Kwun Sau Kam v. Li Yan Lam and Another

DCMP 2866/2025

[2026] HKDC 1916

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2866 OF 2025

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BETWEEN

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DECISION

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I. INTRODUCTION

1.By a Summons dated 8 May 2026, the 2^nd Defendant Wu Baozhu (“D2”) in DCMP 2866/2025 applies as follows: “申訴人吳寶珠反對2026年4月28日下午4時30分 判決令拍賣成套物業，欠債是李恩林與本人吳寶珠無關。本人請求法院撤消2025年2866號案件請求法官批准分契，B房歸吳寶珠所有權，香港合法居住權。就王則左暫委法官2026年4月28 日判令申請上訴許可.” This is D2’s application for leave to appeal against my Judgement dated 28 April 2026 (“Judgment”) (“D2’s Summons”).

II. BACKGROUND

2.In DCMP 2866/2025, D1’s marriage with P resulted in their divorce and an earlier Matrimonial Proceedings FCMC 3290 of 2002 for ancillary relief. There is a sum of HK$819,043.85 being the outstanding balance of the money due from D1 to P and payable under the Charging Order Absolute dated 5 October 2022 pursuant to the Order made by DDJ Lee.

3.P seeks in DCMP 2866/2025 the following reliefs:

(1) The 1^st Defendant to pay the Plaintiff the sum of HK$819,043.85 with interest thereon together with HK$31,230 being the party and party costs and disbursements taxed by the Chief Judicial Clerk on 3 July 2023 pursuant to the Charging Order Absolute made by the Deputy District Judge Lee of the District Court of the Hong Kong Special Administrative Region in Chambers on 5 October 2022 under FCMC 3290 of 2002 which was registered in the Land Registry by Memorial No 22101302100147 (the “Charging Order Absolute”);

(2) A declaration that the beneficial and equitable interest of the Property is held by the 1^st and 2^nd Defendants as tenants in common in equal share;

(3) The 1^st and 2^nd Defendants shall vacate and deliver up vacant possession of the Property to the Plaintiff;

(4) An order for sale of Rear Portion on 2/F, No 62 Ho Pui Street, Tsuen Wan, New Territories (“the Property”) (the full particulars of the Property are set out in the Schedule hereto) pursuant to Sections 3 & 6 of the Partition Ordinance, Cap 352;

(5) The conduct of the such sale of the Property be committed to the Plaintiff’s solicitors;

(6) The parties to this action are at liberty to bid at such sale and to become the purchaser of the Property;

(7) Upon such sale, the Defendants shall do all acts and things necessary to vest the title of the Property in the purchaser and cause all necessary documents required to convey title of the Property to the purchaser to be properly signed and executed, failing which, the Registrar of the District Court or such other person to be appointed by the Registrar be authorised for the purpose of signing and executing all necessary documents and instruments and deeds including, but not limited to, an agreement for sale and purchase and assignment to vest the Property in and/or to convey title of the Property to the Purchaser(s);

(8) The proceeds of sale of the Property be paid to and held by the Plaintiff’s solicitors as stakeholders and be applied in the following manner or order or sequence:-

(i) for discharging all liabilities due to the Government in respect of the Property;

(ii) for payment to prior encumbrancer ranking immediately before the Charging Order Absolute (if any);

(iii) for paying all lawful remuneration, legal costs, charges and expenses properly incurred in the sale or other dealing of the Property;

(iv) after deducting the items (i) to (ii) above, 50% of the remaining proceeds be distributed to the 2^nd Defendant; the other 50% of the remaining proceeds be applied for discharging the 1^st Defendant’s liability to the Plaintiff under the Charging Order Absolute; and

(v) after deducting items (i), (ii) and (iii), any remaining proceeds, if any, be distributed to the 1^st Defendant.

(9) Further and/or other relief and/or directions as this Honourable Court deems just;

(10) ⁠Costs of and occasioned by these proceedings be to the Plaintiff to be taxed if not agreed;

(11) The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations; and

(12) There be liberty to apply.

4.D1 objects to the sale of the Property, but he is not residing at the Property. D2’s request is to partition the Property so that she can continue to occupy Room B of the Property. She also objects to the sale of the Property. D2 also filed an Affirmation dated 23 July 2025 and in her 2^nd Affirmation dated 7 August 2025 requesting inter-alia for the partition of the Property so that she can continue to remain in Room B of the Property. The Property is divided into Room A and Room B.

