Leung Shui Lun v. District Lands Office of Tai Po Lands Department and Others

DCMP 4/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4 OF 2016

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DECISION

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Introduction

1.The 1^st – 4^th defendants seek an order to strike out the plaintiff’s originating summons filed on 4 January 2016 by virtue of Order 18 rule 19 of the Rules of District Court, Cap 336H (“the Rules”). 

Background

2.The plaintiff claims herself as “the principal tenant of her father Leung Koon Yau” of No 5, Pak Ngau Shek Ha Tsuen, Lam Tsuen, Tai Po, New Territories, Hong Kong. The 2^nd – 4^th defendants are the staffs of the 1^st defendant.

3.The dispute is premised on the structures of 1C, 1D and 1E (“the Structures”) erected on the Remaining Portion of Lot 95 in DD 8 of Ha Pak Ngau Shek, Tai Po, New Territories, Hong Kong (“the Land”).  The plaintiff claims the Structures were assigned with squatter control numbers more than 59 years ago.  Recently, the Structures were in need of repair and maintenance and such works have been commenced by the end of 2014.  

4.The 1^st defendant was of the view that the Structures were new built houses on the Land, the 1^st defendant issued notices of demolition pursuant to section 12 of the Land (Miscellaneous Provisions) Ordinance, Cap 28 (“the Cap 28 notices”) on various occasions. The lessee or the owner was requested to demolish the illegal structures within a certain period of time or the Government will re-enter and take action to demolish the newly built structures. The plaintiff was uncontended.   

5.The plaintiff seeks an order for injunction against the 1^st – 4^th defendants, it would be best to reproduce the relevant part of the originating summons,

“1. An injunction restraining the 1^st Defendant whether by himself or his agent or servant or otherwise howsoever from preventing or obstructing the Plaintiff or interfering with the Plaintiff:-

(a) On her keeping the structures of 1C, 1D, 1E of the Remaining Portion of Lot No. 95 in D.D.8 of Ha Pak Ngau Shek, Tai Po, New Territories, Hong Kong (“the Property”) which was built on the private agricultural land with modification of tenancy permit issued by the government with an assigned squatter control number permitting its existence at least 59 years ago with Tai Po district lands office aerial photographs shown, and which rates and government rent have been kept paying or by then government policy waiver from demolition;

(b) On her maintaining the repair and the good conditions of the Property from demolition;

(c) On her carrying out the remedial works of the Property from normal wear and tear.

2. An injunction restraining the 2^nd defendant[1] whether by himself of his agent or servant or otherwise howsoever from holding himself out to others to be the person entitled to:

(a) make representation to the 1^st Defendant and others that the Property is not assigned any squatter control number;

(b) deregister the assigned squatter control number of the Property;

(c) disallow provisional or permanent existence of the Property;

(d) prevent, obstruct or interfere the Plaintiff in repairing the Property from normal wear and tear;

(e) demolish the Property.”

The 1^st – 4^th defendant’s application

6.The 1^st – 4^th defendants submitted, the Land is an old schedule agricultural lot and is governed by a Block Government Lease. The said Block Government Lease contained a restrictive covenant that the lessee or any person during the term shall not erect or construct any building or structure without approval.  There were clusters of structures erected on the Land, only some of them, not the Structures, were assigned with squatter control numbers.  The Structures were known to be unauthorized structures on government land which had existed for a long time.  

7.It is a known public policy that the Government tolerates the existence of unauthorized structures on government land unless found them to be under construction. The plaintiff admitted the Structures were undergoing construction since December 2014.

8.The 1^st – 4^th defendants submitted, the Structures were being rebuilt whilst the previous existing structures have been demolished. The 1^st defendant issued to the lessees or owners of the Structures on three occasions pursuant to section 12 of the Land (Miscellaneous Provisions) Ordinance, Cap 28, requesting the lessees or owners of the Structures to demolish them, or the Government will re-enter the Land and to demolish it. 

9.Relying on Order 18 rule 19(1)(a) of the Rules, the 1^st – 4^th defendants apply for an order to strike out the plaintiff’s originating summons on the grounds that (i) it discloses no reasonable cause of action; (ii) it is scandalous, frivolous or vexatious; and (iii) or otherwise an abuse of process of the court.

The principles of striking out

10.Order 18 rule 19(2) of the Rules states, “no evidence shall be admissible on an application under paragraph 1(a)”. The commentary of the Hong Kong Civil Procedure 2016, paragraph 18/19/3 reads:-

“It is directed against the admission of evidence which seeks to support or disprove the contention that no reasonable cause of action or defence is disclosed. Hence, on an application to strike out an originating summons as disclosing no reasonable cause of action, the prohibition against adducing evidence on the application itself does not apply to an affidavit already served in support of the originating summons which is intended to disclose the cause of action.”

11.The commentary of the Hong Kong Civil Procedure 2016, paragraph 18/19/4 further states the requirement for striking out under Order 18 rule 19(1)(a),

“It is only in plain an obvious cases that the court should exercise its summary powers to strike out the indorsement on an writ or any pleading under this rule. There should be no trial upon affidavit. ……. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just impossible, not just improbable, for the claim to succeed before the court will strike out.”

