Zhou Cui Hao v. Ting Fung Yee

HCA007558/1996

1996, No. A7558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: The Honourable Mrs Justice V. Bokhary in Court

Dates of Hearing: 27, 30, 31 March 1998 and 1, 3 April 1998

Date of Handing Down of Judgment: 30 April 1998

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J U D G M E N T

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1. I completed this judgment in English some time ago but put back handing it down until that could be done together with a Chinese version.

2. This case concerns a flat, being the one on the 1st floor of 146 Camp Street in Kowloon ("the Suit Premises").

3. The Plaintiff is the widow of the late Mr Ng Ching Poon ("the Deceased") who died on 9th December 1990. He was the sole registered and beneficial owner of the Suit Premises which he purchased on 27th March 1986. She is the sole executrix named in his last will executed on 5th December 1990 and the sole beneficiary thereunder.

4. In 1995 this Court pronounced in favour of that will in solemn form. Later that year the Plaintiff obtained probate of the Deceased's estate and was appointed the sole executrix thereof.

5. On 17th April 1996 she, as sole executrix, assented to the vesting of the Suit Premises in herself as sole beneficiary.

6. The Defendant, according to her pleadings, was cohabiting with the Deceased since 1980, at first elsewhere and finally in the Suit Premises. She is still living in the Suit Premises.

7. It is the Plaintiff's case that the Defendant never had anything more than a licence determinable at will to occupy the Suit Premises. And it is common ground that on 1st June 1996 solicitors acting on behalf of the Plaintiff wrote to the Defendant saying that her licence to occupy the Suit Premises was determined and that she was required to vacate the Suit Premises not later than one calendar month from the date of such letter.

8. It is the Plaintiff's case that the Defendant's occupation of the Suit Premises constitutes trespass and has done so since 1st July 1996. Further, it is the Plaintiff's case that the Defendant has, since the deceased's death on 9th December 1990, been receiving rent from the tenants occupying those parts of the Suit Premises other than the portion thereof occupied by the Defendant herself. Those "tenants", the evidence disclosed, are persons each of whom occupy a bed space in return for payment.

9. The prayer to the Plaintiff's Statement of Claim reads as follows:

"1.	An Order that the Defendant do forthwith vacate and move out from the Suit Premises.
2.	(a)An Account of all the rents received by the Defendant from the tenants of the Suit Premises since 9th December 1990.
	(b) An Order that the Defendant do pay over to the Plaintiff any and all of the rents so received upon the taking of the Account ordered in sub-paragraph (a) above.
	(c) All necessary and consequential directions.
3.	(a) Mesne profits for the Defendant's said wrongful occupation of the Suit Premises.
	(b) Further or alternatively, damages for trespass.
4.	Interest.
5.	Costs.
6.	Further and/or other relief or reliefs as this Court may think fit."

10. Although she had the services of solicitors and counsel at an earlier stage of this litigation, the Defendant has been in person throughout the hearing before me.

11. The facts averred in the Defendant's Defence and Counterclaim, settled by her then counsel, appear in the following paragraphs of that pleading:

