants’ title (if any) to any part of the Q
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2. After hearing counsel for the plaintiffs, I dismissed the
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application with costs to the defendants. The following are my reasons. C
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Principles on O 13 r 6 and O 19 r 7 application
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entitled without the declaration he seeks: Lam Shing Shou v Lam Hon Man
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& Others (unrep HCA 361/2001, [2002] HKLRD (Yrbk) 94) at §§12-13.
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3 HKLRD 504 §§5-6, Fung Shek Wa v Chang Lai Yue (unrep, HCA
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2258/2013, 18 September 2014) §§34-42 and Hong Kong Civil Procedure
O 2020, supra, §19/7/11. O
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The plaintiffs’ pleaded case
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6. Grandfather Jimmy and Grandmother Margaret have four
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children. (1) Chan Bik Wan, the mother of the plaintiffs (“Mother”), (2) C
Chin Ray also known as Raymond Chin (“Uncle Ray”) who resided in
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New Zealand, (3) Chan Shun Tae also known as Roy Chin (“Uncle Tae”)
E who also resided in New Zealand and (4) Chan Sin Bon (“Aunt Bon”) who E
four children. (1) Lam Kwok Kin, (P1), (2) Lam Kwok Ki, (3) Lam Kwok
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Hing and (4) Lam Kwok Fung (P2). All four children were born in the
I 1950s. I
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M M
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-5-
A A
B B
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1st Child
Chan Bik Wen 陳碧雲 3rd Child 4th Child
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(Mother) Chan Shun Chan Sin Bon
2nd Child Tae (Aunt Bon)
I 陳博義 I
Chin Ray 陳博禮
(Uncle Ray) (Uncle Tae)
1st Child 2nd Child (Mai Chin:
J (Melvin Raymond J
Lam Kwok Kin Lam Kwok Ki Chin, Myron D3)
林國健 (P1) 林國基 David Chin and
K Zeljan Alexander K
Unkovich: D2)
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3rd Child
Lam Kwok
M Hing M
林國慶 4th Child
Lam Kwok Fung
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林國鎽 (P2)
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8. In 1959, Grandfather Jimmy acquired the Premises and
Q allowed Mother to occupy the same together with her siblings. Q
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A A
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9. Grandfather Jimmy passed away intestate on 7 May 1964 in
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Auckland, New Zealand. The Premises continued to be occupied by C
Father, Mother and some or all of their children. Lam Kwok Ki and Lam
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Kwok Hing emigrated to the United States in the early seventies and have
E not been in occupation of the Premises ever since. Father and Mother paid E
occupied the Premises and paid for all the outgoings. Only they had the
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key to the only entrance door to the Premises and no one had access to the
I Premises without their consent. I
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11. Father passed away in 2002. The plaintiffs continued to be in
K possession of the Premises. They became the only persons who have the K
key to its entrance and are responsible for discharging all its utilities as
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owners.
M M
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13. It is the plaintiffs’ case that as Grandfather Jimmy passed
S away on 7 May 1964, which was before the coming into force of the S
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and Uncle Tae, the surviving male descendants of Grandfather Jimmy,
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would have been entitled to the Premises. C
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Other relevant facts
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New Zealand and Hong Kong were in vain. His death certificate shows
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that he was born in Canton, China. He married at the age of 16 and resided
I in New Zealand for 40 years. I
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15. Uncle Ray resided in New Zealand and passed away on
K 30 September 2007. Probate of his estate was granted in favour of his wife K
Rita Chin, who passed away on 7 May 2011. Probate of her estate was
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granted in favour of Melvin Raymond Chin, Myron David Chin and Zeljan
M M
Alexander Unkovich (D2).
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16. D2 filed a Defence and Counterclaim but subsequently filed a
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Notice of Withdrawal and Discontinuance to withdraw their whole defence
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17. Uncle Tae also resided in New Zealand and passed away on
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23 August 1993. Probate of his estate was granted in favour of his wife
T Mai Chin (D3). T
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B B
18. Due service of the Re-Amended Writ is substantiated by
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evidence of service and all the defendants have been in default of their C
defence to the Re-Amended Statement of Claim.
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19. Under s 7 of the LO, a right to recover land expires 12 years
G after its accrual, and the title of the person to the land is extinguished along G
with the expiration of his right of action as stipulated under s 17 of the LO.
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For rights accrued before 1 July 1991, the limitation period is 20 years:
I s 38A of the LO, and no right of action to recover land shall accrue unless I
Premises would have been governed by Tsing Law (Chinese law and
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custom, also referred to as Ching Law or Qing Law) under which only sons
S are entitled to a deceased’s property in equal shares. Therefore, upon S
Grandfather Jimmy’s death, only his sons Uncle Ray and Uncle Tae were
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entitled to the Premises. See: Man Leung v Man Yuet Kwai [2013] 2
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A A
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HKLRD 1122 at §143, Liu Ying Lan v Liu Tung Yiu & Anor (unrep HCA
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6693/1992, 8 May 2002)] at §28 and upheld on appeal in Liu Ying Lan v C
Liu Tung Yiu & Anor [2003] 3 HKLRD 249 §18(9).
