Man Choi Yuk v. Secretary for Justice

DCCJ5162/2017

[2018] HKDC 612

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5162 OF 2017

-------------------------------

-------------------------------

-------------------------------

DECISION

-------------------------------

INTRODUCTION

1.This is the defendant’s application to strike out the plaintiff’s Statement of Claim (“SOC”) on the ground that it discloses no reasonable cause of action. 

BACKGROUND

2.This action was commenced by the plaintiff on 21 November 2017. The SOC was filed and served on the same day.  It concerns a piece of land registered in the Land Registry as San Tin Lot No 702 in Demarcation District No 102 in Yuen Long, New Territories (“Disputed Land”). An old house which situated on the Disputed Land has allegedly been occupied by the plaintiff and her family all along (“the House”).

3.There existed another action, namely DCMP 3180/2015, between one Mr Man Kai Tak (“Man”) and the plaintiff herein, concerning the ownership of the Disputed Land.  In that action, Man is claiming possession of the Disputed Land and the plaintiff is counterclaiming that she had adversely possessed the Disputed Land: see SOC §§3(r)-(t), 4 & 5.

4.In the SOC, the plaintiff avers the following that:-

“(a) The plaintiff and her family have been occupying the House for over a century.

(b) According to the Schedule of the Block Government Lease of San Tin Demarcation District No 102, the plaintiff’s grandfather Man Shiu Cheung (文兆祥) (who was also known as Man Siu Cheong (文兆昌)) owned the land at Lot 702 with “house” thereon at a yearly government rent of HK$0.50.

(c) The plaintiff’s grandfather died on 16 February 1934. His sons (the plaintiff’s uncles) Man Shau Lam (文壽林) also known as Man Chau Lam (文籌林) and Man Chi Lam (文芝林) and the plaintiff’s father Man Chik Lam (文植林) also known as (文籍林) succeeded the estate and land properties of her grandfather including Lot 702 and the house thereon by way of Succession dated 13 March 1934 registered in the Land Registry by Memorial No 89388 according to the traditional Chinese customes as indigenous villagers of Fan Tin Tsuen at San Tin District of the New Territories.

(d) The plaintiff's father Man Chik Lam died on 9 May 1982 and the plaintiff applied for and obtained a grant of Letters of Administration (Grant No HCAG1928/1987) from the Probate Registry of the Supreme Court of Hong Kong on 22 May 1987.

(e) The Schedule of Property annexed to the said Letters of Administration showed that the estate of the plaintiff's father consists of Lot 702 so that the defendant is and was at all material times entitled to administer her father's estate including Lot 702.

(f) The plaintiff was born on 26 April 1949 and is 66 years old now. All along, her grandfather, father and family including herself have been occupying Lot 702 and the House thereon as the rightful owner thereof without any interruption or objection from the plaintiff or any other person being the owner or alleged occupier of Lot 703.

(g) The House at some stage collapsed and became ruins. In or about 1988, the plaintiff intended to apply to the DLO, Yuen Long for approval for redevelopment of the ruined House on Lot 702.

(h) The plaintiff instructed surveyor to prepare survey plan for submission to DLO to confirm the position of the ruined House where she proposed to rebuild within the original boundary of Lot 702.

(i) DLO however informed the plaintiff that the House which she and her family all along occupied situated within the boundary of Lot 703.

(j) According to the Schedule of the Government Lease of San Tin lots in Demarcation District No 102, Lot 703 was owned by Man Shiu Shau (文兆夀) who was the ancestor of MAN KAI TAK.

(k) MAN KAI TAK mentioned in paragraphs 6 and 7 of his Affirmation filed herein on 1 December 2015 in DCMP 3180/2015 that his father Man Yuen Chun succeeded Lot 703 from Man Shiu Shau on 17 December 1969 and his father assigned Lot 703 to him by way of Deed of Gift on 24 May 1991.

(l) The Schedule of the Government Lease shows that the owner of Lot 703 should pay the government rent of initially HK$0.50 which was subsequently reduced to be HK$0.25 per year.

(m) The amount of government rent should be calculated according to the area of the land in question. The amount of government rent payable for other lots such as San Tin Lot No 730 and 731 were also reduced to HK$0.25 per year.

(n) The “A” rent roll book at DLO shows that those Lots Nos 730 and 731 with government rent reduced to HK$0.25 were described as “latrine” (expressed with a letter “L”) but not as a “house” (expressed with a letter “H”).

(o) The plaintiff's family have been paying such yearly government rent of HK$0.50 for the “House” at Lot 702.

(p) On 30 June 1988, the plaintiff wrote to DLO to enquire about the omission of record about the location and boundary of Lot 702 and requested DLO to provide the land in the vicinity for rebuilding house within same area.

(q) DLO then negotiated with the plaintiff about the possible area in the government land for building similar house thereon to compensate the plaintiff for loss arising from omission of record about the location and boundary of Lot 702. However, DLO and the plaintiff cannot find any suitable place in the government land for building similar house thereon up to now. Before DLO and the plaintiff could find suitable alternative place in the adjoining government land for building house as compensation, the plaintiff has been and is still occupying the land where the House (and its ruins) all along situate, which MAN KAI TAK and DLO regard as Lot 703.

(r) District Office made mistake in allocating the current location and boundary of the House of the plaintiff's family at Lot 702 to be such of Lot 703 in the Schedule of the Government Lease. The plaintiff and her family have been paying such yearly government rent of HK$0.50 for the House and occupying the House as well as the land (believed to be Lot 702) on which it or its ruins all along situate for over a century without interruption or objection from MAN KAI TAK or his father or grandfather or anyone on their behalf.

