Man Loy Hei v. The Personal Representative of Man Cheuk Hi, Deceased

DCCJ 1687/2020

[2021] HKDC 1027

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1687 OF 2020

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Before:  Deputy District Judge Charles Wong

Date of Hearing: 4 June 2021

Date of Decision:  4 June 2021

Date of Reasons for Decision: 27 August 2021

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REASONS FOR DECISION

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INTRODUCTON

1.The plaintiff has taken out an application for default Judgment under Order 19, rule 7 of the Rules of the District Court (Cap 336H) by way of summons dated 9 February 2021.

2.The applicant,Madam Tang Wai Chun, the administratix of Man Chuk Hi (文卓熙) also known as Man Cheuk Hei (文灼熙) by a summons dated 31 March 2021 (the “Summons”) applies to be joined as 2^nd defendant to the present action under O 15, r 6 (2) (b) of the Rules of the District Court, Cap 336H, (the “RDC”).

The plaintiff’s claims

3.The plaintiff has made an adverse possession claim for the possessory title as a “squatter” of 17 pieces of land in Demarcation District Nos. 102, 104 and 105 (collectively, the “Lots”) in San Tin, Yuen Long, New Territories.[1]

4.The Lots are registered in the sole name of Man Cheuk Hi.[2]

5.The plaintiff claimed initially[3] against Man Cheuk Hi, and subsequently[4] “the Personal Representative of Man Cheuk Hi (文灼熙), deceased”.

6.In the Statement of Claim, the plaintiff alleges that:-

(1)  Man Cheuk Hi, who was is the plaintiff’s uncle, left Hong Kong in about 1946.[5]

(2)  Since 1965, the plaintiff’s predecessors and then the plaintiff have been in continuous exclusive possession of the Lots, and hence the plaintiff has acquired possessory titles of the Lots.[6]

7.The applicant’s case is that she is the lawful wife of “Man Cheuk Hi”, who was also known as Man Cheuk Hei, 文卓熙and文灼熙in Chinese.[7]

8.The applicant’s husband passed away on 23 March 1997, and the applicant has been the sole administratrix of her husband’s estate (the “Estate”) since 9 February 2001.[8] 

9.It is the applicant’s case that, the applicant’s husband, as opposed to the alleged uncle of plaintiff, was the sole registered owner of the Lots. The applicant in her capacity as the sole administratrix of the estate of Man Cheuk Hi filed and served the Acknowledgment of Service of the Amended Writ with intent to defend on 20 January 2021 (the “AS”).[9]

10.The plaintiff disputed the applicant’s locus to file the AS, purportedly on the ground that the applicant is not the administratrix of the defendant, and regardless of the AS, proceeded to apply for default judgment for possessory titles of the Lots.

11.The applicant then took out a summons applying to join as a 2^nd defendant to the present action.

12.Both summonses were fixed before this court to be heard on the same date. As the default judgment application is subject to the determination of the joinder application, it is appropriate to determine the applicant’s application before proceeding to the plaintiff’s application for default judgment.

BACKGROUND

Legal Principles on Joinder Application

13.Under O 15, r 6(2)(b) of the RDC: -

(1)  O 15, r 6(2)(b)(i):-

“… any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined or adjudicated upon” (emphasis added)

(2)  O 15, r 6(2)(b)(ii):-

“any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

14.The test is whether there is a bona fide defence and proper question to be tried as between the plaintiff and the applicant that is necessary or just and convenient for the resolution between them as well as between the plaintiff and the defendant herein. 

15.In Pang Kwok Lam v Schneider Electric Asia Pacific Ltd (unrep, HCPI 90 of 2010, 5 January 2011), Master Marlene Ng (as she then was) stated at §§72 & 73 as follows:-

“72.     In my view, given the objectives of Order 15 rule 6(2)(b) of the RHC outlined above, the court’s power to join parties is a generous one, and the court’s attitude is permissive although it must still ensure that the joinder is necessary and/or just having regard to the statutory criteria.  According to Hong Kong Civil Procedure 2011 Vol 1 para 15/6/1 at pp 285-286, ‘[the] power given by the rule is, however, widely exercised … though the addition of new parties may cause new expense and necessitate new evidence …  But, generally speaking, the court will make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute …  The court will not, however, decide questions of right on applications under the rule …’

