Lam Chung Ping and Others v. Chan Yuet Kuen and Another
Read the full judgment text of DCCJ 2203/2023 on BabelCite. This District Court judgment was delivered on 28 March 2025 before Deputy District Judge Kenneth KY Lam.
Civil law – Property – Vacant possession – Divorce – Will – Mesne profits – Costs – DCCJ 2203/2023 – Deceased's estate – Former wife – Note dated 5 January 2019 – Form A in Divorce Proceedings – Jurisdiction abated on death – Indemnity costs – Judgment for Plaintiffs – Vacant possession ordered – Mesne profits awarded – Costs on indemnity basis
Legal issues: D1's Interest? · Reliefs?
Outcome: Judgment for Plaintiffs; D1's counterclaim dismissed.
Cited by 2 cases · Cites 14 cases
|
DCCJ 2203/2023 [2025] HKDC 552 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2203 OF 2023 ------------------------- BETWEEN
-------------------------
------------------------- JUDGMENT ------------------------- Introduction 1.This is my judgment for a claim commenced by the plaintiffs (“Ps”) to recover vacant possession of a property known as “Office B on the 1st Floor, No.167 Queen’s Road West, Hong Kong” (“the Property”) against, inter alios, the 1st defendant (“D1”), who was the wife of a person known as Fok Kam Fai (“the Deceased”) who died on 14 June 2020 (“the Date of Death”) at the age of 88. 2.Some 13 years prior to the death of the Deceased, via FCMC 2959/2007 (“the Divorce Proceedings”), D1 divorced him. The evidence showed the date of the pronouncement of the decree absolute as 25 October 2007. For present purposes it is important to note it was D1 who petitioned for divorce. Whilst D1, acting in person, did not produce all papers for the Divorce Proceedings in this action, she had since confirmed under oath she had the services of solicitors at that point in time, and she did not claim any ancillary relief against the Deceased. 3.The Deceased was the sole registered owner of the Property. There was no order in the Divorce Proceedings (none had been pleaded or produced) requiring the Property to be sold or transferred. After the Date of Death, by an assent dated 10 November 2020 duly registered in the Land Registry, Ps became the sole registered owners of the Property. 4.Ps wanted D1 to leave the Property and issued a demand letter via Mike So Joseph Lau & Co Solicitors. D1 refused to leave. Hence this legal action. 5.The trial was originally listed for 6 days but only lasted 2 days. Ms Lee Wing Ki, instructed by Mike So Joseph Lau & Co Solicitors, acted for Ps. D1 acted in person. The 2nd Defendant (“D2”) never showed up. 6.Having carefully considered all evidence and all submissions my decision is to rule in Ps’ favour and grant the reliefs set out towards the end of this judgment. In gist, D1 and D2 (collectively, “Ds”) must leave the Property, and the Form A currently registered against the Property must be vacated forthwith. Ds should also pay mesne profits to Ps. 7.Importantly, D1 disowned the Form A, alleging she had never seen it, and that the law firm which caused it to be filed against the Property (“the Law Firm”) was never known to her. A cover letter of the Law Firm listing the names of its two solicitors was shown to D1, and D1 alleged she had no idea who those solicitors were. In such circumstances, I considered whether I should direct the Registrar of the District Court to send copies of (1) this judgment; (2) the transcript; and/or (3) pages 163 to 173 of the Trial Bundle to the President of the Law Society of Hong Kong as it appeared to me there were 3 possibilities – (i) the Law Firm acted without authority as alleged (in which case disciplinary action should arguably be taken against the Law Firm); (ii) D1 knowingly gave false evidence under oath (in which case D1 should arguably be directly or indirectly referred to the Secretary for Justice); or (iii) a third person fraudulently procured the registration of the Form A (in which case that third person should be prosecuted). After careful consideration, it seems to me that upon the vacation of the Form A from the Land Registry, and Ds’ full compliance with my orders here, this matter can be treated as at an end, and the said direction is unnecessary. 8.My reasons are as set out below. Since D1 appears to have no problem seeking help on interpretation of documents (she confirmed under oath she had the assistance of a named litigation clerk), I shall set out my reasons in English even though D1’s first language is Chinese. Witnesses – Overview 9.The following witnesses gave evidence under oath: -