"6.	Since the year 1980, the Defendant was in cohabitation with the Deceased until he was taken ill and his eventual death in the month of December 1990.
7.	(a) In or about the year 1984:-
	(i) The Defendant contributed out of her own savings for the down payment toward the purchase of a property with the Deceased namely, 2nd Floor and Roof, 187 Reclamation Street, Kowloon, Hong Kong (hereinafter called "the said Property"). (ii) The 2nd Floor of the said Property was converted and used for carrying on the business of a male dormitory of which the Defendant and the Deceased were partners in equal shares. (iii) The Defendant and the Deceased occupied the Roof of the said Property.
	(b) The income from the said business was used, inter alia, to pay for the mortgage repayments in respect of the said Property;
	(c) The said Property was resumed by Government in or about the year 1989;
	(d) The statutory compensation payable in respect of the resumption of the said Property amounted, inter alia, to the sum of HK$597,000.00 together with interest thereon.
8.	In or about the year 1988 the Deceased, in order to persuade the Defendant into agreeing to contribute in the purchase of the Suit Premises for the purpose of carrying on the business of another male dormitory, orally promised and represented to the Defendant that :
	(a) The Defendant should work harder to ensure that they would be financially secured in their old age; and (b) The business and the Suit Premises would belong to the Defendant in the event of his death.
9.	In reliance upon the aforesaid promise and representation, the Defendant :-
	(a) Contributed out of her own savings towards the down payment for the purchase of the Suit Premises with the Deceased. (b) Expended money in converting and decorating the Suit Premises as a male dormitory. (c) Expended time and labour in carrying on and managing the said business at the Suit Premises mainly on her own. (d) Paid inter alia out of the income from the aforesaid business the mortgage repayments on the Suit Premises. (e) Paid up the mortgage on the Suit Premises after 5 years from the date of its purchase. (f) Occupied part of the Suit Premises with the Deceased since the year 1986 as their home and remained in occupation of the Suit Premises as her home after the death of the Deceased.
10.	In the year 1990, on the occasion when the Deceased refused the request by the Plaintiff to transfer the Suit Premises to the Plaintiff, the Deceased repeated his promises to the Defendant that the Suit Premises would belong to the Defendant upon his death."

Then the legal consequences for which the pleader contends on those averments of facts are pleaded thus in the Defence and Counterclaim :

"11.	In the premises and by reason of the matters hereinbefore pleaded the Defendant avers that :-
	(a) The Deceased (and his successors in title and all persons claiming title through him including the Plaintiff) is estopped from reneging from his aforesaid promise and representation by claiming against the Defendant for possession of the premises.
	Alternatively,
	(b) The Plaintiff as the successor-in-title of the Deceased is estopped from :
	(i) Denying the Defendant's right interests and equities in the Suit Premises. (ii) Claiming possession of the Suit Premises from the Defendant.
	(c) The Plaintiff holds the Suit Premises subject to the Defendant's right, interest and equities therein.
	(d) The Plaintiff holds the Suit Premises as constructive trustee for the Defendant.
	Further and/or alternatively,

	(e)	(i) The Plaintiff had full knowledge and notice of the Defendant's actual occupation of the Suit Premises.
		(ii) The Plaintiff's right to the Suit Premises, if any, is subject to the Defendant's overriding interest therein.

12.	In the premises and by reason of the aforesaid :-
	(a) The Plaintiff is not entitled to claim possession of the Suit Premises from the Defendant. (b) The Plaintiff is not entitled to the relief claimed in the Statement of Claim or to any relief.
13.	Save as hereinbefore to the contrary expressly appears the Defendant denies each and every allegation contained in the Statement of Claim as if the same were set forth herein and traversed seriatim.

AND BY WAY OF COUNTERCLAIM

14.	The Defendant repeats her Defence herein.
15.	By reason of the matters hereinbefore pleaded :-
	(a) The Defendant has acquired rights and interests Suit Premises in equity. (b) The Defendant is entitled to possession of the Suit Premises. (c) The Defendant is entitled to her half share in the statutory compensation payable in respect of the said Property.
16.	Further and insofar as may be necessary in the alternative the Plaintiff's right to the Suit Premises if any is subject to the Defendant's overriding interests therein by reason of her actual occupation of the Suit Premises with the deceased before his death and is still in actual occupation of the same as her home after the death of the Deceased."

Finally the prayer to the Counterclaim reads :

"1. A declaration that the Defendant is entitled to her share in the statutory compensation payable in respect of the said Property.

2. A declaration that the Defendant is entitled to possession of the Suit Premises.

3. A declaration that the Plaintiff holds the Suit Premises on trust for the Defendant.

Alternatively,

4. A declaration that the Plaintiff holds the Suit Premises subject to the Defendant's rights, interests and equities therein.

