A A

B B
DCCJ 3273/2016

C
[2020] HKDC 857 C

D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E

CIVIL ACTION NO 3273 OF 2016

F F

G G
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H
BETWEEN H
LAM KWOK KIN (林國健) 1st Plaintiff
I I
LAM KWOK FUNG (林國鎽) 2nd Plaintiff
J and J

THE ESTATE OF JAM LUN CHIN also

K K
known as JIMMY CHIN (陳金倫),
DECEASED 1st Defendant
L L
MELVIN RAYMOND CHIN,
MYRON DAVID CHIN AND ZELJAN
M M
ALEXANDER UNKOVICH AS
ADMINISTRATORS OF THE ESTATE
N N
OF RITA CHIN, DECEASED,
THE EXECUTRIX OF THE ESTATE
O OF CHIN RAY (陳博禮) also known O
nd
as RAYMOND CHIN, DECEASED 2 Defendant
P P
MAI CHIN AS EXECUTRIX OF
THE ESTATE OF CHAN SHUN TAE
Q Q
(陳博義) also known as ROY CHIN,
DECEASED 3rd Defendant
R R
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S S

T T

U U

V V
 -2-
A A

B B
Before: Deputy District Judge Charles Wong in Chambers

C
Date of Hearing: 28 September 2020 C
Date of Decision: 28 September 2020
D D
Date of Reasons for Decision: 12 November 2020

E E

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F F
REASONS FOR DECISION
G ---------------------------------------- G

H H
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

12 May 2020 (the “Summons”) for default judgment against the

J J
defendants in respect of:-
K K

(a) A declaration that each of the defendants has lost their

L L
right to bring any action to recover any part of the
M premises known as 7th Floor, No 23A, Fuk Wing Street, M

Kowloon, Hong Kong (the “Premises”) by virtue of

N N
section 7(2) of the Limitation Ordinance (Cap 347) (the
O “LO”); and O

P P
(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

Premises has been extinguished and the plaintiffs have

R R
acquired all possessory right, title and interests,
S including the right to exclusive physical occupation of S

and in the Premises.

T T

U U

V V
 -3-
A A

B B
2. After hearing counsel for the plaintiffs, I dismissed the

C
application with costs to the defendants. The following are my reasons. C

D D
Principles on O 13 r 6 and O 19 r 7 application

E E

3. The court’s power under O 19 r 7 is discretionary. When

F F
declaratory relief is sought, courts will scrutinise the application carefully
G and do not hastily grant the same: Hong Kong Civil Procedure 2020, supra, G

§19/7/20. It is not the normal practice of the court to make a declaration

H H
without a trial. This, however, is only a rule of practice which should only
I be followed when a plaintiff can obtain the fullest justice to which he is I

entitled without the declaration he seeks: Lam Shing Shou v Lam Hon Man
J J
& Others (unrep HCA 361/2001, [2002] HKLRD (Yrbk) 94) at §§12-13.
K K

4. Where declaratory relief for possessory title under the LO is

L L
sought, the courts in some cases have considered the evidence placed
M before them: Wu Chi Kwong v Estate of Cheung Man Yau [2008] M

3 HKLRD 504 §§5-6, Fung Shek Wa v Chang Lai Yue (unrep, HCA
N N
2258/2013, 18 September 2014) §§34-42 and Hong Kong Civil Procedure
O 2020, supra, §19/7/11. O

P P
The plaintiffs’ pleaded case
Q Q

5. The plaintiffs are brothers. Their maternal grandfather Jimmy

R R
Chin, also known as Jam Lun Chin (“Grandfather Jimmy”) and maternal
S grandmother, Margaret Fong Shee Chin, (“Grandmother Margaret”) both S

resided and passed away in Auckland, New Zealand.

T T

U U

V V
 -4-
A A

B B
6. Grandfather Jimmy and Grandmother Margaret have four

C
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
D D
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

is believed to have resided in Burma/Myanmar.