73. I am persuaded that the relevant approach to be adopted is whether there is a bona fide claim and a proper question to be tried as between the Plaintiff and Law/BLC that is necessary or just and convenient for resolution between them as well as between the Plaintiff and the Defendant in the present proceedings.” (emphasis added)

16.There is no requirement for an applicant to show merit of his or her case under this rule at this stage.  In Wong Shan Shan v The Incorporated Owners of Yue Wah Mansion (unrep, HCA 1086/2013, 28/1/2015) at §§31-33, Deputy High Court Judge Kent Yee (as he then was) stated the following:-

“31. To start with, I agree with Mr Li that under Order 15 r 6, there is no requirement for an applicant to show merit of his case. Nor am I provided with any authorities to convince me that merit is a relevant consideration in a joinder application.

32. In my judgment, a necessary party must be allowed to be joined as a party irrespective of the strength of his case. At the very least, he should be allowed to take part in the proceedings. It is a breach of natural justice if a necessary party is denied any participation altogether. It defies fairness and justice if a legal/ beneficial owner of a property is not allowed to contest an action whereby a squatter claims that his legal title/ beneficial interest has been extinguished. Summary judgment and/ or striking out applications can be made if deemed appropriate further down the road so that a judgment can be entered against and made binding on the intervener.

33. In the premises, I refuse to deal with the merit. The action is still very much in its infancy and the parties’ respective cases can be subject to further changes and development. It is neither necessary nor appropriate for me to pass any comment on the materials presently before me other than those germane to the joinder application.” (emphasis added)

17.In applying the test, Hon Peter Ng J in Advanced Connection Ltd v Able Technology (Hong Kong) Ltd and Others [2018] HKCFI 2465 stated the following:-

“22. Mr Clark, for the Plaintiff, submits that on a joinder application, the burden is therefore on the parties opposing to establish that it is plain and obvious that the Plaintiff has no case against the proposed Defendants. This court agrees.

24. Given the issues are one of fact, it is difficult to see how the court can resolve such factual issues on a joinder application. Adopting the same approach as in an application to strike out, the court will not conduct a trial on affidavit evidence, and disputed facts were to be taken in favour of the party sought to be struck out:Hong Kong Civil Procedure 2019 Vol 1 para 18/19/4.” (emphasis added)

18.Even if the interest shown by an applicant is doubtful, the application should be granted regardless of the strength of the case.  In Shek O Development Co Ltd v Chan Kwok Tung [2017] 2 HKLRD 374, at §§30 & 32, Deputy High Court Judge Kent Yee (as he then was) stated:-

“30 … All he needs to prove with credible evidence is his locus standi or his interest in the proceedings. As can be seen in the Yu Cho Wah case, the court might even exercise its discretion to allow intervention of an intervener who could only show doubtful interest in the proceedings in the joinder application.

32. It may appear to be an attractive proposition that a party should not be allowed to join if his case is obviously and plainly unmeritorious. However my view is that so long as a party can fulfil the requirements under O.15 rr.4(1) and 6(2)(b) thereby showing his locus or interest, the joinder application should be granted regardless of the strength of his case. The merit of the applicant’s case against such a party is best left to be decided either summarily or at trial after the joinder. The fact that one has a poor case does not mean that he should not even be joined as a party.” (emphasis added)

THE JOINDER APPLICATION

19.The basis of the Applicant’s joinder application is that:-

(1)  The applicant’s husband is the sole registered owner of the Lots and hence the Estate has an interest in the Action, and

(2)  The applicant is the sole administratrix of the estate of her husband Man Cheuk Hi.

20.The applicant seeks to rely on the following documents, including inter alia:-

(i)    the Letters of Administration[10], in respect of Man Cheuk Hi (文卓熙), granted to the applicant;

(ii)   the Family Book[11] proving the relationship between the applicant and Man Cheuk Hi;

(iii)  the Lots were and are still registered in the name of Man Cheuk Hi[12];

(iv)  an affirmation by Man Wing Yin (文永賢), who affirms that the Lots were acquired in the name of the applicant’s husband with his father’s (文譚福) money.[13]

21.Mr Koo, counsel for the applicant, submits that the plaintiff’s claim is against the plaintiff’s uncle; whereas the applicant’s case is that the applicant’s husband and the plaintiff’s uncle are two different persons.  There is therefore a competing interest between the applicant and the defendant.  The applicant as the administratrix of the estate has the duty to safeguard the interest of the estate.  Provided that there are some evidence showing that her husband’s estate has an interest in this action, she should be given an opportunity to be heard.