III. LEGAL PRINCIPLES

5.In my Judgment, I was guided by the Legal Principles governing partition and sales, in particular:

(1) Section 2(b) of the Partition Ordinance, Cap 352 (“PO”) empowers the Court to make an order under section 6 for a sale of the property where the property in land is held by 2 or more persons as joint tenants or as tenants in common.

(2) Section 3(1) of the PO provides where any property in land is held in the manner referred to in section 2, any person interested in such property may institute proceedings in the Court under this Ordinance by way of an action for partition or sale.

(3) Section 6(1) of the PO provides where it appears to the Court that a partition of the property would not be beneficial to all the persons interested by reason of (a) the nature of the land to which the proceedings relate, then, the Court may make an order for the sale of the property.

(4) In Law Chun Wai v Chu Suk Har [2016] 1 HKLRD 224, HHJ Andrew Li (as he then was) granted an order for sale as the plaintiff, the licensed money lender, was an “interested person” and in the circumstance of a small flat of 367 saleable square feet in size held by the 1^st and 2^nd defendants as tenants in common, it was impracticable to make an order for partition of the property. The 1^st defendant had executed a legal charge over his half share as security to the plaintiff and the legal charge was registered at the Land Registry.

(5) In Wong Chun Kei Johnny v Poon Vai Ching [2007] 1 HKLRD 825, Mr Recorder Joseph Fok SC (as he then was) adopted at §§18-19 the following propositions as fairly and accurately stating the law:-

(i) A co-owner has a basic right to rid himself of the shackles of co-ownership and, if he has no other remedy, ask for an order for partition or sale;

(ii) When it is impracticable to make an order for partition, the court should make an order for sale unless it is persuaded, the burden being on the opposing co-owner(s), that such an order would not be beneficial to all the co-owners, or that it will result in very great hardship to one co-owner; and

(iii) Whether an order for sale is beneficial to all the co-owners is not determined by the dissent of the opposing co-owners or the assertion by them that it is not beneficial. It has to be determined by the court objectively.

[my emphasis]

(6) In Silver Wealth Capital Investment Ltd v Lai Wai Cheun [2015] 4 HKC 191, Chow J (as he then was) considered the basic right of a co-owner to rid himself of the shackles of co-ownership and Wong Chun Kei Johnny v Poon Vai Ching was followed.

(7) In Re Inland Lot No 476 [2010] HKCU 574 (unreported, HCMP 1273/2009, 12 March 2010), Bharwaney J summarized that: -

“10. Underpinning these principles is the acceptance that the right of ownership must include the right of disposition. That right takes on more importance particularly when co-owners are uncooperative and unable to fully utilize opportunities for the letting out of commercial premises at favourable rates …”.

6.After considering all the circumstances of the case and the documents before me, including the Affirmation of P and Exhibits KSK-1 to KSK-9, I directed the following:

(1) There be an order for sale of the Property pursuant to sections 2, 3 and 6 of the PO (Cap 352) firstly by way of private treaty within 90 calendar days from the date of this Order, or failing sales by private treaty, by way of public auction;

(2) An order that the conduct of the sale of the Property, if by public auction, shall be as directed and arranged by the P’s solicitors herein and that P, D1 and D2 shall have leave to bid at the public auction;

(3) An order that D1 and D2 shall cause all documents and instruments as necessary for the implementation of the sale of the Property and the conveyancing of their titles to the purchaser(s) to be properly signed or executed by D1 and D2 within 14 days from the sale by public auction, failing which, the Registrar of the District Court or such other person to be appointed by the Registrar be authorised for the purpose of signing and executing all necessary documents and instruments and deeds including, but not limited to, an agreement for sale and purchase and assignment to vest the Property in and/or to convey title of the Property to the purchaser(s);

(4) An order that D1 and D2 shall deliver up the Property vacant possession after the signing of the Agreement for Sale and Purchase;

(5) An order that the proceeds of sale of the Property shall be applied in the following order of priority:-

(a) first, in discharge of all taxes, rates, government rent, and other outgoings due and affecting the Property, if any;