F F

G 7. Mother is married to Lam Sun Yock (“Father”) and they have G

four children. (1) Lam Kwok Kin, (P1), (2) Lam Kwok Ki, (3) Lam Kwok
H H
Hing and (4) Lam Kwok Fung (P2). All four children were born in the
I 1950s. I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V
 -5-
A A

B B

C C

Chin Jam Lun 陳金倫 (Grandfather Jimmy)

D (Estate: D1) D

E Margaret Fong Shee Chin 鄺芳瑞 E

(Grandmother Margret)

F F

G G
1st Child
Chan Bik Wen 陳碧雲 3rd Child 4th Child
H H
(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)

L L
3rd Child
Lam Kwok
M Hing M
林國慶 4th Child
Lam Kwok Fung
N N
林國鎽 (P2)

O O

P P
8. In 1959, Grandfather Jimmy acquired the Premises and
Q allowed Mother to occupy the same together with her siblings. Q

R R

S S

T T

U U

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 -6-
A A

B B
9. Grandfather Jimmy passed away intestate on 7 May 1964 in

C
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
D D
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

for the Premises’ utilities.

F F

G 10. Mother passed away in 1996. Father and the plaintiffs G

occupied the Premises and paid for all the outgoings. Only they had the
H H
key to the only entrance door to the Premises and no one had access to the
I Premises without their consent. I

J J
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
L L
owners.
M M

12. At no time since the death of Grandfather Jimmy in 1964 did

N N
Uncle Ray or Uncle Tae (including their estate) lay any claim to the
O Premises. Nor did any of them pay any visit to the same. At no time since O

1964 was the plaintiffs’ possession premised on any consent on behalf of

P P
Grandfather’s estate, Uncle Ray (including his estate) or Uncle Tae
Q (including his estate). Q

R R
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

Intestates’ Estate Ordinance on 7 October 1971, the devolution of the

T T
Premises would have been governed by Tsing Law whereby Uncle Ray
U U

V V
 -7-
A A

B B
and Uncle Tae, the surviving male descendants of Grandfather Jimmy,

C
would have been entitled to the Premises. C

D D
Other relevant facts
E E

14. Grandfather Jimmy resided and worked as a cook in New

F F
Zealand. He died intestate at the age of 57 in New Zealand on 7 May 1964.
G Efforts of searching for grant of probate or letter of administration in both G

New Zealand and Hong Kong were in vain. His death certificate shows
H H
that he was born in Canton, China. He married at the age of 16 and resided
I in New Zealand for 40 years. I

J J
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
L L
granted in favour of Melvin Raymond Chin, Myron David Chin and Zeljan
M M
Alexander Unkovich (D2).

N N
16. D2 filed a Defence and Counterclaim but subsequently filed a
O O
Notice of Withdrawal and Discontinuance to withdraw their whole defence

P and discontinue their whole counterclaim. A withdrawn defence does not P

prevent a plaintiff from obtaining judgment under O 19 r 7: Hong Kong
Q Q
Civil Procedure 2020, supra, §19/7/3.

R R

17. Uncle Tae also resided in New Zealand and passed away on
S S
23 August 1993. Probate of his estate was granted in favour of his wife
T Mai Chin (D3). T

U U

V V
 -8-
A A

B B
18. Due service of the Re-Amended Writ is substantiated by

C
evidence of service and all the defendants have been in default of their C
defence to the Re-Amended Statement of Claim.
D D

E The plaintiffs’ Case for Adverse Possession E

F F
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.
H H
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

there is adverse possession under s 13(1) of the LO.

J J

K 20. To establish adverse possession, there must be shown to have K

both factual possession and requisite intention to possess, and the

L L
possession must be adverse to the owner: Powell v McFarlane (1977) 38 P
M & CR 452 at 470-472 and Wong Tak Yue v Kung Kwok Wai & Anor (No 2) M

(1997-98) 1 HKCFAR 55.