22.Mr Ko, counsel for the plaintiff, agrees that the hurdle for the joinder application is very low, but submits that it does not mean that there is no hurdle to overcome at all.  Whilst the plaintiff does not seek to argue the merit of the applicant’s case, the plaintiff does seek to challenge the applicant’s application on the following grounds:

(1)  The documents show that the applicant’s husband was less than ten years old when Lot 3178D was assigned to him on 9 June 1941, through 文譚福, who held the same on trust for the applicant’s husband as trustee.  Whereas there is no document to show that Man Cheuk Hi purchased the Lots as a minor in 1939 and 1940. 

(2)  If the capacity of the applicant’s husband as minor was mistakenly recorded or omitted by the Land Registry for 17 times when the Lots were acquired in 1939 and 1940, what documents can support this fact other than 文永賢’s own assertion in the second affirmation? 

(3)  If the applicant’s husband was the registered owner of the Lots, what title documents did he or the applicant herself possess? 

23.It is generally accepted that a minor should not hold a legal estate and cannot create a legal mortgage of land.  However, generally it is also accepted that a minor may be able to hold title to land.  The preferable situation and more in line with the law of minority, is that the land is held on trust for the minor.[14]

24.Mr Ko submits that whilst a minor could hold or own a piece of land as a minor, he has no capacity to deal with the land during his minority.  The Lots were purchased by文灼熙 by way of sale.  There was therefore dealing with the land.[15]  As to the term “dealing”, according to the Hong Kong English - Chinese Dictionary, as submitted by Mr Ko, it means that “an act of buying or selling the property”.  In respect of the title documents, that included the government lease or the conditions of sale.

25.Whether the applicant’s husband was a minor at the time of the purchase and whether the Lots were held on trust; and whether the Land Registry may have other records showing ownership in the 1940s are factual and legal matters to be determined.  Bearing in mind Land Registry System during World War II may be quite different from that of the present and in light of the fact that there is a live witness Man Wing Yin who affirms that the Lots were acquired in the name of the applicant’s husband with his father’s money, these issues would require closer examination at trial and cannot possibly be determined at this hearing.

26.In Chea Shiu Chow v Cheung Chit Chiu and Another (unrep, HCA 1346/2012, 24/06/2013), which is an adverse possession claim involving an issue of who is the actual owner of the land, the court in hearing a joinder application made by the daughter of the defendant, stated the following:-

“8. Thus, Order 15r 6(2)(b)(ii) confers a rather low hurdle for joinder applications: – On one hand, whilst “A mere commercial interest in its outcome, divorced from the subject matter of the action is not enough” (Wong Chun Loong Tony v Ada Ltd[1991] 1 HKC 86), on the other, even “a person with a doubtful interest in the subject matter of the litigation was allowed to be joined, so that the doubt over his interest could be resolved at trial together with the relevant issues between the original parties” (Man Whi Chung v Man Ping Nam & Anor [2003] 1 HKC).

…

18. The subject matter of this action is an adverse possession claim on the title of the Land. It is unjust if a party who may lay claim to the title is depraved of the chance to be heard before the trial judge, even if that claim may seem “doubtful”.” (Emphasis added)

27.Having considered the above authorities, I am satisfied that the facts presented to me at this hearing do substantiate a case of the applicant’s husband may have been the owner of the Lots.  I am also satisfied that the applicant has shown that she has locus standi and does have a legitimate interest in the outcome of these proceedings.  The applicant should not be deprived of the opportunity to defend the case and it is just and necessary that the applicant be allowed to join in as the 2^nd defendant. 

The summons for default judgment

28.Mr Ko fairly accepts that the summons for default judgment should be dismissed in light of my decision to allow the joinder application. 

Order

29.I shall, therefore, make the following orders:-

(1)  An order in terms of the applicant’s summons for joinder dated 31 March 2021.

(2)  The plaintiff’s summons for default judgment be dismissed, with no order as to costs.

Mr Ernest Koo and Mr Rex Yam, instructed by Christine M Koo & Ip Solicitors & Notaries LLP, for the applicant

Mr Anthony L K Ko and Mr Arthur H Y Au, instructed by T K Tsui & Co, for the plaintiff