(b) second, in payment of the reasonable costs, charges and expenses necessarily incurred in the sale of the Property (inclusive of conveyancing fees, estate agent’s commission and auctioneer’s fee), if any;

(c) third, for payment of any amount owed to any bank, inclusive of all interests and charges and to discharge of all encumbrances;

(d) fourth, the net proceeds of sale after (a), (b) and (c) to be split into two equal halves, being “D1’s half share” and “D2’s half share”;

(e) D2’s half share shall be paid to D2 forthwith upon D2’s vacate of the Property; and

(f) D1’s half share shall be first be paid to P for the discharge of the Charging Order Absolute in an amount being the total of HK$819,043.85 and together with the sum of HK$31,230.00 being the party and party costs resulted in the Allocatur dated 12 September 2023, with the remaining balance to be paid to D1 upon D1’s vacate of the Property;

(6) Liberty to apply for further directions, if necessary, as to the manner of the sale of the Property and/or the disposition of the proceeds of sale;

(7) As this is P’s application for an order for sales, with this matter largely dealt with on paper, and D1 and D2 appeared in person, I make an order nisi that there be no order as to costs of the application and the hearings and the order nisi shall become absolute in the absence of any application to vary the same within 14 days of handing down; and

(8) The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

IV. LEGAL PRINCIPLES ON LEAVE TO APPEAL

7.The Legal Principles on leave to appeal to the Court of Appeal was discussed in Ricoh Hong Kong Ltd v Wallbanck Brothers Securities (Hong Kong) Ltd, unreported, DCCJ 2454/2013, 18 September 2015 at paras 3-7:

“3. The principles on leave to appeal to the Court of Appeal have been succinctly summarized by Fok JA (as he then was) in Wing Tat Haberdashery Co Ltd v Elegance Development and Industrial Co Ltd [2011] 5 HKC 474 at paras 5-7. These principles are trite and have been consistently applied by this Court and other Courts in the past.

4. In short, they are:-

(1) According to section 63A of the District Court Ordinance, Cap 336, which was introduced as part of the Civil Justice Reform, leave to appeal shall not be granted unless the Court is satisfied that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice that the appeal should be heard.

(2) The test whether an appeal has a reasonable prosect of success under the new statutory provision is the same test as applied before the amendment to Cap 336, namely, whether the applicant for leave can show that he has “an arguable case with reasonable chance of success of appeal”: see Leong JA in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359 at para 5.

(3) The test corresponds with the relevant leave test in section 14AA(4) of the High Court Ordinance, Cap 4 for the grant of leave from a decision of the Court of First Instance to the Court of Appeal in interlocutory matters: see SMSE v KL [2009] 4 HKLRD 125.

5. I agree with Miss Angela Gwilt, counsel for the plaintiff, that the draft grounds of appeal prepared by the defendant amount to an appeal against the fact findings made by this Court as contrast to an appeal on matters of law. As observed by Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1:

“… where the Court of Appeal is satisfied that the conclusion reached by the trial judge on the facts was plainly wrong, it should intervene. If the Court of Appeal is not so satisfied, it should defer to the trial judge’s conclusion even if in some doubt as to its correctness.” (emphasis added)

6. In Bank of China (Hong Kong) Ltd v Tsang Sheung Bun [2013] 5 HKLRD 62, the Court of Appeal cited with approval the recent judgment of the UK Supreme Court in McGraddie v McGraddie [2013] 1 WLR 2477, in which the Supreme Court allowed an appeal from the Inner House of the Court of Session that had reversed findings of fact made by the trial judge. In the judgment of Lord Reed JSC (with whom all the other members of the court agreed), he quoted with approval at paras 3 and 4 statements from a case of the US Supreme Court and a case of the Canadian Supreme Court:

“The rationable for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be the “main event” … rather than a “tryout on the road”… For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.” (Anderson v City of Bessemer (1985) 470 US 564 at 574 to 575)

“The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.” (Housen v Nikolaisen [2002] 2 SCR 235 at §14)

7. I have to agree with the plaintiff’s counsel that the defendant’s allegations as contained in the submissions of its director Mr Phil Chan, as well as the draft grounds of appeal which were attached to the leave to appeal summons, come nowhere close to demonstrate that the fact findings made by this Court in the Judgment was “plainly wrong”.

