Wong Kum Chi v. Lee Tit Ying

DCMP 2941/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2941 OF 2001

____________________

___________________

___________________

Coram : HH Judge Lok in Court

Date of hearing : 2 & 4 January 2002

Date of handing down of reasons for decision: 9 January 2002

___________________________

REASONS FOR DECISION

___________________________

1.By way of originating summons, the Plaintiff is asking the court to vacate the registration of an Instrument of Transfer with the memorial no. 8332048 ("the Instrument") which is pending for registration in the Land Registry. In the hearing, I was not satisfied that the District Court did have jurisdiction to make the order as sought by the Plaintiff, and I therefore transferred the proceeding to the Court of First Instance. I now give my reasons for such decision.

2.The Plaintiff is the administratrix of the estate of Lee Wing Chong, deceased, and such estate included the property in issue known as Flat U, 14th Floor, Man Wo Garden Mansion, Kwun Tong ("the Property"). The Defendant is the son of the deceased, and he occupied the Property at all material times. In an earlier proceeding, DCMP No. 2833 of 2000, the Plaintiff, in order to administer the estate, applied to the District Court for an order to recover possession of the Property under Order 113 of the Rules of the District Court, Cap. 336. Master granted the order on 15 January 2001. However, the Defendant was not satisfied with such decision, and he therefore lodged an appeal which was heard by myself on 9 March 2001. In that hearing, the Defendant produced the Instrument, which contained instruction given by the deceased to a solicitors' firm to prepare for an assignment to assign the deceased's interest in the Property to the Defendant by way of gift, and the Defendant sought to rely on the Instrument to establish his interest in the Property. However, based on the doctrine that "equity will not perfect an imperfect gift" and that the Instrument did not amount to a declaration of trust, I rejected the Defendant's argument and dismissed the appeal.

3.After the hearing and in or about mid-March 2001, the Defendant lodged the Instrument with the Land Registry for registration, and it was for this reason that the Plaintiff brought the present proceeding against the Defendant asking the court to vacate the said registration.

4.While I agree that the Plaintiff may have merits in her application, I do not accept that the District Court does have the jurisdiction to grant the order as sought by the Plaintiff. District Court is a court created by statute, and so its jurisdiction and power are limited by the provisions in the District Court Ordinance, Cap. 336 ("the Ordinance"). Unless there are provisions in the Ordinance, or other relevant ordinances such as the Inland Revenue Ordinance, Cap. 112, which empower the District Court to determine a particular kind of claim, the District Court simply has no jurisdiction to deal with the matter. Unlike the Court of First Instance, the District Court has no inherent jurisdiction to hear all kinds of claim.

5.The main provisions in the Ordinance which confer jurisdiction on the District Court are sections 32 (for actions of contract, quasi-contract and tort), section 33 (for actions to claim for money recoverable by enactment), section 35 (for actions for recovery of land) and section 37 (for certain specified actions relating to equity jurisdiction). It is clear that the present proceeding does not fall within any of the categories of cases mentioned above, and so the District Court cannot invoke these provisions to establish jurisdiction in the present case.

6.At one stage, Mr. Ngan for the Plaintiff sought to rely on section 36 of the Ordinance to establish jurisdiction. Section 36 reads as follows:

"36. Jurisdiction where title in question

The Court has jurisdiction to hear and determine any action which would otherwise be within the jurisdiction of the Court and in which the title to an interest in land comes into question if:

(a) for an easement or licence, the rateable value, determined in accordance with the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the land, over which the easement or licence is claimed, does not exceed $240,000; or

(b) for any other case, the rateable value, determined in accordance with the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the land, does not exceed $240,000." (emphasis added)

7.After perusing the wordings of the said section in some detail, it is clear that section 36 is not a provision which, subject to the monetary limits stated therein, confers jurisdiction on the District Court to deal with all actions relating to title in land. In other words, section 36, unlike sections 32, 33, 35 and 37, is not a "jurisdiction-conferring" provision. The important wordings are definitely "which would otherwise be within the jurisdiction of the Court", and so the effect of this section is impose an addition limitation on the District Court to deal with actions involving title in land. Hence, if an action based on, say, breach of contract also involves title in land and the District Court wants to exercise jurisdiction to hear the claim, then apart from the monetary limit of $600,000 as provided for in section 32, the rateable value or the annual value of the land concerned must not exceed the limits as provided for in section 36.

8.To me, the heading of section 36, which reads as "Jurisdiction where title in question", is quite misleading. It seems to suggest that the District Court, subject to the monetary limits stated therein, does have jurisdiction to deal with all kinds of action involving title in land. Unfortunately, this is not the case.

9.I have also considered the other provisions in the Ordinance. Section 48 (1) provides that the District Court, in dealing with the cases before it, has the same power as the Court of First Instance to grant relief, redress or remedy, and section 52 extends the jurisdiction of the District Court to grant injunctions and declarations. However, in my judgment, these provisions only provide ancillary jurisdiction to the District Court to make various kinds of order once the jurisdiction to hear a particular case has been established. The wordings of these provisions are not to extend the primary jurisdiction of the District Court, and hence I cannot rely on these provisions to make the order as sought by the Plaintiff.

10.Mr. Ngan has also referred me to sections 19 and 20 of the Land Registration Ordinance, Cap. 128, under which the court may make an order to vacate the registration of any lis pendens in the Land Registry without the consent of the party who registered it. However, as I see it, these provisions do not confer a general power on the District Court to vacate the registration of any lis pendens. It is only when the District Court can invoke the "jurisdiction-conferring" provisions in the Ordinance to hear a particular case that the court can, if necessary, rely on these provisions to vacate the registration of any lis pendens. Hence, I do not accept that the Plaintiff, or indeed the District Court, can rely on these provisions to establish jurisdiction in the present case.

11.Despite what I have mentioned above, I am not suggesting that the District Court has no jurisdiction to hear any actions involving title in land. In most of these cases, the plaintiff's claim would fall within one of the categories of cases mentioned in the other "jurisdiction-conferring" provisions, and in such circumstances, the District Court can properly exercise its jurisdiction to hear the matter. Hence, practitioners should be cautious in determining the proper forum for commencing such kind of action.

12.Based on the aforesaid, and with some sympathy for the Plaintiff, I am not convinced that the District Court does have jurisdiction to make the order as sought by the Plaintiff, and I therefore transferred the proceeding to the Court of First Instance. As this case involves an issue of some concern, I have directed that the hearing on 4 January 2002 be conducted in open court. In such circumstances, this Reasons for Decision can be circulated without the usual restrictions relating to proceedings in chambers.

Representation:

Mr. Ngan Siu Lun of Messrs. Lousich, Lau & Ngan for the Plaintiff

Defendant, absent