Evidence of P1 10.In gist, P1 confirmed the contents of Ps’ pleadings as true and accurate. P1 said that on 16 February 2019, he met up with the Deceased and asked the Deceased whether a note dated 5 January 2019 (“the Note”) was written by him. The Deceased said whilst he signed the Note the words on it were not written by him. P1 said his younger sister P2 video-recorded the whole process. That video was played in Court and I watched the whole clip. It proved this part of P1’s evidence as entirely true. P1 further stated there was an audio recording of a conversation with D1 later that day which was also played in Court. I listened to the whole clip. Whilst the clip also proved this part of P1’s evidence as entirely true, this has no importance. 11.Of greater importance is the next part of P1’s evidence, where he referred to a will made by the Deceased on 18 January 2019 (“the Will”) which has already been accepted by the Probate Registry as genuine. There was no challenge. Since the Will post-dated the Note, and the Will had the usual revocation clause as its Clause 1, the Note could not operate as a will even if it were genuine. The Will bequeathed the Property to P1 and P2 in equal shares “for their own use and benefits absolutely”. On the strength of the Will, P1 and P2 became and they currently are the registered owners of the Property. 12.Last but not least, P1 stated that even before the Date of Death, the Deceased had already instructed Mike So Joseph Lau & Co Solicitors to issue, and they did issue, a Chinese eviction notice, dated 28 March 2019, against D1, demanding D1 to move out of the Property. This showed that whatever licence the Deceased had given to D1 prior to 28 March 2019, it had been validly revoked during the Deceased’s lifetime. 13.I personally explained the extremely important rule of Browne v Dunn (1893) 6 R 67 to D1 in Cantonese at the very beginning of the trial, and D1 indicated she understood it. Despite that, D1 did not cross-examine P1. 14.Having carefully considered the well-known principles on the assessment of evidence, including those previously summarized by myself in, for example, Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam), and remembering it is possible for unchallenged evidence to be false or unreliable, I accept P1’s evidence as true. P1’s evidence was fully supported by contemporaneous video clip, contemporaneous audio clip and contemporaneous documents. It is logical and accorded with common sense. Evidence of P2 15.P2 was P1’s younger sister. P2 confirmed the contents of Ps’ pleadings as true. P2 adopted all evidence of P1 as her own. P2 was cross-examined by D1, but the only question asked of P2 was whether P2 agreed P2 had only met D1 twice. P2 said yes. All other parts of P2’s evidence were wholly unchallenged, despite D1 having indicated she understood the rule of Browne v Dunn (1893) 6 R 67 as explained by me to her. 16.Again, having carefully considered the well-known principles on the assessment of evidence, including those summarized by me in, for example, Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam), and remembering it is possible for unchallenged evidence to be false or unreliable, I accept P2’s evidence as true, for the same or similar reasons as set out above. Evidence of D1 17.D1’s evidence was bizarre. She said she did not know how to use a computer, but her witness statement was typed out in a computer and printed out for her to sign. D1 said she was able to get that done since she had the assistance of a named litigation clerk. D1’s witness statement was reproduced at pages 112 to 116 of the Trial Bundle. At D1’s request I gave D1 plenty of time to re-read it, after which she said pages 112 to 115 were true and accurate and hers, so D1 adopted them. She alleged page 116 was a forgery, but that was just her signing page, with a single paragraph of text at the top. That paragraph favoured D1, but D1 disowned it. It struck me as highly unlikely for a person to be forging a paragraph of text favourable to D1. Be that as it may, we all proceeded on the basis that only pages 112 to 115 would count as D1’s witness statement. 18.D1 was cross-examined by Ps’ counsel, Ms Lee Wing Ki, and the answers given by D1 were just weird. For example, §8 of D1’s witness statement alleged Ps “stole” all title deeds for the Property, but when cross-examined about this D1 alleged for the first time her own allegation of theft was fabricated, because D1 kept the title deeds and still had them with her. It made no sense whatsoever for D1 to have confirmed a serious allegation of theft against Ps during her own examination-in-chief, only to then make an even more serious allegation that she had herself knowingly given false evidence under oath, committing the serious crime of perjury under Section 31 of the Crimes Ordinance (Cap 200). However that was exactly what D1 effectively said under oath. D1 also said she was not the person who spoke in the audio recording played in Court, but that was never previously stated by her anywhere, and I could also tell from listening to the audio recording that the voice was quite obviously D1. Further or other bizarre features of D1’s evidence had been listed out in §36 of Ps’ written closing submissions, all of which I considered. 19.Having carefully considered the well-known principles on the assessment of evidence, including those previously summarized by myself in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam), I must reject D1’s evidence as wholly nonsensical and unreliable. However, my rejection of D1’s evidence may not matter because as I shall explain, even if I were to accept D1’s evidence in this matter, none of the things she said would amount to a legally viable defence to Ps’ simple claims. Issues – Overview 20.Now that I have struck out Ps’ “slander of title” claim on my own motion – see [2025] HKDC 476 – the remaining issues are: -