12.The principles of Order 18 rule 19(1)(b) have been summarized in the commentary of the Hong Kong Civil Procedure 2016, paragraphs 18/19/7 and 18/19/8: The court has a general jurisdiction to expunge scandalous matter in any record or proceedings.  For frivolous claim means when it is incapable of reasoned argument, without foundation or where it cannot possibly succeed.  A proceeding is vexatious when it is oppressive and/or lacks bona fides.  Order 18 rule 19(1)(d), in abuse of process of the court means abusing the mechanism of court process.

Analysis

Reasonable cause of action

13.On this ground, only the originating summons and the 1^st affirmation of the plaintiff in support can be considered, no evidence can be received. 

14.The plaintiff’s complaints against the 1^st – 4^th defendants are twofold: firstly, the Cap 28 notices should not have been issued because the Structures were assigned with one or more than one squatter control numbers.  The plaintiff was entitled to repair and maintain the Structures from wear and tear by carrying out the said repair works.  Secondly, the plaintiff was seeking the 1^st defendant to reinstate the squatter control number(s) of the Structures by reason that such number(s) has been deregistered upon misrepresentations made by the 2^nd – 4^th defendants to the 1^st defendant.

15.In other words, the plaintiff is alleging the squatter control number(s) assigned by the 1^st defendant was/were missing at time of dispute. Her cause of action is misrepresentation, though without particulars as of the category of such, ie. fraudulent or negligent. Because of this, the plaintiff seeks an order to reinstate the squatter control number(s) and an injunction against the 2^nd – 4^th defendants of the relief thereof. This is a valid cause of action, not a case where the pleadings are obvious bad that renders the plaintiff’s claim unsustainable which ought to be struck out.

Whether the plaintiff’s claim is scandalous, frivolous or vexatious

16.The only problem with the plaintiff’s claim is lack of evidence. Be it a valid cause of action, the plaintiff should come with at least some evidence to start off her claim. When the plaintiff is alleging there was originally a squatter control number(s) assigned to the Structures, she should have pleaded the particulars in the originating summons. This is an obvious case that the plaintiff had failed to do so. The plaintiff never pleaded the squatter control number(s) in the originating summons or deposed the particulars in her supporting affirmation. The plaintiff only assumes the squatter control number(s) existed as she had deposed in paragraph 7 thereof,  

“Some old New Territories indigenous villagers confirmed to me that majority of the structures and/or houses were about or over 100 years on the Lot. In the 1960s to 1970s when there just began rule and policy of squatter control, the squatter control office simply registered the squatters by giving them squatter control numbers. The criteria were that those squatters covered by metal sheets or mixtures of metal sheets and wood were assigned with squatter control numbers. Those already existed old structures with tile roofs in the New Territories were excluded from squatter registration by the squatter control office resulting in no record in the squatter control office of Housing Department and in the District Lands Office after the squatter control office was later taken over the Lands Department.”

17.The above is far from sufficient event evidence to commence her claim. The best evidence of the plaintiff is the saying of “some old indigenous villagers” who are not properly identified.  She further assumes squatter control number(s) must have been assigned because the Structures were very old ones. It is absurd to infer the Structures (or previously structures 1C, 1D and 1E) being old ones must be subject to a squatter control number(s) automatically. In absence of this important piece of evidence, the plaintiff’s claim has no foundation and cannot not properly succeed.

18.For allegation of fraud, it must be supported with sufficient evidence. It must then be specifically and the party making the allegation must give full particulars of them.  A party should not be permitted to plead a vague and unparticularised case of fraud with hope to make good after discovery. (See Hong Kong Civil Procedure 2016,  paragraph 18/8/13) The plaintiff’s claim was defective without the particulars of misrepresentation.

19.Purely on this ground, I have no hesitation to conclude the plaintiff’s claim is vexatious and frivolous.

Abuse of process

20.The plaintiff pleaded her claim in the capacity as “the principal tenant of her father Leung Koon Yau of No 5, Pak Ngau Shek Ha Tsuen, Lam Tsuen, Tai Po, New Territories, Hong Kong”. There are a total of 7 Cap 28 notices issued to the lessee/owners of the Land. The Land has a total of 7 lessees / owners, Leung Sau Mau was one of them. Leung Koon Yau, the plaintiff’s father and Leung Tin Hoi were holding 1/3 undivided shares of the Land as administrators of the estate of Leung Sau Mau.

21.Leung Koon Yau is one of the two administrators of the estate of Leung Sau Mau, he was unable to grant any power of attorney to the plaintiff pursuant to section 7(2) of the Powers of Attorney Ordinance, Cap 31 because power of attorney has no application to the functions which the donor as a trustee or personal representative. By reason of this, the plaintiff has no locus standi to sue and the originating summons amounts to an abuse of process of the court.

Conclusion

22.With reasons of the foregoing, I am driven to the conclusion that the plaintiff’s originating summons should be struck out.

23.I therefore make the following orders:-

(i) The plaintiff’s originating summons filed on 4 January 2016 be struck out with costs to the 1^st – 4^th defendants, to be taxed if not agreed.

(ii) The costs of the plaintiff’s originating summons, including the 1^st – 4^th defendants’ summons filed on 1 February 2016, be payable by plaintiff to the 1^st – 4^th defendants, with certificate for counsel, to be taxed if not agreed.

Ms Miriam Siu, instructed by Lam Pui King & Co, for the plaintiff

Mr Stanley Ng, instructed by Department of Justice, for the 1^st to 4^th defendants