N N

O 21. The plaintiffs’ counsel Mr Ernest Wong (“Mr Wong”) O

submits that as Grandfather Jimmy passed away intestate on 7 May 1964,

P P
which was before the coming into force of the Intestates’ Estates
Q Ordinance (Cap 73) on 7 October 1971 and as such, devolution of the Q

Premises would have been governed by Tsing Law (Chinese law and
R R
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
T T
entitled to the Premises. See: Man Leung v Man Yuet Kwai [2013] 2
U U

V V
 -9-
A A

B B
HKLRD 1122 at §143, Liu Ying Lan v Liu Tung Yiu & Anor (unrep HCA

C
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).
D D

E 22. Before his death, Grandfather Jimmy had allowed Mother to E

occupy the Premises together with her siblings. However, such license is
F F
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
H H
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
J J
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

run therefrom, ie 7 May 1964.

L L

M 23. Mr Wong submits that on the facts as pleaded, there has been M

continuous and exclusive physical possession of the Premises by the

N N
plaintiffs (together with Father and Mother who later passed away) as its
O owners since 7 May 1964. The family paid for all the utilities and are the O

only persons who have the key to the entrance of the Premises and no other
P P
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
R R
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

the Premises 20 years later, ie 7 May 1984.

T T

U U

V V
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A A

B B
24. Mr Wong further submits that in the alternative, at the very

C
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
D D
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
F F
supported by Affirmations filed by the plaintiffs with supporting
G documents including copies of the government rates and utilities bills and G

residential proof.
H H

I 25. To sum up the plaintiffs’ argument, as at the date of issuance I

of plaintiffs’ Writ, ie 6 July 2016, by virtue of the LO, the defendants must
J J
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,
L L
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.
N N

O 26. Mr Wong submits that while it is not the court’s normal O

practice to make a declaration without a trial, in the present case, the

P P
plaintiffs’ case is meritorious, the declarations in question are the only and
Q substantial relief sought by the plaintiffs, their terms are not wider than Q

absolutely necessary or more than what the plaintiffs are entitled to, the
R R
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
T T
which he is entitled: Hong Kong Civil Procedure 2020, supra, at §§19/7/14
U U

V V
 - 11 -
A A

B B
and 19/7/20. See also: Lam Shing Shou v Lam Hon Man & Others, supra,

C
at §§11-17, Wu Chi Kwong v Estate of Cheung Man Yau, supra, at §§7-11. C

D D
Discussion

E E

27. The plaintiffs’ claim for adverse possession is built upon the
F F
basis that when Grandfather Jimmy died intestate, Mother being a female
G decedent had no interest in the Premises under Tsing Law. G

H H
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
J J
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

evidence that Grandfather Jimmy had lived in the Premises or anywhere in

L L
Hong Kong. The issue arises as to whether Tsing Law applied to overseas
M Chinese, like Grandfather Jimmy who did not live in Hong Kong. M

N N
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

HCMP19/1956 dated 25 July 1969 Briggs, J at P 1 §1 “It is not disputed

P P
that the distribution of the estates of Chinese persons domiciled in Hong
Q Kong who die intestate is governed by Ching Law. This matter is dealt Q

with in the judgment of the Full Court in this action….”

R R

S S

T T

U U

V V
 - 12 -
A A

B B
30. The Court of Final Appeal in Suen Toi Lee v Yau Yee Ping

C
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
D D
of Tsing Law. Whilst this case is mainly on the true construction of the

E word “concubine” it was decided in the context of the Intestate Estates E

ordinance, Cap 73. I find the general principle as set out in this case on the
F F
application of Tsing Law applies to the present case. §§36 to 38 Bokhary
G PJ states:- G

H H
“ Domicile

I 36. It is said in para. 14 of the Strickland Report that it I

“would seem that with such exceptions as are mentioned later
the application of Chinese law and custom should be confined to
J J
those Chinese who are domiciled in Hong Kong”. None of the
exceptions which the Strickland Report then goes on to mention
K are material to the present case. K

