Law Yuet Ming Lena, The Executrix Pf the Estate of Yu Mei Sun Deceased v. Wong Chuen Pan also known as Wong Pan Kwei

HCA 2831/2015

[2026] HKCFI 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2831 OF 2015

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BETWEEN

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JUDGMENT

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Introduction

1.Before me is the amended summons (“Amended Summons”) of the Plaintiff (“P”) seeking to enter judgment in default of acknowledgment of service and of pleadings by the Defendant (“D”). The Amended Summons was previously adjourned sine die. The summons to restore the Amended Summons came before me on 21 October 2025 whereby I ordered it to be restored for substantive hearing, and gave directions to P to serve my order and notice of this hearing on D.

2.I am satisfied that P has served the order and given notice as directed. I am also satisfied P has discharged the earlier obligations regarding service of documents. In the circumstances, I see no reason not to proceed with the Amended Summons this morning.

Background

3.P claims, inter alia, for sole beneficial ownership of a property situated at Flat C, 4^th Floor, No. 24 Carnarvon Road, Kowloon, Hong Kong (“Property”), which is registered under the name of D.

4.P pursues this action in her capacity as executrix of the estate of Madam Yu Mei Sun (“Madam Yu”) who issued this action but passed away on 10 September 2023.[1]

5.In gist, Madam Yu’s pleaded case, as prosecuted by P, is as follows. In 1957, Madam Yu came to Hong Kong. She lived with her aunt Madam Lee Mei Kuen (“Madam Lee”) and her aunt’s common law husband D.

6.On 12 January 1961, D purchased the Property, and became its registered owner. D, Madams Lee and Yu resided in the Property. Shortly thereafter, D had to return to the USA for medical treatment.

7.In around late 1961, in the presence of Madam Lee, D handed the title deeds of the Property to Madam Yu. D expressly promised Madam Yu that the Property would be gifted to her as it was unlikely he would return to Hong Kong. Madam Yu accepted, and promised D she would take care of Madam Lee.

8.Thereafter, D left Hong Kong for the USA and Madams Lee and Yu never saw him again, and his subsequent whereabouts was not known to them.

9.Madams Lee and Yu continued to reside in the Property until they moved out in 1964.

10.Since moving out, Madam Yu had rented out the Property. She received the rental income and handed possession of the Property to the tenants. Madam Lee passed away in 1994. Prior to Madam Lee’s death, Madam Yu used part of the rental income received from the Property to support her. Further, in 2002, Madam Yu engaged contractors to renovate the interior of the Property. In June and September 2005, Madam Yu also contributed a sum of HK$50,000 as renovation costs of the common areas of Ka Fat Building (“Building”), in which the Property is situated. According to P’s pleaded case, Madam Yu did all this in detrimental reliance to D’s promise or assurance that the Property would be gifted to her.

11.As at the date of the Amended Statement of Claim (“ASOC”), Madam Yu still kept custody of the title deeds of the Property.

12.By reason of the matters mentioned above, P claims against D that she is entitled to be registered as the owner of the Property either on the basis of common intention constructive trust between P and D or alternatively by way of proprietary / promissory estoppel.

13.Further and in the alternative, P relies on the doctrine of adverse possession. It is said P/Madam Yu has since around 1964 up to the present time been in exclusive, open, continuous and uninterrupted possession of the Property such that D’s title to the Property has been extinguished.

14.In terms of relief, P claims for inter alia:

14.1 A declaration that P is the sole beneficial owner of the estate and interest of and in the land and premises of the Property.

14.2 An order that D do transfer his legal and/or equitable interest and/or title in the Property to and in favour of P.

14.3 Alternatively, a declaration that the title of D to the Property had prior to the commencement of this action been extinguished by virtue of the provisions of the Limitation Ordinance and that P is the owner of the Property.

Discussion

15.It is well established that in an application for default judgment under Order 19 rule 7, the Court would give judgment according to the pleadings alone. I am satisfied that P has established a case based on the ASOC in that it was the common intention of Madam Yu and D that the latter would hold the Property on trust for the former, who acted to her detriment in reliance of the said common intention.

16.However, the Court’s practice is not to make a declaration of right in default of defence. The key issue in the present case is whether the Court should deviate from this practice. It is said this practice is not a rule of law, and may in an appropriate case give way to the paramount duty of the Court to do the fullest justice to the plaintiff to which he is entitled to. Notably, a plaintiff may demonstrate to the Court’s satisfaction a genuine need for a declaratory relief and that justice would not be done if such relief were denied. Any declaratory relief granted in such circumstances should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice.

17.P raised a number of points to show a genuine need for a declaratory relief, and that justice would not be done if the Court were to refuse such relief:

17.1 First, despite the common intention constructive trust, D is still the paper owner of the Property. As such, over the years, Madam Yu and later P received many queries from estate agents whether they could legitimately lease out the Property. According to P, in the early days it was through Madam Yu’s reassurances to the estate agents as to her beneficial ownership in the Property that enabled successive leases to be signed. Now that P has taken over, and after Madam Yu’s demise on 10 September 2023, the unsettled title and ownership issue of the Property may render it difficult for it to be leased out going forward.

17.2 Second, on top of difficulties on the leasing front, P informs me that as a result of the unsettled title and ownership issue of the Property, she had experienced difficulty in making claims in the Small Claims Tribunal against the owner of the upper floor unit for damages. The claim was made by P’s husband (on her behalf) but was dismissed because neither he nor P were the registered owner of the Property and thus lacked standing to sue.

17.3 Third, by Madam Yu’s last will of 24 February 2009, P was named the sole executrix and beneficiary of her estate, of which the Property should form part of. P could not discharge her duty as sole executrix properly in getting in and disposing of the Property without a relevant declaration from the Court.

17.4 Fourth, after Madam Yu’s demise, it appears that the Incorporated Owners of the Building (“IO”) has treated P as the de facto owner of the Property. P or her husband (on her behalf) attended the IO’s meetings regularly. Her husband also assisted with the work of the management committee of the IO (as treasurer in 2016-2017 and as an assistant and secretary in 2018-2019).

17.5 Fifth, in late 2025, P’s husband received an inquiry from an estate agent about the sale of the Property for redevelopment of the Building. P also received a notice cum questionnaire issued by the IO asking the owners’ preference of selling their units for redevelopment. P tells me that the Building was built over 66 years ago and suffers from gradual deterioration. As such, P and her husband are inclined to sell the Property for redevelopment. She tells me that preliminary discussions with some estate agents reveal that since the Property was not registered in the name of either Madam Yu or P, P would not be able to sell the Property without “purification of the title”.

18.I accept those points. I also agree that Madam Yu was effectively the de facto owner of the Property before her demise. I also note that the declaratory relief is the only and substantial relief sought by P, and therefore the approach of stating in the judgment the footing on which the relief is granted but not giving a declaration to the effect that that footing reflects the legal position, has no application here.

19.In the circumstances, I make a declaration that P is the sole beneficial owner of the estate and interests of and in the land and premises of the Property.

20.As a consequential order, Ms Michelle Wong for P invites me to make a vesting order under sections 45(b)(iii) and (g) of the Trustee Ordinance (Cap 29). After leaving Hong Kong for the USA in 1961, the present whereabouts of D (i.e. the trustee) is unknown. It is not clear whether he is still alive. I am thus satisfied that he is out of the jurisdiction and/or cannot be found. I am equally satisfied that it would be expedient on the facts of this case to grant the vesting order sought.

21.Thus, I make an order vesting the Property, estate or interest therein in P.

22.Ms Wong also asks for a declaration that D held the Property on trust for P since around late 1961. I am reluctant to make this order as it was not pleaded in the ASOC. In any case, the terms of the proposed declaration appear to be ambiguous. In my view, given the orders I have already made, it is not necessary to do justice to P for me to make this further declaration.

23.As to costs, Ms Wong asks for costs of this action to be summarily assessed. She has supplied me with a statement of costs of the entire action. On a broad brush approach, I assess the costs of this action at HK$150,000 to be paid by D to P.

Ms Michelle L. Y. Wong, instructed by K. W. Luk & Co., for the Plaintiff

The Defendant was not represented and did not appear