Cheung Ping Sum v. Wong Chi Hang As Administrator of the Estate of Wong Sun, Deceased

HCMP 1490/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1490 OF 2016

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BETWEEN

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D E C I S I O N

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APPLICATION

1.I have before me a summons (“the Summons”) taken out by the plaintiff on 14 June 2016 seeking, inter alia:-

(1)  an interlocutory injunction to restrain the defendant, pending the final determination of the originating summons herein, from interfering with, disturbing or otherwise affecting (whether personally or by his associates, servants, nominees, contractors, employees, other associated parties or otherwise howsoever) the plaintiff’s exclusive and peaceful occupation and quiet enjoyment of the property known as Flat B, 20/F, Far East Bank Mongkok Building, No 11 Nelson Street, Kowloon (“the Property”); and

(2)  an order to compel the defendant to amend the schedule of assets and liabilities of Wong Sun (黃燊), deceased (“the Deceased”) as at the date of death and the letters of administration dated 31 July 2013 accordingly.

2.In view of the nature of this application, I have decided to give my decision on it as soon as practicable together with brief reasons for the decision, which I now do.

BACKGROUND FACTS

3.The Deceased died intestate in Hong Kong on 6 April 2012.  He left surviving him the plaintiff (his widow) and 4 children (1 son, being the defendant, and 3 daughters).  The 4 children were born out of a marriage between the Deceased and his former wife, who passed away on 19 June 1988.

4.On 31 July 2013, letters of administration of the Deceased’s estate was granted to the defendant.  As can be seen from the schedule of assets and liabilities of the Deceased as at the date of death filed by the defendant in support of his application for the grant of letters of administration, the Property formed the major asset of the Estate.  The plaintiff estimates that the market value of the Property exceeds HK$3 million.

5.Prior to the death of the Deceased, he and the plaintiff resided in the Property as their matrimonial home.  The plaintiff has since continued to live in the Property.  According to the plaintiff, the defendant and his sisters did not live in the Property.  This is, I understand, disputed by the defendant, but nothing turns on this issue for the purpose of the present application.

6.The plaintiff says that her relationship with the defendant and his sisters was harmonious when the Deceased was alive and also for a short period of time after his death.  She trusted that they would look after her well and let the defendant handle matters relating to the estate of the Deceased.  For this reason, she executed a renunciation of administration of the Deceased’s estate dated 17 July 2013.

7.However, subsequent to the grant of the letters of administration of the Deceased’s estate to the defendant on 31 July 2013, the defendant and his sisters’ attitude to the plaintiff changed substantially.  According to the plaintiff, on many occasions, they came to the Property and threatened and harassed her with foul languages and words.  Some degree of violence was used resulting in, on one occasion, the intervention of the police.  For the present purpose, it is not necessary for me to set out all the allegations that have been raised by the plaintiff (which have not yet been answered by the defendant).

8.It is the plaintiff’s case that the defendant attempted to evict her from the Property on the ground that he wished to carry out renovation of the Property. In addition to posting two handwritten “eviction” notices on 1 June 2016 on her bedroom door (one of which informed her that the proposed renovation would commence on 15 June 2016 and required her to move out of the Property before that date), the plaintiff alleges, inter alia, that:-

(1)  During the period from the end of May to 13 June 2016, the defendant unplugged the refrigerator inside the Property without her knowledge or consent, and told her that she was not allowed to use the refrigerator because it was old and dangerous.

(2)  On 6 June 2016, the defendant caused the lock to the letter box of the Property to be changed without her knowledge or consent.

(3)  On 7 June 2016, she found, on her return to the Property, that some of her cups, teapots and personal belongings inside the Property had been dumped into a rubbish bin.

(4)  On 8 June 2016, she found, on her return to the Property, that the refrigerator had been removed and left in the corridor outside the Property.  Later, the defendant arrived at the Property with some police officers complaining about the messy and unhygienic state of the Property allegedly caused by her.

(5)  On 10 June 2016, she was informed by the caretaker of the building that some officers from the Food and Environmental Hygiene Department had visited the Property to investigate the alleged hygiene problems.

9.By reason of the matters aforesaid, the plaintiff took out the Summons on 14 June 2016.  The Summons first came before Chung J on 17 June 2016.  On that occasion, the learned Judge adjourned the summons for argument on 15 July 2016 upon the defendant’s undertaking that he would not, before 4:00 pm on 15 July 2016, do anything to interfere with, disturb or otherwise affect the plaintiff’s peaceful enjoyment, use and occupation of the Property.

10.The plaintiff says that notwithstanding the aforesaid undertaking, the defendant proceeded with carrying out the renovation works in the Property.

(1)  On 15 June 2016, the defendant instructed some workmen to demolish the wall tiles next to the shower space, leaving behind tiles, debris and stones scattered all over the bathroom.  It is not, however, clear whether the works were carried out before or after the undertaking given by defendant.

(2)  By a letter dated 21 June 2016 from the defendant’s former solicitors (Mandy Wan & Co) to the plaintiff’s solicitors, the defendant informed the plaintiff that “repairs and renovation works shall continue as scheduled despite [the plaintiff’s] insistence on staying in the Property”.