(s) Alternatively, the time limit prescribed under Limitation Ordinance, Cap 347 for MAN KAI TAK, his father or grandfather to take legal action to claim possession of Lot 703 had expired so that the title of Man Shiu Shau, Man Yuen Chun and MAN KAI TAK in respect of Lot 703 had extinguished under Section 17 of Limitation Ordinance, which is matter not yet resolved in DCMP 3180/2015.

(t) The plaintiff is entitled to have possessory title of the land (believed to be Lot 702) where House and its ruins situate, now known as the position of Lot 703, which is not yet resolved in DCMP 3180/2015.” (§3 of SOC)

5.It is the defendant’s case that:-

(1)   the dispute as to the location of Disputed Land, ie whether it is within Lot 702 or Lot 703) and the plaintiff’s occupation of the Disputed Land is a private dispute between the plaintiff and Man in DCMP 3180/2015;

(2)   As to the allegation make in the District Lands Office (“DLO”) in the SOC, they are convoluted and disclose no reasonable cause of action in law.

DISCUSSION

6.The law on striking out is trite and is not necessary for me to repeat them here.  In this contest, reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered: Hong Kong Civil Procedure 2018, §18/19/5.

7.The plaintiff’s case as appeared in the SOC can be summarized into the following three main allegations:-

(1)   the Disputed Land is within the boundary of Lot 702 of which she is the registered owner.  Alternatively, if it is within the boundary of Lot 703 (which belongs to Man), she had been in adverse possession of the same: see SOC, §§1, 3-6;

(2)   there is a mistake in the DLO record in relation to location and boundary of Lot 702: see SOC, §§7 & 9;

(3)   DLO has not be been able to provide alterative government land to the plaintiff to build a house: see SOC, §8.

8.In relation to the first allegation, I agree with Miss Ling, counsel for the defendant, that this is a private land dispute between the plaintiff and Man.  It is a matter which should be resolved in the other action, namely, DCMP 3180/2015.  I agree that the defendant is not a party to the private land dispute and should not be dragged into the matter.

9.As to the second allegation, it is not clear exactly what was the cause of action the plaintiff is relying on.

10.Even assuming there was a mistake made in the DLO record in relation to the location and boundary of Lot 702 (which is not admitted by the defendant), it is clear that the mistake was made in the exercise of a public function by a public authority. Thus, any cause of action would lie in an action in public law rather than in private law.  In any event, I notice that the plaintiff is not suing the defendant for the alleged breach of any contract which existed between herself and the DLO.  Alternatively, if the plaintiff is alleging negligence against the defendant in making the alleged mistake, it has been admitted by the plaintiff in the SOC that she had discovered the alleged mistake back in 1988.  The limitation period, which is 6 years, for the plaintiff’s action on tort has therefore long been expired in 1994: see Limitation Ordinance, (Cap 347), s 4(1).  Thus, any cause of action lies in negligence would had been time-barred long ago.

11.In relation to the third allegation, if the plaintiff’s dissatisfaction with the DLO lies in its failure to offer any alterative government land for her to build a new house on, this will involve with an exercise of discretion of a public authority.  Such exercise of discretion will fall squarely within the public law domain and amendable to judicial review. It should not form the subject matter of a private law action: see for example Anderson Asphalt Limited & Ors v The Secretary for Justice [2009] 3 HKLRD 215, §39-57.

12.For the plaintiff’s claim against the defendant for the recovery of land under the prayer of the SOC, again, such cause of action has also been time-barred since 2000 ie 12 years after 1988: see Limitation Ordinance, s 7(2).

13.Lastly, the plaintiff in her written submission states that she is not claiming for the recovery of land in this case: (see plaintiff’s skeleton submission §22). However, she claims that she has a cause of action in “possession of land and wrongful interference or deprivation of right for possession of land and rebuilding thereof”: (see plaintiff’s skeleton submission §15). I agree with Miss Ling that if the plaintiff is claiming against the defendant for recovery / possession of land, first, it is unclear what cause of action it is based on; and second, such cause of action has has long been expired since the year 2000.

14.As to the literal wrongful interference of land, again, it is unclear what the claim is based on.  If it is based on a trespass to land, then it is not supported by the plaintiff’s pleading.  Further, it is for the alleged deprivation of the right to possession of land and for rebuilding, again it is not clear what cause of action this is based on.  The plaintiff claims that there has been “ongoing negotiation and communication” with the DLO in finding a piece of land for her.  If so, this is a classic example of a public officer in exercising his discretion in the discharge of his duties.  If the plaintiff is dissatisfied with that decision, it is for her to bring a judicial review action against the DLO to review his decision and not to start a private case allegedly for the deprivation of right to land or to rebuild.  If         it is for want of a decision on the part of the DLO that she is complaining, then she could seek a mandamus order compelling the DLO to make a decision by way of judicial review.

15.In the aforesaid premises, I find that the plaintiff’s claim clearly disclosed no reasonable cause of action and should be struck out for the above reasons.  I therefore will order the SOC filed on 21 November 2017 be struck out with costs in favour of the defendant, such costs to be taxed if not agreed, with certificate for counsel.  

16.Lastly, I noted that after the hearing on 27 April 2018, the plaintiff has, through her solicitors, filed a notice of discontinuance against the defendant in this action.

Mr Jerry Jim of Jim & Co., for the plaintiff

Miss Ebony Ling, instructed by Department of Justice, for the defendant