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occupy the Premises together with her siblings. However, such license is
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automatically determined by the death of the licensor: Ho Hang Wan v Ma
G Ting Cheung as Personal Representative of Ma Sz Tsang, deceased [1990] G
1 HKLR 649 at 652. It is the Plaintiff’s case that since Father, Mother and
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the plaintiffs continued to reside in the Premises after Grandfather Jimmy’s
I death without any consent or permission from either Grandfather Jimmy’s I
estate, Uncle Ray or Uncle Tae, their possession became adverse and if
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coupled with the requisite factual possession and intention to possess, any
K period of adverse possession of the Premises by them would have begun to K
M 23. Mr Wong submits that on the facts as pleaded, there has been M
only persons who have the key to the entrance of the Premises and no other
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persons had access to the same without their consent. They have been
Q dealing with the Premises as occupying owners might have been expected Q
to deal with it and that no-one else apart from them has done so. The
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family’s actions have manifested clear intention on their part to exclude the
S world at large. Under the LO, they had obtained all possessory title over S
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A A
B B
24. Mr Wong further submits that in the alternative, at the very
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least, since the death of Father on 8 September 2002, the plaintiffs have C
become the only remaining possessors of the Premises and the only two
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who have the key to its entrance and have paid for all its utilities. Under
E the LO, they must have obtained all possessory title over the Premises for E
12 years, ie 8 September 2014, at the latest in any event. These facts were
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supported by Affirmations filed by the plaintiffs with supporting
G documents including copies of the government rates and utilities bills and G
residential proof.
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of plaintiffs’ Writ, ie 6 July 2016, by virtue of the LO, the defendants must
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have had lost their right to bring any action to recover any part of the
K Premises and any title over the same and the plaintiffs as adverse K
possessors of the Premises must have had acquired all possessory right,
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title and interests over the same. The plaintiffs should therefore be entitled
M to the declarations as sought, whether on their pleaded case or the evidence M
adduced.
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absolutely necessary or more than what the plaintiffs are entitled to, the
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plaintiffs have a genuine need for the same and justice would not be done if
S such relief is denied. In the premises, this rule of practice will give way to S
the paramount duty of the court to do the fullest justice to the plaintiff to
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which he is entitled: Hong Kong Civil Procedure 2020, supra, at §§19/7/14
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A A
B B
and 19/7/20. See also: Lam Shing Shou v Lam Hon Man & Others, supra,
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at §§11-17, Wu Chi Kwong v Estate of Cheung Man Yau, supra, at §§7-11. C
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Discussion
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27. The plaintiffs’ claim for adverse possession is built upon the
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basis that when Grandfather Jimmy died intestate, Mother being a female
G decedent had no interest in the Premises under Tsing Law. G
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28. Whilst the evidence shows that Grandfather Jimmy had a
I Chinese name and was born in Canton, China, it is indisputable that he had I
been living abroad New Zealand for over 40 years. Grandfather Jimmy
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possesses the classic feature of an overseas Chinese who has emigrated,
K resided and worked abroad. Mr Wong fairly conceded that there is no K
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29. In considering whether Tsing Law applied in Wong Ying
O Kuen alias Wong Kwok Hung v Wong Yu Shi alias Wong Yu Pui Huen O
S S
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A A
B B
30. The Court of Final Appeal in Suen Toi Lee v Yau Yee Ping
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appointed by Order to represent the Estate of Chu Lee alias Chu Lan Fan, C
(2001) 4 HKCFAR 474; [2002] 1 HKLRD 197, discussed the application
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of Tsing Law. Whilst this case is mainly on the true construction of the
ordinance, Cap 73. I find the general principle as set out in this case on the
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application of Tsing Law applies to the present case. §§36 to 38 Bokhary
G PJ states:- G
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“ Domicile
R 38. I am satisfied that the general rule is, and has always R
been, that the application of Chinese law and custom applied
directly as Hong Kong domestic law is confined to Chinese
S persons domiciled in Hong Kong, though the concept of S
domicile may have been applied somewhat loosely in some of
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the cases. T
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A A
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31. The authorities have clearly set out two elements for Tsing
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Law to apply (1) the subject had to be a Chinese person; and (2) the subject M
was domiciled in Hong Kong.
N N
O
32. As Grandfather Jimmy had resided and worked in New O
Zealand for 40 years and there is no evidence of him being domiciled in
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Hong Kong, the plaintiffs have not made out a case for Tsing Law to apply.
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Further discussion
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S 33. Mr Wong then sought to argue that even if Tsing Law did not S
apply the plaintiffs would still succeed in their claim for adverse
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possession under the Law of England. As after Mother passed away, the
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B B
license for the plaintiffs to occupy the Premises expired and thus, the
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plaintiffs have since continued to be in occupation of the Premises for over C
12 years and therefore satisfies the requirement for adverse possession
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therefrom.
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applied.
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these circumstances.
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A A
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35. I am therefore not persuaded that from the materials before
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me, there is any room for the notion of adverse possession and I am C
satisfied that this is not an appropriate case for default Judgment. The
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summons was accordingly dismissed with costs to the defendants.
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( Charles Wong )
H Deputy District Judge H
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st nd
Mr Ernest Wong, instructed by Peter K S Chan & Co, for the 1 and 2
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plaintiffs J
The 1st and 3rd defendants were not represented and did not appear
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