Liu Yun Hop and Liu Kwan Kit Suing As Liu Sui Hing Tso v. Liu Tsik Hing

HCA 1479/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1479 OF 2016

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.The 1^st  and 2^nd plaintiffs are, or were, tenants‑in‑common of a piece of land in the New Territories.  An action has been brought in the names of the 1^st and 2^nd plaintiffs against the defendant for trespass to the land.  According to the 1^st plaintiff, the 2^nd plaintiff has passed away, and no personal representative of the estate of the 2^nd plaintiff has ever been appointed.

2.The 1^st plaintiff now applies, by way of an ex-parte summons dated 2 September 2016, for (inter alia) the following relief:

(1) a declaration that the 2^nd plaintiff is either dead or presumed to be dead; and

(2) Liu Kwan Kit be appointed to represent the estate of the 2^nd plaintiff for the purpose of carrying on these proceedings under Order 15, rule 6A of the Rules of the High Court, Cap 4A.

3.The issues which I have to decide are:-

(1) whether the court has jurisdiction to grant a declaration of death (or presumed death) of the 2^nd plaintiff and, if it has jurisdiction, whether it should, in the exercise of its discretion, grant such declaration; and

(2) whether Liu Kwan Kit should be appointed to represent the estate of the 2^nd plaintiff for the purpose of carrying on these proceedings.

BACKGROUND FACTS

4.The 1^st plaintiff (Liu Sui Hing Tso) is a Chinese customary Tso in the New Territories.  It currently has two managers, namely, Liu Yun Hop and Liu Kwan Kit.

5.The 2^nd plaintiff, Liu Yun Hop and Liu Kwan Kit all belong to the Liu clan. According to a family tree prepared by Liu Yun Hop’s wife based on information appearing on some ancestral tablets kept at the home of Liu Yun Hop’s mother:-

(1) the 2^nd plaintiff is a 16^th generation descendant of the Liu clan;

(2) Liu Yun Hop and Liu Tim Lam (Liu Kwan Kit’s father) are brothers and 19^th generation descendants of the Liu clan;

(3) the 2^nd plaintiff and Liu Yun Hop/Liu Tim Lam belong to two different branches of the Liu clan starting at the 14^th generation, with a common ancestor at the 10^th generation of the Liu clan; and

(4) the 2^nd plaintiff does not have any male descendant.

6.The piece of land registered in the Land Registry as Lot No 829 in DD 52 (“the Land”) was at all material times, and is, held in the names of the 1^st plaintiff and the 2^nd plaintiff as tenants-in-common in equal shares.

7.In this action, the 1^st plaintiff complains that the Land has been trespassed upon by the defendant since no later than 2007, and claims against the defendant for delivery up of vacant possession of the Land, an injunction to restrain the defendant from entering or crossing the Land, and damages for trespass.

8.This action has been instituted in the names of both the 1^st plaintiff and the 2^nd plaintiff because, I am given to understand, the 1^st plaintiff considers, or has been advised, that the 2^nd plaintiff is a necessary party to the action.

9.It is the 1^st plaintiff’s case that the 2^nd plaintiff has passed away or should be presumed to have passed away having regard to the following matters:-

(1) the relevant Block Crown Lease, in which the 2^nd plaintiff’s name already appeared in the Schedule thereto, is dated more than 110 years ago (27 March 1905);

(2) Liu Yun Hop, who is now 64, has told Liu Kwan Kit that he does not know and has never heard of the 2^nd plaintiff;

(3) the mother of Liu Yun Hip, who is now 94, has confirmed to Liu Kwan Kit that she likewise does not know and has never heard of the 2^nd plaintiff;

(4) Liu Chun Kui, a village representative who is now 66, has told Liu Kwan Kit that he does know anyone by the name of “Liu Tsik Hing”; and

(5) the North District Office has confirmed by letter dated 13 June 2016 that it does not have any record of “Liu Tsik Hing”.

10.According to Liu Kwan Kit, in view of the fact that the Hong Kong Identity Card Number of the 2^nd plaintiff is not available, it has not been possible to conduct any specific or particular search at the Births and Deaths Registry or the Probate Registry to check whether the death of the 2^nd plaintiff has been reported or registered, or any grant of representation of the estate of the 2^nd plaintiff has been issued.  Only a general search against the name of “廖集興 (Liu Tsik Hing)” at the Births and Deaths Registry could be conducted, and the reply was “No record found on information provided”.

11.It appears that no personal representative of the estate of the 2^nd plaintiff has ever been appointed (although there is no direct evidence to this effect). The 1^st plaintiff says that no descendant(s) of the 2^nd plaintiff could be found or identified despite inquires.  Further, the Official Administrator has informed the 1^st plaintiff’s solicitors, by letter dated 16 May 2016, that he would not agree to act as the administrator of the estate of the 2^nd plaintiff.