V. GROUNDS OF APPEAL

8.D2’s grounds of Appeal at her Affirmation dated 8 May 2026 is repeated here:

“法官大人您好！我是申訴人吳寶珠，今次是反對法院2026年4月28日下午4時30分的判決，拍賣我名下的物業份額，請求法院保証我財產和居住權。

事實理由三點：

第一： 荃灣河背街62號三樓後座2F物業，是我和李恩林婚後共同購買，各占50%業權。

第二： 物業上個業主早已分為A、B 2間房，B房一直由我獨居住，水電獨立錶，費用一直由我支出，長期無爭議。

第三： 本次債務完全是李恩林個人債務與我吳寶珠無關。

法律理由三點：

第1： 按《已婚者地位條例》不可以執行我物業的份額。

第2： 這間B房是我唯一居所，拍賣我將無家可歸，法院應以保障我個人財產安全。

第3： 我業權在先，債權人只可以追李恩林份額50%物業權。不可連我一份拍賣。

一、 確証B房獨立權益屬於我吳寶珠個人財產。

二、 立即停止查封拍賣我個人權利份額。

三、 堂費由李恩林承担。”

VI. DISCUSSION

9.The grounds enumerated by D2 do not challenge my findings of fact, the exercise of my discretion nor were there any ground that challenges my application of the relevant legal principles, or that my Judgment is “plainly wrong”. The grounds are a repeat of D2’s grounds already heard at the Originating Summons hearing.

10.As to the three factual points, these are uncontroversial and had been taken into account before the exercise of my discretion to allow the sale of the Property.

11.It is noted at para 23 of the Judgment that D2 actually requested for the partition of the Property, so that she can continue to occupy Room B. D2 further at para 23 objected to the sale of the Property. I note the impossibility of severance the Property and the disallowance of the disposition of the Property would be unjust in that P’s entitlement to D1’s share of the proceeds of sale would have been locked-in ad infinitum.

12.D1’s one-half share in the Property was subject to the Charging Order Absolute, to secure payment of HK$819,043.85 to P pursuant to DDJ Lee’s Order dated 5 October 2022. Unless the Property is sold and its value realized, D1 would remain bound by the co-ownership, contrary to the principle affirmed in Silver Wealth Capital Investment Ltd v Lai Wai Cheun [2015] 4 HKC 191 that a co-owner has a basic right to free itself from the constraints of co-ownership, and P disabled to be paid from the half share of the proceeds of the sale of the Property.

13.As to the three legal points, firstly there is nothing in the Married Persons Status Ordinance, Cap 182 (“MPSO”) that prohibit or otherwise disallow the sale and severance of the proceeds of sales of a property co-owned by D1 and D2, the former husband and wife, the only sensible solution, and D2 has not identified which section of the MPSO she relies upon.

14.As to the second legal point, it is disingenuous that D2 would be left without a place of abode, following the sales of the Property. D2 would not suffer “very great hardship”. Pursuant to my Order at para 26(5)(d) of the Judgement, D2 would receive half share of the net proceeds of sale, and the Property was valued by AA Property Services Limited (“AA”) (Exhibit KSK-7) at HK$2,550,000.00 with the valuation report dated 11 March 2024, and at HK$2,270,000.00 with the valuation report dated 6 October 2025. The net sum received by D2 would enable her to arrange for alternate accommodation. Further, no evidence had been adduced by D2 as to what serious hardship she would face had an order for sale been made.

15.As to the third point, as severance cannot be effected due to the size of the Property, 330 square feet as detailed in the AA Reports and the nature of ownership, it is fair and just to make an order for sales and severance of the proceeds.

16.On the issue of partition or sale, what are to be considered had been summarized at paras 24-30 of the case of Law Chun Wai trading as Fu Tat Finance Company and Chu Suk Har and To Kam Ming, [2016] 1 HKLRD 224, DCMP 1359/2015 (“Law Chun Wai”) (Decision of HHJ Andrew Li as he then was). Relevant paragraphs of Law Chun Wai are repeated here:

“25. Section 6 of PO provides as follows:-

(1) In any proceedings under this Ordinance, where it appears to the Court that a partition of the property would not be beneficial to all the persons interested by reason of-

(a) the nature of the land to which the proceedings relate;

(b) the number of the persons interested or presumptively interested;

(c) the absence or disability of some of the persons interest; or

(d) any other circumstances,

the court may make an order for the sale of the property.