5. Such further or other orders or relief as this Honourable Court shall deem just or equitable.

6. Costs."

12. The Defendant went into the witness-box and gave evidence in support of her defence and counterclaim. She did not call any witness. Nor did she produce any document which showed anything more than that she managed the Suit Premises and collected payment - whether one calls it "rent" or anything else - from the men who occupied bed spaces in those premises and paid for such occupation. That she functioned in that way is not in dispute.

13. What is in dispute is the rest of her case: about her cohabiting with the Deceased; about her contributing to the purchase of the property in Reclamation Street; about her being a partner in the business carried on at that property; about her having received promises and representations from the Deceased about such promises and the Suit Premises; about her acting on such promises and representations by contributing money and labour; about a repetition by the Deceased of such promises; and so on.

14. All of those matters are for the Defendant to prove on a balance of probabilities. And she has not satisfied me of any of them on such a balance. I do not regard her story as inherently likely. But it is by no means impossible. I listened to her with the greatest care - and with a more benevolent desposition given that she is in person. But, having done so, I have to say that she did not impress me as a credible witness.

15. It is not necessary for me to deal with what the legal position would be if the disputed facts were as alleged by the Defendant. I do not find that to be the factual position.

16. What remains is to consider the Plaintiff's legal entitlement on the admitted or uncontroversial facts left once the Defendant's allegations fail, as they do.

17. I would prefer to grant such relief as would bring this litigation to an end here and now. But the way in which this action has been conducted drives me to the conclusion that the best thing that I can do in fairness to both sides is the following. Accordingly, what I do is to:

(1) Order that the Defendant do vacate and move out of the Suit Premises on or before 30th May 1998.

(2) Declare that the Plaintiff (in her capacity as sole executrix of the Deceased's estate is so far as the period 9th December 1990 to 1st April 1996 is concerned and in her capacity as sole owner of the Suit Premises in so far as the period thereafter is concerned) is entitled to have the Defendant account to her for all rent and/or other payments recovered by the Defendant since 9th December 1990 from (i) tenants of the Suit Premises or any part thereof and/or (ii) other persons who occupied the Suit Premises or any part thereof and paid for occupying the same.

(3) Order that such account be taken before a Master.

(4) Order that all such directions as may be just and proper for the taking of such account be made by the Master before whom such account is taken or, if it is more convenient in any instance, by any other Master.

(5) Order that the interest on any sums found due upon the taking of such account be dealt with by the Master before whom such account is taken.

(6) Order that the costs of and incidental to the taking of such account be dealt with by the Master before whom such account is taken.

(7) Order that the Defendant do pay to the Plaintiff (in the Plaintiff's respective capacities set out above) all sums found due upon the taking of such account together with such interest and costs as may be awarded by the Master before whom such account is taken.

(8) Order that the Defendant do pay to the Plaintiff as sole owner of the Suit Premises mesne profits as assessed by a Master for the Defendant's occupation of the Suit Premise from 1st July 1996 to the day when she vacates and moves out of the Suit Premises together with such interest and costs as may be awarded by the Master hearing such assessment.

(9) Order that all directions as may be appropriate for such assessment be made by the Master before whom it takes place or, if it is more convenient in any instance, before any other Master.

(10) Direct that the taking of the account and the assessment of mesne profits be before the same Master unless that is not practicable.

(11) Order that the Counterclaim be dismissed.

(12) Make an order nisi that the Defendant do pay the Plaintiff the costs of the claim and counterclaim to be taxed on a party and party basis if not agreed.

18. Since the Defendant is in person I will mention for her information that Order 42 rule 5B(6) of the Rules of the High Court provides in regard to orders nisi as to costs that "unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced".

Representation:

Ms Lisa Yip, instructed by M/s C. K. Mok & Co, for the Plaintiff.

Defendant, present in person.

Remarks: