Cheung Shun and Antoher v. Cheung Shek Wan and Others

HCA 1044/2004

[2021] HKCFI 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1044 OF 2004

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Before: Deputy High Court Judge Winnie Tsui in Chambers

Date of Hearing: 13 May 2021

Date of Decision: 13 May 2021

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DECISION

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Introduction

1.This is the pre-trial review hearing of the action.  The trial is fixed for 10 August 2021, with 2 days reserved.

2.The 1^st and 2^nd plaintiffs are represented by Mr Tommy Cheung, counsel, at today’s hearing.

3.The 1^st, 2^nd and 3^rd defendants are not legally represented and are absent today.

4.The case was ordered to be set down for trial at a case management conference before master on 23 December 2020.  All the three defendants were absent at that hearing.  The pre-trial review date and trial dates were fixed at the listing office in the absence of the defendants.  A notice of hearing was sent to all parties by the court in February this year.

5.Given the court notice, I was satisfied that the defendants have had notice of today’s hearing.  I directed that the hearing do proceed in their absence.

6.Having reviewed the papers before me, I have come to the view that the trial is not ready to proceed as scheduled.  Hence I would vacate the trial dates in August.

7.I set out my reasons below.  The plaintiffs should take proactive steps to address the issues that are identified before attempting to re-apply to set down the case for trial.

8.There are two main issues. 

9.First, service of these proceedings on Cheung Shek Wan, the present 1^st defendant.  Pursuant to master’s order dated 3 July 2020, leave was granted to the plaintiffs to substitute Cheung Shek Wan as the 1^st defendant in this action, in place of the then 1^st defendant, Chang Fook Sun (“the substitution order”).  Chang Fook Sun had been the 1^st defendant in this action since commencement. 

10.The second issue relates to the plaintiffs’ claim for an order that the subject land “be divided up into suitable portions as the Court shall think fit”.  See prayer para 4 of the re-re-amended statement of claim.  The subject land is a plot of land situated at Sha Tau Kok, New Territories (“the land”).

Procedural history

11.The plaintiffs commenced the action in 2004.  The 1^st and 2^nd plaintiffs, Chang Fook Sun (the former 1^st defendant), the 2^nd and 3^rd defendants at that time held and continued to hold the land as tenants-in-common in the respective shares of ¼, ¼, ¹/₆, ¹/₆ and ¹/₆ until 2015.  In that year, Chang Fook Sun assigned his ¹/₆ interest to Cheung Shek Wan.  The other holdings have remained in the same ownership.  Hence, from 2015 onwards, the 1^st and 2^nd plaintiffs, Cheung Shek Wan, the 2^nd and 3^rd defendants have been the co-owners of the land.  Chang Fook Sun ceased to be an owner.

12.As originally pleaded, the plaintiffs’ case was that in about 1997, Chang Fook Sun (the former 1^st defendant) and the 2^nd defendant constructed a house, a fence and walls on the land without the plaintiffs’ consent.  This amounted to ouster of the plaintiffs from the occupied area.  The plaintiffs sought prohibitory injunctive relief against Chang Fook Sun and the 2^nd defendant and, further, an order that they do dismantle the structures.  The plaintiffs also sought the “divided up” relief.  But there was no mention of the Partition Ordinance in the pleading at all.

13.The action was progressing to the stage of exchange of witness statements in around 2006, when all parties were legally represented.  It had then gone to sleep till about 2018, when the plaintiffs took further substantive steps in the action.  All the defendants acted in person after the revival of the action.  

14.The substitution order was made on 3 July 2020.  The terms are as follows:

“1. The 1^st and 2^nd Plaintiffs be at liberty to amend the Amended Writ of Summons as per copy annexed to the Summons by substituting Cheung Shek Wan as 1^st Defendant in place of the above-mentioned Chang Fook Sun and to file and serve the same within 21 days from the date hereof;

2. All pleadings, orders, witness statements and documents filed do stand;

3. Service of all pleadings, orders, witness statements and documents to Cheung Shek Wan be dispensed with;

4. Cheung Shek Wan being the 1^st Defendant be bound by all previous orders made; and

5. Costs of this application be costs in the cause.”

15.The basis of the application, as disclosed by the plaintiffs’ supporting affirmation, was that Cheung Shek Wan has succeeded Chang Fook Sun as the owner of the ¹/₆interest in the land.