THE COURT SHOULD NOT GRANT THE DECLARATION SOUGHT

12.On the evidence before the court, it is, I believe, a fair inference to draw that the 2^nd plaintiff must have passed away.

13.It is, however, a different matter whether the court can, or should, grant a declaration of death or presumed death of the 2^nd plaintiff in these proceedings.  The circumstances in which the court might properly grant a declaration or decree of death or presumed death of a person were explained by Godfrey J (as he then was) in Re the Estate of Yu Leung Fong, HCMP 1130/1991 (26 April 1991):-

"1.  … People disappear; maybe as a result of a tragedy at sea, or in the air; maybe for other reasons, or for reasons unknown. It may well be impossible, at a material moment, to say with certainty of a particular person that he is in fact dead. As time goes by, and he is neither seen nor heard of, the likelihood of his having died will become more and more a moral certainty…

2.  If the propositus has disappeared, how is the law to deal with all these matters? The answer depends on the particular problem to be solved.

3.  If the problem is matrimonial, statute provides that the spouse of the propositus may apply to the court for a decree of presumption of death and dissolution of the marriage: see s.26 of the Matrimonial Clauses Ordinance, Cap. 179 (under this section, 7 years' absence is treated as prima facie evidence of death).

4.  If the problem concerns the assets of the propositus, so that it is necessary for representation to be granted to his estate, any creditor or beneficiary may apply to the court for leave to swear to the death of the propositus. This procedure is available when it appears likely that the propositus is dead but the death cannot be proved by certificate in the ordinary way: see Rule 52 of the Non-contentious Probate Rules, made under the Probate and Administration Ordinance, Cap. 10. If the court is satisfied, on the evidence, that the propositus has died, leave will be given tothe applicant to swear to the death in the oath leading to the grant; and the applicant will be granted representation to the estate of the propositus on that basis.

5.  If the problem concerns the interest, or possible interest, of the propositus in a trust fund, so that the distribution of the fund is held up by the uncertainty as to whether the propositus is alive or dead, the trustees, or a beneficiary, may apply to the court for an order that the trustees are to be at liberty to distribute the fund on the footing that the propositus is dead (this is known as a "Benjamin" Order): see In re Benjamin [1902] 1 Ch 723.

6.  If the problem arises in other proceedings in which a party has to prove the death of the propositus, then, where there is no acceptable affirmative evidence that the propositus was alive at some time during a continuous period of 7 years or more and it is proved (1) that there are persons who would be likely to have heard of him over that period; (2) that those persons have not heard of him; and (3) that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that the propositus died some time within that period, and the party upon whom the burden falls of proving the death of the propositus may rely on that presumption: see Prudential Assurance Company v. Edmonds (1877) 2 App Cas 487 …

7.  So, depending on the nature of the problem, there are a number of different ways in which the court can help resolve difficulties caused by uncertainty about the death, or the date of death, of a particular person. There is, however, no inherentjurisdiction in the court to entertain proceedings ex parte in which the applicant claims a declaration that a particular person is to be presumed to be dead.

8.  It is the erroneous belief that such a jurisdiction does exist which has led to the institution of the present proceedings…”

14.In that case, a property was held by the applicant and her father as joint tenants.  The father worked as a waiter on board a vessel which caught fire while at sea on 29 August 1976.  He fell into the sea but his body was never found, and he had not been seen or heard of since.  In 1991, the applicant instituted proceedings, by way of an ex parte originating summons, seeking a declaration that the father “was presumed dead on 29 August 1976”, in order to “regularize her position as to the property”.  The learned judge held that the court had no jurisdiction to entertain those proceedings, and therefore struck them out.  In the course of his judgment, the learned judge stated that “[i]t is not the function of the court to settle the doubts of owners of property about the state of their title, in the absence of any other party interested in the matter.”

15.In Wang Din Shin v Nana Kung alias Nina T H Wang, CACV 24/1998 (14 January 1999), in the context of a probate action to propound a will in solemn form, Godfrey JA reiterated that no declaration that a missing person was dead could legitimately be made.

