Wu Chi Kwong and Others v. The Estate of Cheung Man Yau, Deceased

HCA120/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 120 OF 2007

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BETWEEN

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Before : Mr Recorder McCoy, SC in Chambers

Date of Hearing : 6 August 2007

Date of Judgment : 6 August 2007

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J U D G M E N T

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1.One hundred and two years ago Mr Cheung Man Yau became the registered owner of seven parcels of land in the Ting Kok Area of Tai Po in the New Territories.  He became the registered owner of Lot Nos. 687, 690, 693, 695, 697 and 699 in Demarcation District No. 15, and also of Lot No. 700 in Demarcation District No. 29.  The pieces of land are themselves very small, Lot 687 is 0.01 acre, 690 is 0.02 acre, 693 is 0.07 acre, 695 is 0.05 acre, 697 is 0.01 acre, 699 is 0.05 acre and Lot 700 is 0.02 acre.  The original value of the land is demonstrated by the fact that the annual Crown of rental was $0.02 in relation to the smallest of the properties.  No one has seen or heard of Mr Cheung Man Yau since before 1934.  At the time he purchased the property in 1905, it was a legal requirement that the owner of land be 21 years of age at a minimum.  The court is perfectly entitled to accept that Mr Cheung is no longer with us.  

2.Anxious and detailed enquiries have been made by the solicitors for the plaintiffs to trace Mr Cheung for the purposes of these proceedings.  It hass been established that no probate has ever been taken out in his name in Hong Kong.  Neither the District Land Registry nor the local government and non-government organizations have any knowledge whatsoever of him.  In this regard, the original intention of the plaintiffs was to apply for substituted service but Master Hui, correctly in my respectful view, considered substituted service in this world would be simply futile. 

3.On subsequent application the plaintiffs applied to Master S. Kwang for an order that the Official Solicitor be appointed to accept service of the proceedings in this case.  The learned Master appropriately made such an Order by consent, which has thereby facilitated the disposition of the proceedings today. 

4.One possibility of a practical nature was whether in fact the Registrar of the High Court, who also has the duty of Official Administrator, could have represented the defendant in these proceedings.  Section 10 of the Probate and Administration Ordinance, Cap. 10 provides that the Registrar of the High Court in her capacity as the Official Administrator may only represent an estate, such as this, where a person has died intestate in Hong Kong or elsewhere, leaving estate in Hong Kong.  There is no evidence that Cheung Man Yau died intestate anywhere, and for that reason the Registrar was therefore disabled from accepting service as Official Administrator. 

5.On the evidence which I have carefully pursued, I am fully satisfied that the plaintiffs’ father, Mr Wu Cho Sang, had occupied the properties the subject matter of this case since about 1934.  He actively farmed the properties growing wampis, mandarins, lychees and other fruit trees on them all.  He erected a shed, stored his farming tools and equipment on them.  I am wholly satisfied in terms of the leading decision of Court of Final Appeal, in Wong Tak Yue that he manifested the intention to displace the paper-title of the defendant owner, and that in fact and in law he did that. 

6.Mr Wu Cho Sang passed away in about 1966 and his three sons who are the plaintiffs in this case have inherited these properties and therefore his rights devolved upon them, including the rights of possession of the properties.  Since then the three brothers have individually and in unison actively managed and used the properties in all sense, but in law, as their own.  They have paid government rents and the receipts for government rent are before me.  I am perfectly satisfied that since 1966, at least, the plaintiffs have, by reasons of open, uninterrupted, exclusive possession and occupation of the properties, been in adverse position to the defendant, and therefore by reason of section 17 of the Limitation Ordinance they have acquired all the possessory right, title and interests including the right to exclusive physical occupation of the properties. 

7.There is an issue as to whether in fact the court ought to proceed by a declaration where no notice of intention to defend or no defence has been filed, as here.  However these proceedings are not ex-parte, they are genuinely inter-partes proceedings but where the defendant is absent.  Service has been properly effected on the Official Solicitor.  The issue that falls to be decided then is covered by Order 19/7/20 of the White Book 2007 which states that it is not the normal practice of the court to make a declaration without a trial and refers to the very special situation (which is completely understandable) where there is an allegation of fraud referring to Wallersteiner v. Moir (No. 1) [1974] 1 WLR 991.  In fact, Millett J (as he then was) in Patten v. Burke Publishing Co. Ltd [1991] 1 WLR 541 has made observations to the same effect. 

8.Notwithstanding that generality there are well engraved exceptions.  In my judgment, Madam Justice Chu, with respect, quite correctly approached the matter in Lam Shing Shou v. Lam Hon Man & Others [2002] 1 HKLRD D3 when she granted a declaration in the proceedings before her.  In that case declarations were the only relief sought by the plaintiff and Chu J, while emphasizing that the normal rule should remain, concluded that justice would not be done if the plaintiff was to be denied his declaratory relief. 

9.Further in Lai Wai Kuen v. Wong Shau Kwong, HCA3424/2003, 12 November 2004, Mr Justice Lam in the case which materially involved a person who had not been seen or heard of since 1949, decided that that case before him too was a proper case for a declaration.  Lam J concluded that he was satisfied that the plaintiff had a genuine need for the declaratory relief and that the court could properly grant relief based on the merits of the case. 

10.I find the spirit of these judgments to be directly applicable, so that the general practice should also be modified in a case such as the present one, whether the merits are simply overwhelmingly in favour of the plaintiffs.  It would be wrong for the court not to today purify the titles which have effectively been abandoned by the registered owner since 1934.  

11.The declarations sought in this case are that the defendant has lost the right to bring any action to recover any part of the properties by virtue of section 7(2) of Limitation Ordinance, Cap. 347.  I make that declaration.  The second declaration sought is “that by virtue of section 17 of Limitation Ordinance, Cap. 347 the defendant’s title to any part of the properties has been extinguished and the plaintiffs have acquired all the right, title and interests, including the right to exclusive physical occupation of and in the properties”.  Subject to one minor modification I make that declaration.  The modification is that the word “possessory” shall be before the phrase “right, title and interests”. 

12.So I make both declarations as sought with the second one containing the modification I have referred to. 

13.I make no order as to costs.  

Mr Tommy K.K. Ho, instructed by Messrs Rene Hout & Co., for the Plaintiffs

The Defendant, in person, absent