Cheung Yau Hing v. Derek Ying Fien Cheung

HCA 1874/2010

[2020] HKCFI 1965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1874 OF 2010

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Before: Hon K Yeung J in Chambers

Date of Hearing: 3 August 2020

Date of Decision: 3 August 2020

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DECISION

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1.This is the hearing of the Plaintiff’s summons taken out under Order 13 rule 6 and Order 19 rule 7 for default judgment. The issue is whether in the circumstances of this case, the declarations sought may be granted in default of acknowledgement of service and defence.

2.The Writ herein was taken out on 23 December 2010.  According to the general indorsement thereon, the Plaintiff’s claim was for (1)  a declaration that the Defendant was not entitled to succeed to altogether 4 lots of land in the New Territories (one of which the Plaintiff calls the “1^st Property”, and the other 3 the “2^nd Property”); (2)  2 Approvals of Succession in favor of the Defendant (dated 13 March 1996 and 15 November 1995 and registered in the Land Registry by Memorial No N359245 and Memorial No YL655369 respectively (the “1^st Approval of Succession” and the “2^nd Approval of Succession”)) relating respectively to the 1^st Property and 2^nd Property be declared void and be vacated; and (3)  an order that the 1^st Property and 2^nd Property be vested in the Plaintiff.

3.On 26 April 2012, the Defendant filed his Acknowledgement of Service indicating that he intended to defend the action.

4.The action had then become dormant for a long period of time until 6 August 2018 when the Plaintiff filed a Notice of Intention to Proceed.

5.On 16 January 2019, the Plaintiff obtained leave to amend the Writ.  A Statement of Claim was filed on 18 January 2019.

6.According to the Statement of Claim:

(a)  Cheung Kam Yau (the “Deceased”) was the registered owner of the 1^st and 2^nd Properties;

(b)  By the 1^st and 2^nd Approvals of Succession, the Defendant succeeded to the 1^st and 2^nd Properties;

(c)  The Plaintiff is the grandson of the Deceased.  The Defendant is only the grandnephew of the Deceased;

(d)  Under “the Chinese customary law on succession and inheritance which is applicable to the estate of the Deceased” (§10 thereof), the Defendant was not entitled to inherit the Deceased’s estate;

(e)  At §11 of the Statement of Claim, the Plaintiff pleads that:

“ Both the [1^st Approval of Succession] and the [2^nd Approval of Succession] were obtained by unlawful means and should not have been approved.”

(f)  The Plaintiff seeks 4 Declarations and 1 order, that:

(i)  the 1^st Approval of Succession should not have been approved by the District Officer (North) and is void and of no effect;

(ii)  the 2^nd Approval of Succession should not have been approved by the District Officer (Yuen Long) and is void and of no effect;

(iii)  a declaration that the Defendant is not entitled to inherit the Deceased’s estate;

(iv)  a declaration that the Plaintiff as the only grandson of the Deceased is the only successor of the Deceased’s estate, and is therefore entitled to succeed to the same; and

(v)  an Order that the 2 Properties be vested in him.

7.On 1 February 2019, the Plaintiff obtained leave to serve the Concurrent Amended Writ to the Defendant outside jurisdiction.

8.No acknowledgement of service has been filed.  Nor any defence.

The relevant legal principles

9.Under Order 19 rule 7(1), although the words “the Court shall” are used, “the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment…” — see Hong Kong Civil Procedure 2020, Volume 1, paragraph 19/7/13.  It is further stated:

(a)  at §15/16/2 that:

“ The power to make binding declaration of right is a discretionarypower….A declaration can only be made after proper argumentand cannot be made merely on admissions by the parties whether in pleadings or otherwise … nor in default of compliance with rules of court.”

(b)  at §19/7/20 that:

“ It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently.

…

Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought …”

10.I note on the other hand, as has been explained at paragraph 15/16/2 of Hong Kong Civil Procedure 2020, Volume 1:

“ …the rule of the court that a declaration will not be granted whengiving judgment by consent or in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled.”

Discussions

11.In the Statement of Claim, the Plaintiff seeks 4 binding declarations and one order.  He seeks the de‑registration of the 2 Approvals of Succession as being void.  He seeks to strip the Defendant of his title to the 2 Properties.  He seeks an order that the 2 Properties be vested in him.  These are all important and binding declarations relating to land title. The Plaintiff’s application for the same has to be carefully scrutinized.

12.There are problems on the face of the Statement of Claim:

(a)  no particulars of the alleged “Chinese customary law on succession and inheritance” pleaded in §10 of the Statement of Claim) have been provided; and

(b)  the Defendant is alleged to have used “unlawful means” to obtain the 2 Approvals of Succession.  No particulars of the alleged “unlawful means” have been pleaded.

13.The action was first started in 2010.  A long dormant period followed.  While the practice of not granting declaratory relief in default may give way to the “the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled”, the circumstances of this case do not justify the departure of that practice.

Disposition

14.In all the circumstances, I refuse the application.  I make no order as to costs.

15.It is for the Plaintiff to decide whether to proceed to trial.

(Keith Yeung) Judge of the Court of First Instance High Court

Mr Chan Lap Tat Dickman, of Dickman L T Chan & Co, for the Plaintiff

The defendant was not represented and did not appear