Ho Man Lap, The Administrator of the Estate of Ho Wai Hung, Deceased and Others v. The Personal Representative of the Estate of Chan Cheung Alias Chan Yam Fook Alias Chan Yam Fook Alias Chan Yam Fuk, Deceased and Others

DCCJ 5716/2015

[2025] HKDC 117

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5716 OF 2015

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JUDGMENT

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1.This action concerns a plot of land known as Lot No 215 in DD 74 (the “Land”) that was claimed to have assigned to the 1^st to 4^th Plaintiffs (“Ps”) of the Ho’s family (“Ho’s Clan”) in the 70s by the 1^st to 3^rd Defendants (“Ds”), who are members and/or trustee of the Chan’s Clan (“Chan’s Clan”).

2.A writ was taken out by Ps on 18 December 2015, and the final version of the writ was filed on 17 November 2022 after seven amendments. As rightly pointed out by Ps’ counsel, the multiple amendments could be explained by the numbers of plaintiff and defendant involved in this case where we have five members from the Ho’s Clan and six members from the Chan’s Clan (before taking into account of their respective administrators). Due to the long history of the said assignment, most of the Ps and Ds have long departed and are now represented by their descendants; two of the Ho’s Clan members have passed away during the proceedings whereas some of the Ds have moved overseas or simply being impossible to be located. These all explained the needs of various amendments and delay of these proceedings.

3.Despite the 9 years lapse of time since the writ was taken out, if it is any consolation to the Ps, their pleaded case as set out in the final Re-Re-Amended Statement of Claim is not contested by any of the Ds. Since Mr Phang, counsel for the Ps, has already summarized the Ps’ case in his submissions, I shall not repeat the same here save that the Land in question was registered in the respective names of Chan Chun Cheung and the 1^st Defendant (“D1”) in 1958 with the 3^rd Defendant (“D3”) being the trustee. The 1^st to 4^th named 2^nd Defendant (“D2”) later succeeded Chan Chun Cheung’s half undivided part of the Land as tenants in common and became one of the registered owners. D3 at the material time also acted as trustee for the 2^nd to 4^th named 2^nd Defendant.

4.By an alleged assignment dated 14 June 1973 (“Assignment”), the 1^st named 2^nd Defendant and D3 assigned the Land at the consideration of HK$2000 to the 1^st Plaintiff (“P1”), who was the father, and his 4 sons, i.e. the 2^nd Plaintiff (“P2”), the 3^rd Plaintiff (“P3”), the 4^th Plaintiff (“P4”) and the 4^th Defendant (“D4”). All father and sons but P4 have passed away and are represented by their administrator, executors or personal representative of their estate in this proceedings. Ps therefore submitted that they have established their claims as P1 to P4 together with D4 being the legal and beneficial owners of the Land as Tenant in Common.

5.Ps pleaded an alternative case of Adverse Possession that P1 had been in exclusive and adverse possession of the Land at all material times since or around 1959. Ps relied on the expert report dated 28 December 2022 from Mr Leung Shou Chun, a land surveying expert who concluded in his report that the Land showed structures being rebuilt between 1964 to 1973 with footpath being repaved for vehicle access in 1979. Further, an artificial slope was formed at the east of the Land in 1998 and in 2001, aerial photos showed that the whole Land was undergoing construction works for the renewal of houses and garden.

6.As earlier said, the Ps’ case is not contested by all the Ds with the following reasons:

(a)  The D1 and D3 did not respond to these proceedings. Master Maurice Lam ordered that the proceedings be proceeded in the absence of their respective personal representatives on 26 March 2021;

(b)  D2 involved 4 named persons. The 1^st to 3^rd named 2^nd Defendant (“1^st to 3^rd named D2”) are now residing in Scotland, United Kingdom. They communicated to the Ps’ solicitors as early as in 2016 via their UK legal representative and in gist, they consented, by way of a signed consent summons (“Consent Summons”), to judgment being entered in favour of Ps in terms of the relief sought with a condition that no order as to costs to be made between Ps and the 1^st to 3^rd named D2. Per the order made at the Pre-Trial Review, the Consent Summons was adjourned to be dealt with at the trial. Mr Phang took the opportunity in the hearing drawing the Court’s attention to the Consent Summons which was signed by the 1^st to 3^rd named D2 instead by their instructed law firm; I agree with Mr Phang that the correspondence exhibiting in Trial Bundle D shows that, and I am satisfied that the 1^st to 3^rd named D2 were legally represented by an overseas law firm and were properly advised before signing the Consent Summons in their own capacity. After perusing the draft order in respect of the said Consent Summons submitted by Mr Phang, I agree the amendments made therein were proper, pragmatic and will not prejudice the interests of any of the 1^st to 3^rd named D2. I thus made an order in terms of the draft Consent Summons;