21.I shall deal with these issues in that order. Issue 1 – D1’s Interest? 22.This is a court of law and as such, we only enforce interests in land recognized by statutory provisions, common law principles or rules of equity. D1’s repeated allegations that she boiled fish soup for the Deceased, for example, did not create any interests recognized by statutory provisions, common law principles or rules of equity and I shall ignore them, as I very obviously should. As I said in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§35, DDJ Kenneth KY Lam), we are not here to decide who should go to Heaven and who should go to Hell. Insofar as D1 was defending this action on the basis of a subjective belief that she should have a moral reward by reason of things she had done in the past, or on the basis that she allegedly had nowhere else to live and I should have a moral duty to let her stay in the Property in perpetuity to the exclusion of its legal and beneficial owners, that approach to litigation was fundamentally wrong. I shall only deal with interests recognized by statutory provisions, common law principles or rules of equity. 23.As far as I can understand from D1, D1 relied on the Note (see §10 above). The Note was handwritten in Chinese, signed by the Deceased, and dated 5 January 2019. A copy of it was at page 147 of the Trial Bundle and I examined it. The handwritten text (the authorship and legal effect of which being strenuously disputed by Ps – pages 42 & 43 of the Trial Bundle, §§15 & 16) read: -
24.Those words were curious. There are numerous possibilities. The Note could have been a legally enforceable contract, a valid will under Section 5(2) of the Wills Ordinance (Cap 30), a declaration of trust, a bare or contractual licence, a representation giving rise to an estoppel, a void ab initio document by reason of its uncertainty, and so on. Given the endless possibilities, I must carefully examine D1’s pleading to see how D1 framed her own case, since D1 should be bound by her own pleading. 25.D1 filed a Defence and Counterclaim dated 1 September 2021 (“the D&CC”). On its face, the D&CC was carefully typed up in Chinese, by someone, using a proper computer, and duly signed by D1. The material part is reproduced at page 30 of the Trial Bundle. It pleaded the existence of the Note and then alleged it “explained” (說明) D1 could reside within the Property until D1’s death. The relief claimed by D1 was a declaration that D1 had a beneficial or life interest in the Property. At no point did D1 explain how one would lead to the other. That was most unsatisfactory but D1 was acting in person so the more pertinent question is what should I, as the Trial Judge, do, in such circumstances? 26.In my view, the starting point is that in litigation, a litigant-in-person has the same duties as a represented litigant. The rationale is two-fold. 27.Firstly, as is well-known, under Article 25 of the Basic Law, and indeed under general common law principles, all Hong Kong residents should be equal before the law. That means a litigant should never be given special privilege just because she chose to act in person or was ignorant of legal procedures. If that could happen, Hong Kong residents would not be truly “equal before the law”. 28.Secondly, as a matter of legal policy, we need to guard against creating the wrong incentives in the administration of justice. If a litigant could gain privileges by choosing to act in person, every litigant would act in person and the result would be disastrous for the administration of justice generally. 29.By reason of the above, as I had said in Licksun Company Ltd [2025] HKDC 372 (§6), I agree with the remarks of the Court of Appeal in 梁銓勤 訴 周俊為 (CACV278/2004, 25 April 2006, §20) and莊裕安 訴 郭瑞熙 (CACV62/2014, 21 August 2015, §28) to the effect that “fairness” includes being fair to the represented parties. Litigants should not be made worse off, or penalized, for being legally represented. 30.That being the case, I should hold D1 to the same standard of discipline vis-à-vis pleading rules as if her pleading was drafted by counsel or solicitors. The importance of pleading rules had already been explained by me when I struck out Ps’ “slander of title” claim on my own motion – see [2025] HKDC 476 – and I adopt what I had said back then. 31.With that in mind I exclude all potential issues which must be specifically pleaded to be entertained but have not in fact been specifically pleaded by D1, including the following: -
