Pun Kwan Ying v. Yeung Hoi Po

HCMP 1019/2024

[2025] HKCFI 3668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1019 OF 2024

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is an application by the plaintiff (“P”) by way of originating summons (“OS”) for the determination of two questions and for declarations to the effect that she owns 50% beneficial interest in an apartment and a carpark located in Tang Court, No. 168 Nga Tsin Wai Road, Kowloon (“the Properties”).

2.The defendant (“D”) is the husband of P. D has not filed any acknowledgement of service to the OS filed by P. The primary issue in these proceedings is whether P should obtain the declarations sought in the amended originating summons (“the Amended OS”).

BACKGROUND & PROCEDURAL HISTORY

3.According to P, P and D were married in August 1991 in Zhuhai, China and they have lived together ever since. They are still married to each other and reside in the same address in the Mainland together. P claims that D is a businessman and she is a housewife. According to P, it had always been their shared common intention to own a property in Hong Kong for their children. After their first child was born in late 1992, P and D jointly decided to purchase the Properties in or around September 1996. P allegedly agreed to allow D to register the Properties under his sole name because she was pregnant at that time and it would be inconvenient for her to handle the purchase of the Properties.

4.In late March 2024, P learnt that Standard Chartered Bank (Hong Kong) Limited (“SCB”) commenced a mortgagee action against D under HCMP 526/2024 (“the SCB Proceedings”) for possession of the Properties, claiming that D defaulted on a mortgage secured by the Properties.

5.On 17 June 2024, P applied for leave to be joined in the SCB Proceedings as the 3^rd defendant. On 19 June 2024, Master Dick Ho ordered that P’s application to be adjourned sine die with liberty to restore.

6.On 14 June 2024, P took out the OS for these proceedings. In the Amended OS, P sought the determination by the court of the following questions:

(a) Whether PRC law applies to the determination of P’s interest in the Properties; and

(b) If (a) is answered in the affirmative, whether P has a 50% beneficial interest in the Properties, despite the fact that D is the sole registered owner of the Properties.

7.P also sought declarations to the effect that she owns 50% beneficial interest in the Properties under the Amended OS (“the Declarations”).

DISCUSSION

8.To obtain the Declarations, P must show that:

(a) the court has jurisdiction to make the Declarations; and

(b) the court should exercise its discretion to make the Declarations notwithstanding the circumstances of these proceedings.

9.For the first issue, Ms Tanie Toh (appearing with Mr Thomas Yeon) submitted on behalf of P that these proceedings were brought under the correct procedures; that PRC law applies in this case; and P has a 50% beneficial interest in the Properties.

10.For the second issue, Ms Toh submitted that this court has power to grant declaratory relief from its inherent jurisdiction and that all the requirements in Koo Ming Kown v Rev Mr Mok Kong Ting & Ors [2018] HKCFI 967 (cited with approval by the Court of Appeal in Convoy Global Holdings Ltd v Kwok Hiu Kwan & Anor [2022] 1 HKC 551) have been satisfied.

11.In Koo Ming Kown, DHCJ To (as he then was) held at §20 that an applicant seeking to invoke the court’s jurisdiction to grant declaratory relief has to show:

(a) that he has a real interest in the subject matter of the declaration (the real issue requirement);

(b) that he has a real interest in obtaining a declaration against the adverse party (the real interest requirement); and

(c) that the adverse party is a proper contradictor (the proper contradictor requirement).

12.In the present case, the Declarations sought by P would have the effect of giving her a beneficial interest in the real properties owned by D. P therefore has an apparent case for arguing that all three requirements identified in Koo Ming Kown have been satisfied, although in my judgment it is neither necessary nor desirable to express any view on the merits of the substantive claim at this stage (See §60 of Lam Kin Fong & Ors v Cheung Wai Ting & Ors [2022] HKCFI 1741).

13.In my judgment, the real issue is whether this court should grant the Declarations in the circumstances of these proceedings. In the present case, P is effectively asking the court to grant the Declarations without a trial, which is not the normal practice of the court. A declaration is a discretionary remedy and a plaintiff has the burden to demonstrate a genuine need for the declaration sought (Lam Kin Fong citing Top One International (China) Property Group Company Ltd & Anor v Top One Property Group Ltd [2011] 1 HKLRD 606, §§83 & 85, per Fok J (as he then was).

14.However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied (Cheung Sai Lon v Cheung Sai Ha [2020] HKCFI 2551 at §31; Lam Shing Shou v Lam Hon Man & Ors (unreported, HCA 361/2001, 15 January 2002); Kan Kiu Chor v Fung Shu Fun (the Administratrix of Tang Chuen, deceased) (unreported, HCA 1902/2015, 6 April 2016).