(c)  As to the 4^th named 2^nd Defendant, Chan Wing Hoi alias Chan Hoi Ping (“4^th named D2”), an order made by Master Peony Wong for substituted service of the Re-Re-Amended Writ of Summons was made on 18 March 2019 but with no responses. A notice of hearing in respect of the Pre-Trial Review and the trial that was sent to the 4^th named D2 was returned undelivered, and a further advertisement in a local Chinese newspaper was placed by the Ps’ solicitors informing the same. The 4^th named D2 did not show up at trial against this background.

(d)  The D4, who was the 2^nd son of P1 and now being represented by the executors of his estate has filed a Defence at the early stage of these proceedings. However, upon a consent summons dated 12 October 2023 and a subsequent order made by Master Maurice Lam, D4 was granted leave to withdraw their Defence and Amended Defence, and leave was granted for Ps to discontinue all claims against D4. Further, D4 was granted leave to be excused from all future hearings in this action and all orders and judgments given in this action shall be binding on D4 in their absence. In this juncture, this Court is reminded that one of the prayers Ps sought is that all Ps and D4 are to be declared as the legal and beneficial owners of the Land as tenants in common.

7.The Court has the benefit of reading and hearing the evidence given by all three Ps’ witnesses and their counsel’s submissions. I am satisfied that all interested parties were informed of the proceedings and/or steps were taken by the Ps to invite any interested persons to come forward to oppose the Ps’ application if and when they so wish. It is apparent that D1, the 4^th named D2 and D3 did not come forward to oppose the Ps’ application even ample opportunities were given in the last 9 years.

8.Notwithstanding the alternative pleaded case, namely adverse possession, I am satisfied that the Ps have made good their claims of the alleged Assignment based on the following observations:

(a)  the stamped handwritten Assignment;

(b)  the absence of opposition from D1, D3 and the 4^th named D2;

(c)  as pointed out by Ps’ counsel, the only ‘wrinkle’ of the handwritten Assignment would be the absence of the name of the 3^rd named D2, but the Court accepts this is more probable than not to be a mere inadvertence since the description of the interests in the Land that was assigned was unqualified and no evidence before me indicating part of the interests of the Land is to be reserved for Chan Chi Kam;

(d)  indeed, Chan Chi Kam, i.e. the 3^rd named D2 confirmed by his instructing solicitors that it is his belief that his grandmother had sold the Land and he has no interest in it. The inference I draw, that is the absence of Chan Chi Kam’s name on the Assignment being a mere inadvertence or otherwise, will therefore not prejudice his interest;

(e)  besides above, ample evidence also showed that there were letters from the district council addressing to the Ps in relation to various issues of the Land in the 70s and 80s.

9.For the reasons above, I am satisfied that the Ps have established their claims that all the Ps and the D4 being the legal and beneficial owners of the Land described in the Re-Re-Amended Statement of Claim endorsed on the 7^th Amended Writ of Summons issued herein on the 17^th November 2022.

10.In the circumstances, I am of the view that it is right and just to grant the declaratory relief as prayed for in paragraphs 1 to 3 of the draft judgment submitted by Ps’ counsel for this hearing. The land register of the Land be rectified and the Ps and the D4 be registered as owners of the Land as Tenant in Common under and by virtue of the Assignment in Chinese dated 14 June 1973, with liberty to apply should there be any issues arising from the omission of the name Chan Chi Kam.

11.I made no order as to costs for this action.

12.I hope this Judgment will bring finality to this matter, and thus peace to both the Chan’s and Ho’s Clans.

Mr Roger Phang, instructed by Zhong Lun Law Firm LLP, for the 1^st to 4^th plaintiffs

The 1^st to 4^th defendants were not represented and did not appear