(2) The Court may exercise its powers under subsection (1), notwithstanding the dissent or disability of any person interested.”

26. “Generally, in determining whether a sale is more beneficial than a partition, the court considers only the pecuniary results, disregarding matters of sentiment, and has regard to the interest of all parties interested as a whole; but it can and will order a sale where, in its discretion, it thinks fit, unless the parties opposing a sale undertake to purchase the shares of those desiring sale.” (Halsbury’s Laws of Hong Kong, 2^nd edition, Volume 35, para 230.826) [emphasis added].

27. In Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD 825, the Court held that:-

(1) when it was impracticable to make an order for partition, the court should make an order for sale unless it was persuaded, the burden being on the opposing co-owner, that such an order would not be beneficial to all the co-owners or that it would result in very great hardship to one co-owner; and

(2) whether an order for sale is beneficial to all the co-owners is not determined by the dissent of the opposing co-owners or the assertion by them that it is not beneficial. It has to be determined by the court objectively.” [emphasis added]

28. In considering whether it is impracticable to make an order for partition, the Court would consider the size and design of the property: See Chan Shee Yuen v Chan Shu Fong, unrep, HCA 93/2002 (Deputy High Court Judge To (as he then was); 28 April 2006), Poon Yuet Chun v Tse So Kwun, unrep, HCMP 5662/2001 (Yuen J (as she then was); 29 April 2002).

29. While the Courts would pay regard to the difficulty of a co-owner in seeking alternative accommodation: (Chow Doi Kwai v Chan Cho Yuk [2000] 2 HKLRD 235), a co-owner’s sentimental attachment to the property is irrelevant: (Chan Ching Kit v Lam Sik Shi & Anor, unrep, HCMP 2239/2000 (Kwan J (as she then was); 24 June 2002), Drinkwater v Ratcliffe (1875) LR 20 Eq 528).

30. In Ip Sau Shu v Sham Lai Hing, unrep, HCMP 3452/1999, (Deputy High Court Judge Poon (as he then was); 31 March 2003), a two bedroom flat of about 600 square feet in size was determined to be owned by the plaintiff and the defendant as tenants in common in equal shares. The partition of the property was not suggested to be physically possible. The Court held that even if partition was possible, because the parties had been in a personal relationship which had ended, it would be meaningless to do so. The plaintiff had no savings and no assets other than the property. Since the plaintiff had no way of realizing the value of his half share in the flat unless there was a sale, the Court ordered the sale of the property.”

17.It was my considered view (and it remains my view) that it was and is impractical to make an order for partition, and I therefore made an order for sales of the Property. Reference is also made to para 31 of Law Chun Wai in which the learned Judge found against the partition of a similar sized flat in a multi-storey residential building. Para 31 reads:

“31. The Property in these proceedings is a residential flat in a multi-storey building. It is 367 saleable square feet in size. Expert opinion has not been sought on whether it is physically possible to partition the flat. However, common sense will tell us that since any purchaser could not be expected to be willing to share a flat with the 2^nd defendant, if the property is to be partitioned, an extra entrance has to be made at the corridor for separate entries to the two partitioned flats (183.5 square feet each), if it was indeed possible. In my judgment, given the size of the Property and the doubted feasibility of constructing a separate entrance, it is impracticable to partition the property.”

18.In other words, objectively there is no prospect that an appeal based on the grounds in D2’s Affirmation of 8 May 2026 would succeed. The applicant for leave to appeal, D2 has not shown that she has “an arguable case with reasonable chance of success of appeal”.

VII. DISPOSITION

19.I accordingly refuse D2’s application to me for leave to appeal upon the grounds D2 enumerated.

20.Given the dismissal of D2’s Summons, based on costs to follow the event, it is ordered that if costs are incurred by any party, such costs incurred arising from the D2’s Summons to be borne by D2. P’s costs is summarily assessed at HK$30,000.00.

21.The Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

22.As D2 is acting in person, I direct that this Decision be handed down with the aid of oral interpretation by a Court Interpreter.

Mrs Cecilia Grace Wong, of H Y Leung & Co LLP, assigned by the Director of Legal Aid, for the Plaintiff

The 2^nd Defendant acting in person