Tang Kun Nin Tony and Others v. The Personal Representative of Cheng Wai Fong, Deceased and Others

HCMP 1253/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1253 OF 2017

(ON AN INTENDED APPEAL FROM DCCJ NO 1200 OF 2014)

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Before: Hon Cheung JA and Kwan JA

Dates of Written Submissions: 31 May and 13 June 2017

Date of Judgment: 11 August 2017

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.This is the renewed application of the plaintiff for leave to appeal to the Court of Appeal against the judgment of HH Judge Ko given on 23 February 2017 (“the Judgment”) after a five-day trial in September 2015. The judge dismissed the plaintiff’s claim that the defendants held three pieces of land in Fanling, New Territories (Lot Nos 1468, 2105 and 2106SBRP in DD 76; collectively “the Lots”) on trust for Hung Shing Temple (洪聖宮; “HST”), a t’ong formed in accordance with Chinese custom and within section 15 of the New Territories Ordinance, Cap 97. The individuals named as the plaintiff are the managers of HST. The plaintiff also applied for stay of execution pending the disposal of the intended appeal.

2.Leave to appeal was refused by the judge on 19 May 2017 (“the Leave Decision”).  The grounds of appeal advanced in the draft Notice of Appeal placed before this court are substantially the same as the grounds considered and rejected by the judge in the Leave Decision.

3.Having considered the papers, we decided to exercise the power under Order 59 rule 2A(5)(a) to determine this application without a hearing on the basis of the written materials before us.

4.Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal shall not be granted unless (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard.  It is well established that reasonable prospect involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

5.We do not propose to set out the background in detail.

6.In summary, HST is the registered owner of Hung Ling Miu Lot No 1 in DD 76, where a temple called Hung Shing Temple was situated.  The Lots are among the neighbouring lands of the Temple.

7.The plaintiff’s claim of beneficial interest in the Lots was based on common intention constructive trust and resulting trust.  The 2^nd and 3^rd defendants are the registered owners of the Lots, having acquired the lands from the 1^st defendant by an assignment dated 9 November 2007.  The defendants denied that the Lots have ever been subject to any trust.  As held by the judge, the onus is on the plaintiff to establish that HST has some beneficial interest in the Lots[1].

8.We reproduce the table annexed to the Judgment which gives a clear summary of the relevant transactions relating to the Lots from 1909 to 2009, taken from the memorials registered in the Land Office:

Relevant memorials respecting the defendants’ lands

Date	Lot No 1468	Lot No 2105	Lot No 2106
25.3.1909		Transferred to Leung in consideration of paying Crown rent [Memorial No 9083]
23.3.1928			Sold (together with other lands) to “Hung Shing Kung, (T) Leung Chi” in consideration of $198 [Memorial No 69624]
12.4.1929	Sold to Leung in consideration of $15 [Memorial No 72785]
5.7.1929			Transferred to Cheung in consideration of payment of Crown rent [Memorial No 73479]
22.6.1961	Succeeded by D1 and Tai [Memorial No 144447]
24.9.1970	Conveyance as a gift by Tai to D1 [Memorial No 166160]
4.7.1997			Court order vesting the land in D1 [Memorial No 404190]
9.11.2007	Assignment by D1 to D2 and D3 [Memorial No 08012503380216]

9.It is the plaintiff’s case that the persons who held one or more of the Lots successively at various times, namely, Leung (Leung A Chi or Leung Chi), Cheung (Cheung Tsai), the 1^st defendant and Tai (Tai Kam Chau) jointly, and eventually the 1^st defendant solely, all did so as trustees on trust for HST.  Leung was a Buddhist nun who had assumed the responsibility of looking after the Temple and Cheung, Tai and the 1^st defendant were her disciples.

10.The seven main factual issues are as summarised in the Judgment at §33.  The judge found the plaintiff’s case not substantiated by credible evidence and was rested on bare allegationsonly[2]. It was hollow and artificial[3]. And it was against the weight of the evidence in that it was contradicted by contemporaneous documentary evidence[4]. Of each of the seven main issues, the judge found that the plaintiff has failed to establish its case.  The paucity of evidence on the circumstances of the transactions meant there was no basis to infer any common intention[5].  Nor was there any credible evidence to show that HST had made any contribution or payment to invoke the presumption of resulting trust[6].

11.Most significantly, it is the plaintiff’s case that the Lots were held on trust for HST by various persons successively as evidenced by the memorials notwithstanding there was no mention in any of the memorials that they did so as trustees.  As pointed out by the judge, in 1928, the plaintiff’s ancestors arranged three pieces of land to be sold to Leung on trust for HST and they were put under Leung’s name as manager of HST (Memorial No 69624).  One of them (Lot No 2106SB) was sold to Cheung in 1929.  The remaining two pieces of land (Lot Nos 2256 and 2272B) remained registered under Leung’s name on trust for HST.  On Leung’s death, it was recorded that the 1^st defendant and Tai were “appointed as new manager for Hung Shing Kung in place of the Deceased” (Memorial No 144448).  In stark contrast, in respect of two of the Lots (Lot Nos 2105 and 1468) and Lot No 2107, it was recorded that 1^st defendant and Tai had succeeded Leung to become the owners but there was no mention of any trust arrangement (Memorial No 144447)[7].

12.The plaintiff’s predecessors were obviously aware of the mechanism under section 15 of the New Territories Ordinance by which a manager could be appointed to deal with the land of a t’ong.  There was no explanation (and the judge found it unlikely there could be any) why a different mechanism was adopted for the Lots if the intention was that Leung and the other individuals should hold the lands on trust for HST[8].  The judge found it is clear that the various persons had only acted as manager of HST in respect of Lot Nos 2256 and 2272B but not any of the Lots[9].

13.Given the above findings, one may wonder what viable grounds of appeal could possibly be advanced for the Court of Appeal to disturb the judge’s findings of fact.

14.In our view, none of the grounds put forward would have any reasonable prospect of success.

15.As we have mentioned earlier, the grounds in the draft Notice of Appeal placed before us are substantially the same as those argued before the judge.

16.We are in complete agreement with the judge for rejecting each of the grounds for the reasons given in the Leave Decision.  As the judge has put it, the plaintiff bore the burden of proof and it has failed to get off ground on its own case.  The attacks sought to be made regarding the admission of the 1^st defendant’s witness statement as hearsay evidence (she had passed away before trial), the reliability of 1^st defendant’s evidence, the 2^nd and 3^rd defendants’ acquisition of the Lots from the 1^st defendant are matters of little moment and could not possibly cure the deficiencies in the plaintiff’s own case.  There is also no basis for interfering with the judge’s discretion in awarding costs to the 1^st defendant’s estate.

17.This application should not have been brought.  As it is wholly without merit, we dismiss the summons and pursuant to Order 59 rule 2A(8) further order that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

18.Costs of this application should follow the event.  We think it is unreasonable for the plaintiff to renew the leave application and it is appropriate to order them to pay the costs of the 2^nd and 3^rd defendants on an indemnity basis.  We have considered the defendants’ statement of costs.  We would reduce the fees claimed from $55,500 to $47,500.

19.The costs order and gross sum assessment are orders nisi.  Any party seeking to vary the orders nisi shall lodge a written submission within seven days hereof, failing which the orders shall become absolute.

Written submissions by Ms Lorinda Lau, instructed by Leung Kin & Co, for the Plaintiff (Applicant)

Written submissions by Wong Fung & Co, for the 2^nd and 3^rd Defendants (Respondents)