16.The present case is factually distinguishable from Re the Estate of Yu Leung Fong, in that the application for a declaration of death is made in the context of an inter partes action against an alleged trespasser, although the application itself was made by way of an ex parte summons.  It is also distinguishable from Wang Din Shin which was a probate action, and the Court of Appeal there pointed out that the applicant could, and should, have applied for leave to swear to the death of the missing person (pursuant to Rule 52 of the Non-contentious Probate Rules, Cap 10A).  It may also be argued that when Godfrey J said that the court had no “jurisdiction” to make a declaration of death or presumed death, the learned judge was not using that word in the strict sense that the court had no power to make the declaration, but simply that the court would not exercise such power as a matter of its settled practice.  See the following observation of Pickford LJ in Guaranty Trust Company of New York v Hannay [1915] 2 KB 536 at 563 (cited with approval by Lord Scott of Foscote NPJ in Re Chime Corporation Limited, FACV 6/2004)

“The word ‘jurisdiction’ and the expression ‘the Court has no jurisdiction’ are used in two different senses which I think often leads to confusion. The first and, in my opinion, the only really correct sense of the expression that the Court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject-matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e., that although the Court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.”

17.I am by no means satisfied that the court has jurisdiction (in the strict sense) to make a declaration that the 2^nd plaintiff is dead or is to be presumed dead in the present ex parte application.  It is, however, not necessary for me to reach a final view on this issue.  Nor would it be appropriate for me to do so in view of the fact I have not heard arguments from both sides.

18.Even if the court has jurisdiction in that strict sense, I do not consider it appropriate to grant the declaration sought.  In this regard, it may be noted that a declaration normally takes the form of a statement of some legal right or obligation, not a statement of fact (such as that a named person has passed away).  Where the death of a named person is a fact relevant to the resolution of any cause or matter, generally that fact has to be proved by evidence, and the court would make a finding (sometimes with the help of the presumption of death) on the issue which may then lead to its conclusion on the cause or matter in its judgment.

19.In the present case, on the footing that the death of the 2^nd plaintiff is a fact which is required to be proved before the court can properly exercise its power to appoint Liu Kwan Kit to represent the estate of the 2^nd plaintiff for the purpose of carrying on these proceedings under Order 15, rule 6A of the Rules of the High Court, there would, in my view, be no need for the court to make the declaration sought.  It would be sufficient for the court to make an order under that rule without any accompanying declaration, assuming that it would otherwise be proper to make the order.  This is the matter which I shall now turn to consider.

THE COURT SHOULD NOT GRANT THE REPRESENTATION ORDER SOUGHT

20.It is clear that the purpose of making a representation order under Order 15, rule 6A of the Rules of the High Court is to overcome the difficulties of bringing proceedings where the person in whose name the action would be brought has died without a grant of probate or administration being made (or known to have been made) to his estate.  If an order under this rule is made, a person shall be appointed to represent the deceased’s estate for the purpose of the proceedings under rule 6A(4).

21.It goes without saying that it is for an applicant for a representation order to justify why the court should invoke the power under Order 15, rule 6A. Where the order is not necessary, or reasonably necessary, in the circumstances of the case, the court should not, in my view, make the order sought.

22.In the present case, the 1^st plaintiff and 2^nd plaintiff are (or were) tenants-in-common of the Land, each being entitled to exclusive possession of the Land vis-à-vis third parties.  While the 2^nd plaintiff or his personal representative is undoubtedly a “proper” party to the present action, it is not immediately apparent why he is a “necessary” party.  When this point was raised with Mr Wong in the course of the hearing, he stated that without the representation order, the 1^st plaintiff would, or might, have difficulties in settling the present action with the defendant. Mr Wong also said that the interest of the 2^nd plaintiff’s estate could be taken care of through the representation sought.  Neither of those matters seems to me to be an answer to the question whether a person representing the estate of the 2^nd plaintiff is a necessary party to this action.  When pressed, Mr Wong contended that it was, but no authority or analysis was provided for that contention.

23.Mr Wong further admitted, in the course of his submissions, that there might be existing beneficiaries to the estate of the 2^nd plaintiff (eg his distant relatives) who could obtain a grant of representation, but it would involve “much effort and costs to find the true beneficiaries”.  In my view, the purpose of Order 15, rule 6A is not to provide a shortcut to enable a person who has no interest in the estate of a deceased person to be appointed as his representative for the purpose of legal proceedings.  In view of the fact that the present application is made on an ex parte basis by the 1^st plaintiff, it is, I consider, the duty of the 1^st plaintiff to satisfy the court that (i) without the representation order the 1^st plaintiff will not be able to proceed with the action on his own against the defendant, and (ii) he has taken all reasonable steps to trace the beneficiaries to the 2^nd plaintiff’s estate.  I do not consider that the 1^st plaintiff has satisfied the court of either matter.

24.In all, I am not prepared, in the exercise of my discretion, to make the representation order sought by the 1^st plaintiff.

DISPOSITION

25.The 1^st plaintiff’s ex parte summons dated 2 September 2016 is accordingly dismissed.  I make no order as to costs.

Mr Wong King Fai, of Tang, Wong & Cheung, for the 1^st plaintiff