32.I also noticed from the D&CC it was never D1’s pleaded case that she could and wish to seek “specific performance” of the Note. There was no allegation of “breach of contract”. There was no plea that the Note was a will under Section 5(2) of the Wills Ordinance (Cap 30). There was no suggestion there was any express trust, constructive trust, resulting trust or indeed any trust. Insofar as it was alleged the Note was a declaration of trust (there was never any such plea) the Note should not even be received in evidence at the trial as it was never stamped and Sections 15 & 29A(1)(d) of the Stamp Duty Ordinance (Cap 117), etc, would apply. 33.In fact, having read and re-read the D&CC, it seems to me that D1 never pleaded any viable defence in accordance with our pleading rules and as such, strictly speaking, this should be the end of the matter. 34.Just in case I was wrong on the above, however, I should also set out my views on various points. This is to demonstrate even if D1 had a proper pleading (she did not), I would still have ruled against her. 35.As I had discussed with D1, the Note actually made no sense. If the Deceased intended to let D1 use the Property during the Deceased’s lifetime, all the Deceased had to do was to personally open the door of the Property for D1 or orally instruct someone to open the door of the Property for D1, and the Deceased did not have to make the Note. If the Deceased wanted to express his testamentary intentions so that D1 could continue to use the Property after his death, I would have thought the Deceased would have mentioned the word “death”, or its variations, in the Note, instead of mentioning “起居生活” (Daily Living), or to set out D1’s responsibility in any other way. If it were a contract (putting aside the obvious fact that they would not have the necessary intention to create contractual relationships – it was never D1’s case that she was hired by the Deceased as a business, domestic helper, nurse, chef, employee or servant on a remunerated basis, paying salary or profits tax to the IRD of the HKSAR Government), I would have thought the parties would have been very keen to set out the quid pro quo with more precision, such as spelling out the full address of the “place” or setting out the scope of the “services” expected from D1. 36.In any case, as explained above, insofar as the Note was meant to be a will of the Deceased under Section 5(2) of the Wills Ordinance (Cap 30), it must have been validly and effectively revoked on 18 January 2019, when the Will, which has already been accepted by the Probate Registry as genuine, was executed by the Deceased. Insofar as the Note was meant to be a licence, it must also have been validly and effectively revoked via the Chinese eviction notice, dated 28 March 2019, validly served on D1 during the Deceased’s lifetime. Insofar as D1 meant to raise an estoppel argument, the absence of any suggestion of detrimental reliance would be fatal to the argument. All in all, even if I were to put aside D1’s pleading deficiencies, I would still have ruled against D1, because there is no conceivable reason why the Note would have the legal effect of validly granting a life interest, or any interest, in the Property, to D1. If necessary, I would have ruled the Note was void for uncertainty, exactly as argued by Ps, and for the reasons as put forth by Ps (see, eg, §33 of Ps’ written closing submissions). 37.That left us with the Form A in the Divorce Proceedings, still registered against the Property, which D1 disowned on oath. In my view, even if D1 would still wish to rely on it, it could not have created subsisting interests. The simple reason is that as a general rule, the Family Court does not vary, or create new, ancillary relief orders once a party to the marriage died, so the Form A in the Divorce Proceedings, even if authorized instead of unauthorized, ceased to be relevant on the Date of Death (14 June 2020), and should have been promptly removed from the Land Registry altogether after the Date of Death. 38.Indeed, as early as on 26 August 2008, in the well-known case of L v T [2008] 5 HKLRD 532, DDJ CK Chan, having carefully examined an earlier edition of Rayden and Jackson, and also the English case law on the issue, came to the view that in Hong Kong, as in England, the statutory ancillary relief regime in Family Law Matters was obviously created on the assumption that it would only be used by a living applicant against a living respondent, and that all pending applications should cease the moment one of the parties died. That had been the position since 1857. It never changed. On that basis, once a party to the original marriage died, the Family Court ceased to have any jurisdiction to deal with ancillary relief matters. I agree with DDJ CK Chan. For the avoidance of doubt, there are exceptions, the best-known one being the death provisions for secured periodical payments in Section 11 of the Matrimonial Proceedings and Property Ordinance (Cap 192), but on the facts of our case those provisions had no application. 39.I actually checked the latest edition of Rayden and Jackson on Relationship Breakdown, Finances and Children (LexisNexis, Loose-Leaf, Issue 34, December 2024), and its [11.7] reads: -