(3)  On 28 June 2016, the defendant resumed the demolition works of the bathroom.  The bathroom door was dismantled and removed, and further tiles, debris and stones were left scattering all over the floor of the bathroom.  Also, the electricity supply to the lights inside the bathroom was cut off.

11.It is under these circumstances that the present application came before me this morning.

12.For the record, I should mention that the defendant has not filed any evidence to resist the present application, and thus the plaintiff’s allegations are, at this stage, unanswered.

RESTRAINT AGAINST INTERFERENCE WITH PLAINTIFF’S oCCUPATION and use OF THE PROPERTY

13.At the hearing this morning, the defendant informed me that it is not his intention to evict the plaintiff from the Property but he wishes to carry out comprehensive renovation works in the Property because it is currently in a dilapidated and dangerous state.

14.On the other hand, the plaintiff’s intention, as I understand it from her counsel (Mr Tom Ng), is to remain in the Property until it is sold.  Indeed, it is her wish that the Property should be sold as soon as possible so that she could receive her entitlement in the Deceased’s estate under the Intestates’ Estates Ordinance.

15.Mr Ng accepts that the plaintiff does not have any interest in the Property, but contends that she has either a contractual licence or a bare licence to remain in the Property.  In so far as the alleged contractual licence is concerned, Mr Ng says that the defendant previously, on 3 occasions, indicated to the plaintiff that he would allow the plaintiff to stay in the Property or did not intend to evict her from the Property, and the plaintiff gave consideration by renouncing her right to apply for letters of administration of the Deceased’s estate.  However, the 3 incidents relied upon by Mr Ng all occurred after the grant of the letters of administration to the defendant on 31 July 2013.  On the evidence before me, I consider that the plaintiff’s case of contractual licence is plainly not sustainable.

16.I accept, nevertheless, that the plaintiff has raised an arguable case that she has a bare licence to occupy the Property.  I also accept that she is entitled to a reasonable notice of termination of the licence before she can be required to vacate from the Property.  Mr Ng has referred me to the decision of Goulding J in Hannaford v Selby (1976) 239 EG 811, where it was said that “the most important consideration [for the purpose of determining the length of the required notice] was a reasonable chance for the defendants to find alternative accommodation”.

17.Mr Ng submits that the length of the notice for termination of the licence should be linked to the date of the proposed sale of the Property, because the plaintiff has otherwise no money to secure alternative accommodation.  I am unable to see how this submission can be correct.  There are many variables affecting the time of sale.  The defendant might not be able to find a purchaser for various different reasons (including the fact that major renovation works are, I am told, currently being undertaken for the entire building, and the poor internal conditions of the Property).  The period of reasonable notice should be certain and ascertainable objectively by reference to the state of affairs as at the date of the notice, and should not be dependent on what may happen subsequent to that date.

18.At this interlocutory stage and on the basis of the existing evidence before me, I consider that 3 months’ notice would be reasonable to terminate the plaintiff’s bare licence.  In coming to this conclusion, I have taken into account the fact that the plaintiff had resided in the Property for many years prior to the death of the Deceased as their matrimonial home and has continued to do so since the death of the Deceased in April 2012, her financial conditions, and also that the Deceased had provided her with another accommodation in Guangzhou (namely, a flat of about 60 sq m in size).  On the above basis, I am prepared to grant an interlocutory injunction to restrain the defendant, whether by himself, his servants, agents, contractors or otherwise, for a period of 3 months from the date hereof from interfering with, disturbing or otherwise affecting the plaintiff’s peaceful occupation and quiet enjoyment of the Property.

19.I should make it clear that this order does not necessarily mean that the plaintiff has to vacate from the Property after 3 months.  Whether the plaintiff has to do so would depend on the defendant giving notice of termination of the bare licence.  Since it is not the defendant’s wish, as I understand it, to evict the plaintiff, I would urge the parties to try to reach an amicable solution so that the relevant renovation works can be carried out while the plaintiff may be permitted to reside in the Property until its eventual sale.

Amendments To the schedule of assets and liabilities of the Deceased as at the date of death and the letters of administration

20.The proposed amendments relate to 3 joint bank accounts held in the name of the Deceased and the plaintiff at OCBC Wing Hang Bank.  These have been omitted from the schedule of assets and liabilities of the Deceased as at the date of death.  According to the plaintiff, in order for her to receive, as the surviving joint account holder, the monies in those bank accounts, it is necessary that those joint accounts be properly disclosed in the schedule.

21.The defendant does not object to making the proposed amendments, and alleges that he has already made an application for that purpose.  However, I am unable to find, from the relevant probate file in HCAG009130/13, the application as alleged by the defendant.  Since I am satisfied that the defendant ought properly to disclose all assets held in the name of the Deceased (whether singly or jointly) as at the date of death in the schedule of assets and liabilities and the defendant has no objection to making the relevant amendments, I would make an order in terms of paragraph (2) of the Summons.  If the defendant has in fact already make an application to amend the schedule of assets and liabilities and the letters of administration, nothing further needs to be done by him.

22.I shall now hear the parties on the question of costs.

Mr Tom Ng, instructed by Tai, Tang & Chong, for the plaintiff

The defendant acting in person and present