Tsang Yuet Mui, in Her Capacity As the Personal Representative of the Estate of Tang Yip Sang , also known as Tang Ip Sang, Deceased v. Wan on, in His Capacity As the Personal Representative of the Estate of Tang Yung

HCMP 2314/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2314 OF 2012

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JUDGMENT
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1.The plaintiff commenced these proceedings on behalf of her late husband’s estate, and sought to succeed to half interest in various lots of land in Lantau Island held in the name of Tang Yip Sang’s late aunt, Madam Chong, pursuant to section 17 of the New Territories Ordinance, Cap 97. The defendants are the daughters of Madam Chong. The first one never appeared, and second one entered appearance but indicated no intention to defend.

2.One of the lots of land named in these proceedings was Lot 124 of DD4, Mui Wo.  Trial was held and evidence was heard.  Judgment was handed down on 23 September 2014, whereby declaration of the plaintiff’s entitlement to half interest in these lots was granted.  The judgment was sealed on 10 October 2014.

3.By summons dated 12 March 2015, the plaintiff applies to amend the originating summons and the judgment pursuant to O.20, rr.7, 8 and 10 of the Rules of the High Court, Cap 4A.

4.What happened was that when the plaintiff’s solicitors caused the registration with the Land Registry after the judgment, they were informed that a portion of Lot 124 has actually been reverted to the Government on 9 June 2007 and the relevant register has been closed.  Further transaction, they were instructed, would have to refer to the register of the remaining portion of the lot.

5.By summons dated 18 September 2015, the plaintiffs seek to amend the above summons in that they now seek amendment of the judgment pursuant to O.20, r.11, in other words, the slip rule.

6.Procedurally, an application under O.20, r.11 for amending a judgment made in court should be taken out by way of notice of motion and heard in the open court: see Hong Kong Civil Procedure 2016 at §20/11/3.  Having said that, what I need to ensure is that the interested parties have the opportunity to appear and to make their cases, and that the public has access to the hearing.  The stance of the defendants in this matter is mentioned above.  I am satisfied with the service in respect of these applications.  This hearing is open to the public. On this basis, I see no risk of compromise of the interest of the parties or the public by allowing the present application to proceed in chambers (so as not to waste further costs).

7.The court has discretion to correct an error in order or judgment arising from accidental slip or omission.  This would receive a liberal construction, and include slip or omission on the part of the legal representative.  The discretion may be exercised even after the order or judgment has been perfected.  The discretion to correct would likely be exercised, if the court would have ordered what is being sought without hesitation, had that been sought during the original hearing.  See Man Ping Nam v Man Fong Hang (No 2) (2007) 10 HKCFAR 140.

8.In the present case, the lot in question was wrongly identified from the outset because part of it has already been reverted to the Government well before the commencement of the originating proceedings.  Whilst the plaintiff’s legal representative apparently appreciated the logic of rectifying the subject matter claimed for the purpose of amending the judgment, and hence the first summons, the reality is that the plaintiff is seeking judgment in respect of what remains of the same lot of land.  The rectification seeks to reduce the extent of the same lot of land that the plaintiff is entitled to get.  I agree with counsel that an analogy may be borrowed from a situation of error as to quantum of claim in Da Silva v Dias-Azedo [2010] 4 HKLRD 599.  All the more important is that no prejudice to the interested parties could be conceived as a result of the amendment.

9.In the circumstances, I grant an order in terms of the second summons to amend the first summons, and an order in terms of the first summons as amended.  There be no order as to costs.

Ms Carol WONG, instructed by Messr Christine M Koo & Ip for the plaintiff

The 1^st and the 2^nd defendants, in person, absent