40.The equivalent of the Inheritance (Provision for Family and Dependents) Act 1975 in our laws is the Inheritance (Provision for Family and Dependents) Ordinance (Cap 481), considered by our Court of Appeal in ACLS v HSB(T)L [2013] 2 HKLRD 444. D1 never made any application under that Ordinance. According to Ps’ case, that was because D1 was not a dependent of the Deceased. 41.For the avoidance of doubt, I considered Unger v Ul-Hasan, decd [2024] AC 497 [2023] UKSC 22, handed-down by the UK Supreme Court on 28 June 2023, which reviewed the position in England. What was said in Unger confirmed the orthodox view that once a party to the original marriage dies, the Family Court’s jurisdiction to deal with ancillary relief matters either for or against that party evaporates, and the proceedings must end. The legal position is identical in Hong Kong. 42.Before I leave the subject, I should record another observation about the Form A. It alleged D1 was applying for an order for maintenance pending suit (“MPS”). Given the filing date of the Form A (28 June 2019), that was disgraceful. As had been made clear in YKY v WSM [2018] HKFC 224 (§17), and as the phrase “pending suit” implied, on pronouncement of the decree absolute, the parties’ entitlement to apply for MPS under Section 3 of the Matrimonial Proceedings and Property Ordinance (Cap 192) would evaporate. On the facts of our case the decree absolute was pronounced on 25 October 2007 so that applications for MPS were impossible at any point thereafter. The Law Firm should be aware of this. In most likelihood, the Form A was actually filed dishonestly. As the Law Firm has not been heard, I say no more about this. Whilst I could have referred the Law Firm to the Law Society for professional misconduct investigation, and this had indeed been most seriously considered by me, at the end of the day I decided that this would be unnecessary. 43.It follows from the above that in my considered view, D1 did not retain any interest of any kind in the Property after being served with a Chinese eviction notice by the Deceased’s solicitors Mike So Joseph Lau & Co during the Deceased’s lifetime, and D1 has no defence to Ps’ claims for trespass and vacant possession, etc, herein. 44.D1’s counterclaim is hereby dismissed. Issue 2 – Reliefs? 45.Ps are the sole legal and beneficial owners of the Property and are entitled to vacant possession. Given the background of this action, the way D1 defended it, and having observed D1’s behaviour in Court, I accept Ps must have a reasonable apprehension that unless restrained by a formal injunction order with penal notice, Ds would seek to re-enter the Property, possibly by force. It is common ground Ds occupied the Property without paying rent so that mesne profits should be paid by Ds to Ps. There was no challenge vis-à-vis the expert evidence on the rental values of the Property, and it is right that I should adopt the figures presented to me. I read in full the expert report in question and accept the opinions stated in it as reliable. Any presence of the Form A in the Land Registry would plainly be against the public interest, since it had been disowned by D1, and was in any case filed dishonestly. The principles declared by DHCJ Cheung in Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594, which I examined in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933 (§22) should apply to the Form A in our present case. Costs should follow the event and be paid by Ds to Ps, this being the only fair order, all things considered. 46.On the taxation scale, this action was commenced in the High Court on 3 May 2021 as HCA 682/2021 but by the Order of Master Phoebe Man made on 24 May 2023 transferred to the District Court (and then given the number DCCJ 2203/2023). The costs of the transfer were simply said to be “in the cause”. All things considered I take the view that all costs up to and including the said hearing before Master Phoebe Man should be on the High Court Scale and all costs thereafter should be on the District Court Scale. Given how strange the Note was, and D1’s threat of using the Note before the commencement of this action, in my view it was essential for Ps to engage counsel, and I certify the engagement of counsel throughout. It seemed obvious to me that Ps’ solicitors made the correct judgment call by engaging counsel at the earliest possible stage, and counsel had in fact been extremely helpful to this Court. 47.Having considered the CFA authorities of (1) Town Planning Board v Society for Protection of the Harbour (2004) 7 HKCFAR 114 and (2) Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020) 23 HKCFAR 74 [2020] HKCFA 2 on indemnity costs, this is in my view an appropriate case for Ds to pay costs on an indemnity basis. As the Chief District Judge mentioned in Khan Asaf Nawaz v Secretary for Justice [2023] HKDC 605 the indemnity costs order is not meant to punish any person but given how wholly unmeritorious D1’s case had been, and how substantial resources had been wasted by Ds, such an order would in theory “achieve a fairer result” as Ps would, as a matter of principle, be out-of-pocket to a lesser extent. 48.By reason of the above, I enter final judgment against Ds, and grant the following reliefs to Ps: -
49.I further direct Ps’ solicitors to translate §§48(1) to (6) above to Chinese and serve the Chinese version, by way of a Chinese cover letter, to each of Ds, by 4:30 pm on 11 April 2025 at the latest. Conclusion 50.I dismiss D1’s counterclaim, enter final judgment in favour of Ps and against Ds, and grant the reliefs set out in §48 above to Ps. I thank Ps and D1 for submitting their dispute to this Court for adjudication and I thank Ps’ counsel, Ms Lee Wing Ki, for her most able assistance.
Ms Lee Wing Ki, instructed by Mike So Joseph Lau & Co, for the plaintiffs The 1st defendant appeared in person The 2nd defendant was not represented and did not appear |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under DCCJ 2203/2023