37. At the time when the Chinese law and custom of

L traditional China applied in the Mainland, the Hong Kong courts L
would not have been doing anything narrow by confining direct
M application of such law and custom to Chinese persons M
domiciled in Hong Kong. In regard to Chinese persons
domiciled in the Mainland, there was scope, so long as such law
N and custom applied in the Mainland, for the Hong Kong courts N
to apply such law and custom to them indirectly via the rules of
private international law (even though not directly as Hong
O O
Kong domestic law). Upon the abrogation of such law and
custom in the Mainland, such scope naturally disappeared. And
P it would be plainly wrong for a Hong Kong court to extend P
direct application of such law and custom to anyone domiciled
in the Mainland after such law and custom had been abrogated
Q in the Mainland. Q

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
T
the cases. T

U U

V V
 - 13 -
A A

B 39. Whatever exceptions to this general rule may exist or B

have existed, I hold that no such exception ever existed when it
C came to capacity to enter into a union of concubinage. I so hold C
for the following reasons. As I pointed out earlier in this
judgment, the Hong Kong courts have, justifiably as I see it,
D proceeded on the view that a concubine’s status is that of a wife, D
albeit only a secondary wife. Her status is therefore a
E
matrimonial one, and unions of concubinage are therefore E
matrimonial unions. Under the rules of private international law
applicable in Hong Kong, capacity to enter into a matrimonial
F union and therefore to acquire a matrimonial status is F
determined by reference to the law of each party’s place of
antenuptial domicile. There was a time when Hong Kong
G G
permitted Chinese persons to enter into unions of concubinage.
But it never conferred on them capacity to enter into
H matrimonial unions, whether of concubinage or of any other H
type, if they had no such capacity under the law of their place of
antenuptial domicile outside Hong Kong. They had to be
I domiciled in Hong Kong or in some other place where the law I
conferred such capacity on them. The fact of their Chinese
J ethnicity was not enough on its own. Hong Kong law does not J
treat, and has never treated, Chinese law and custom as the
personal law of all ethnic Chinese everywhere irrespective of
K domicile.” (My emphasis) K

L L
31. The authorities have clearly set out two elements for Tsing

M
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
P P
Hong Kong, the plaintiffs have not made out a case for Tsing Law to apply.

Q Q
Further discussion
R R

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
T T
possession under the Law of England. As after Mother passed away, the
U U

V V
 - 14 -
A A

B B
license for the plaintiffs to occupy the Premises expired and thus, the

C
plaintiffs have since continued to be in occupation of the Premises for over C
12 years and therefore satisfies the requirement for adverse possession
D D
therefrom.

E E

34. I rejected this argument for the following reasons:-

F F

G (1) It is not the plaintiff’s pleaded case that English Law G

applied.
H H

I (2) Even if English Law applied, and on the basis that I

Grandfather Jimmy and Grandmother Margret died

J J
intestate, Mother and Aunt Bon may also have a
K beneficial interest in the Premises. If so, Aunt Bon K

being an interested party should also be joined.

L L

M (3) Further, Mr Wong fairly conceded that if under English M

Law Mother had a beneficial interest in the premises;

N N
when she died intestate her interest would have passed
O to her children, including the plaintiffs. In that case, O

the plaintiffs would have had a beneficial interest in the

P P
Premises. If so, the plaintiffs would have to make good
Q the legal basis, if any for adverse possession under Q

these circumstances.
R R

S S

T T

U U

V V
 - 15 -
A A

B B
35. I am therefore not persuaded that from the materials before

C
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
D D
summons was accordingly dismissed with costs to the defendants.

E E

F F

G G

( Charles Wong )
H Deputy District Judge H

I I
st nd
Mr Ernest Wong, instructed by Peter K S Chan & Co, for the 1 and 2
J
plaintiffs J

The 1st and 3rd defendants were not represented and did not appear
K K

The 2nd defendant withdrew and discontinued on 13 March 2020

L L

M M

N N

O O

P P

Q Q

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S S

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