16.There was a subsequent order made by master on 3 November 2020 extending the time of service of the re-amended writ.

17.The re-amended writ, endorsed with the re-re-amended statement of claim, was eventually served on Cheung Shek Wan as the new 1^st defendant on 10 November 2020 by ordinary post.

First issue

18.There is plainly an issue with the service of the re-amended writ on Cheung Shek Wan. Notwithstanding that master’s order adopted the terminology of “substituting”, as a matter of analysis, Cheung Shek Wan was joined as a new party to the action.

19.In his oral submissions, Mr Cheung informed the court that the plaintiffs’ case against Cheung Shek Wan is his continuing of Chang Fook Sun’s ouster of the plaintiffs from the occupied area.  Cheung Shek Wan is the son of Chang Fook Sun.

20.But none of these facts are pleaded in the latest version of the statement of claim.

21.Being a new party to the action, service of the re-amended writ should be effected on Cheung Shek Wan pursuant to Order 10, rule 1.  That has not been done.  Mr Cheung accepted that at today’s hearing.

22.In other words, at present, these proceedings have not yet been served properly on Cheung Shek Wan at all.

23.Furthermore, Mr Cheung accepted that there is a need to amend the re-re-amended statement of claim to properly reflect the plaintiffs’ intended cause of action against Cheung Shek Wan.

24.Mr Cheung accepted that in the circumstances, it would not be feasible to proceed with the trial as scheduled.

25.I should add that there may also be a need to re-visit the terms of the substitution order, as its overall effect seems to be treating Cheung Shek Wan as the 1^st defendant as if he had been joined from the commencement of the action.  But that should not be the case here.  It seems to be a case where the plaintiffs sought to discontinue the action against the former 1^st defendant and pursue a new cause of action against the new 1^st defendant.

Second issue

26.The second issue concerns the plaintiffs’ claim for “dividing up” the land.  This is effectively a claim under the Partition Ordinance.  Yet, as of now, there is no plea to that effect.

27.Mr Cheung informed the court that the plaintiffs have not complied with the Partition Rules and have never served any document on the Director of Land as required by the Rules.

28.In the expert report adduced by the plaintiffs, there are two short paragraphs referring to a proposed division plan, where the land is divided up into six plots.  Apart from that, there is no evidence before me at all explaining the basis of such proposed division.  The six proposed plots are similar in size, but different in shapes, with one of them being a strip of land along the boundary of the land.  There are five co-owners and it is not clear why six plots are proposed and who should get which plot.

29.Even in the absence of any opposition from the defendants at the trial, I fail to see how the court can proceed to grant any relief on the basis of the materials presently available.

30.Mr Cheung submits that the plaintiffs will ask the court to decide as it sees fit.  That is simply not feasible.

Conclusion

31.For the above reasons, I consider, and Mr Cheung agrees that, the trial cannot proceed as scheduled, as there are substantive steps that need to be taken to get the case ready.

32.There is no prospect that these steps can be completed in the next three months, given in particular that Cheung Shek Wan is a new party and it is uncertain what steps he may take in this action.

33.I therefore order that the trial dates in August 2021 be vacated.  The action be adjourned to a case management conference to a date to be fixed before a master, with 30 minutes reserved.  The parties should at least 7 days before the case management conference report to master in writing how the issues identified above should be resolved.

34.The action was not ready to be set down back in December 2020.  This pre-trial review ought not to have taken place.  I therefore make no order as to costs of today’s hearing.

Mr Tommy Cheung, instructed by FONGS, for the 1^st and 2^nd plaintiffs

The 1^st, 2^nd and 3^rd defendants were not represented and did not appear