15.In Lam Shing Shou, the 1^st to 3^rd defendants did not file any notice of intention to defend and the remaining defendant (the 4^th defendant) agreed to be bound by the outcome of the proceedings. The plaintiff filed evidence that he was validly adopted and further evidence to prove his use and occupation of the properties. The plaintiff had abandoned the claim for damages and the declarations sought were the only and substantial relief sought by the plaintiff. In the circumstances, Chu J (as she then was) granted the declarations sought by the plaintiff without a trial because justice would not be done in that case if the plaintiff were denied the declaratory relief (See §16).

16.In Kan Kiu Chor, DHCJ Cooney SC granted a declaration without a trial to the effect that a property in Shatin was held by the defendant for and on behalf of and as trustee of the plaintiff. The judge noted that the defendant had filed an acknowledgement of service confirming that she did not intend to contest the plaintiff’s claim and that there was a “large number of documents” evidencing that the plaintiff financed the purchase of the property and made mortgage repayments. In the circumstances, the judge found that it was a suitable case for the court to depart from the normal practice and to grant the declaration without a trial.

17.In Lung Ka Kuen v Chu Chun Yuk & Anor (unreported, HCA 2832/2015, 24 October 2016), DHCJ Marlene Ng (as she then was) identified five reasons for not following Kan Kiu Chor. They are:

(a) one of the defendants did not file any acknowledgement of service;

(b) the interests of third party creditors would be affected by the declaratory reliefs sought;

(c) the plaintiff had placed no evidence in support of the claim based on common intention constructive trust;

(d) the plaintiff’s pleadings were unclear and there was doubt as to whether the declaration could be effectively implemented; and

(e) the propriety and utility of the declaration sought were highly doubtful.

18.Similarly, in Sum Chi Chung v Tsang Kwok Hung [2022] HKCFI 166, DHCJ Winnie Tsui (as she then was) refused to grant a declaration without a trial when a third party has already applied to intervene in the underlying proceedings.

19.In the present case, Ms Toh for the plaintiff has identified 4 reasons as to why, in her submissions, that the court should grant the Declarations (See §53 of P’s Written Submissions):

(a) P needs to establish her interest as a beneficial owner before she could intervene in the SCB Proceedings. P’s case for intervening in the SCB Proceedings “rise and fall” with the Declarations;

(b) granting the Declarations in these proceedings (as opposed to granting the same in the SCB Proceedings) would enable the SCB Proceedings to proceed most expeditiously;

(c) Master Ho’s Order to adjourn the SCB Proceedings was made after hearing parties’ submissions and considering P’s affirmation; and

(d) granting the Declarations would best meet the objectives under Order 1A of the RHC of increasing the cost effectiveness of procedures and ensuring a sense of reasonable proportion and procedural economy in the conduct of proceedings.

20.In my view, reason (1) is misconceived. It is trite that a person claiming an interest in the subject matter of the action may be made a defendant (§15/4/5 Hong Kong Civil Procedure 2025). It follows that a person who is applying to be made a defendant does not need to establish his interest through a separate and independent proceedings.

21.Reasons (2) and (3) are also rejected. In my judgment, it is not necessary for these proceedings to be resolved in P’s favour before the SCB Proceedings can proceed. Any kind of resolution of these proceedings would be sufficient for this purpose.

22.Reason (4) is also not accepted. I find that these proceedings unnecessarily complicate the dispute between P, D and SCB by segmenting issues that could have been dealt with in one set of proceedings, namely the SCB Proceedings.

23.I also find that there is no good reason to depart from the general practice of refusing to grant declarations without a trial. Following Lung Ka Kuen and Sum Chi Chung, the court should be slow to grant a declaration without trial when it may adversely affect a third party’s interest.

24.Further, unlike the plaintiff in Lam Shing Shou or Kan Kiu Chor, P does not have a clear case for obtaining the declarations sought. P’s case is based on her marriage with D and Article 1062 of the PRC Civil Code (§20(2) of P’s Written Submissions). Be that as it may, SCB is entitled to mount challenges to P’s claim for beneficial ownership and it would be imprudent for the court to grant the Declarations without first hearing from SCB.

25.I also find that there is no necessity to grant the Declarations in these proceedings because P will be able to obtain the same if she succeeds in the SCB Proceedings. As I have alluded to before, the SCB Proceedings is clearly the better forum for all parties to resolve their dispute.

CONCLUSION

26.For the above reasons, I refuse to grant the Declarations and dismiss the Amended OS. As D never filed any acknowledgment of service and there is no other party to the Amended OS, I make no order as to costs.

Ms Tanie Toh and Mr Thomas Yeon, instructed by Tang Lawyers, for the plaintiff

The defendant was not represented and did not appear