Lee Tak Kiu v. All Unknown Persons in Occupation of the Remaining Portions of Lot No. 136 and The Remaining Portion of Lot No. 138 Both in Demarcation District No. 5 Together With the Messuages Erections and Building Thereon, Tai Po, New Territories, Hong Kong and Another
Read the full judgment text of DCMP 3097/2009 on BabelCite. This District Court judgment was delivered on 4 October 2010.
1. Madam Lee , the Plaintiff, acquired the captioned land in Tai Po, New Territories (“ the Premises ”) in October 2009. By summary proceedings, Lee obtained an order for possession against the unknown persons occupying the Premises collectively named as the 1 st Defendant. Writ of possession followed. SMC then applied to join as a party to these proceedings. As the 2 nd Defendant, she now applies to have the order for possession and writ of possession set aside.
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DCMP 3097/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 3097 OF 2009 ____________
Coram: His Hon Judge Leung in Chambers (open to public) Date of hearing: 13 September 2010 Date of decision: 4 October 2010 D E C I S I O N 1.Madam Lee, the Plaintiff, acquired the captioned land in Tai Po, New Territories (“the Premises”) in October 2009. By summary proceedings, Lee obtained an order for possession against the unknown persons occupying the Premises collectively named as the 1st Defendant. Writ of possession followed. SMC then applied to join as a party to these proceedings. As the 2nd Defendant, she now applies to have the order for possession and writ of possession set aside. Background 2.In 1965, Madam Leung Ho Yin (“Madam Leung”) and Madam Yiu Wing Mui (“Madam Yiu”) became the owners of Lots 136, 137 and 138 of Demarcation District No. 5 in Tai Po, New Territories as joint tenants. 3.In 1977, Madam Leung passed away. By the right of survivorship, Madam Yiu became the sole owner of the above lots of land. 4.In 1982, Lots 137 and 138 were surrendered to the Government in exchange for compensation. In 1984, Lot 136 was also surrendered to the Government. 5.By her will dated 6 August 1998, Madam Yiu bequeathed and devised her properties to Raymond Cho (“Cho”) and his wife in the following terms:
6.Upon Madam Yiu’s death, Cho and his wife obtained the grant of probate on 22 June 2005. The grant recorded that Madam Yiu passed away on 2 February 2005. 7.More than 4 years later, in late July to early August 2009, Cho applied to amend the schedule of properties annexed to the probate by adding the remaining portions of Lots 136 and 138, i.e., the Premises. This met with the reply from the Inland Revenue Department that a set of estate duty clearance papers in respect of the Premises had already been issued to SMC on 22 August 2008. 8.Through his solicitors, Cho wrote to the then solicitors for SMC, questioning the capacity of SMC to apply for and to obtain the clearance papers in respect of the Premises. No reply had been received. 9.On 11 September 2009, Cho nevertheless filed a corrective affidavit so that the Premises were added to the schedule of properties of the late Madam Yiu covered by the probate. 10.Cho proceeded to sell the Premises to Madam Lee. By an assignment dated 22 October 2009, Madam Lee acquired the Premises at the price of HK$250,000, the same value as added to the schedule of properties to the probate in respect of Madam Yiu’s estate. 11.At the moment, a monastery by the name of常寂園 (“the Monastery”) occupies the Premises and provides columbarium facilities. 12.Madam Lee commenced the present proceedings by way of originating summons under O.113 of the Rules of the District Court on 11 November 2009. In default of appearance, Madam Lee obtained the order for possession on 14 December 2009. Writ of possession was issued on 25 February 2010. 13.By summons dated 25 March 2010, SMC asserted right as an occupier of the Premises and applied to be joined as a party. The Master granted the order on 21 June 2010. 14.By summons dated 25 June 2010, SMC applies to set aside the order for possession and the writ of possession. Execution of the order for possession and the writ of possession has so far been stayed, pending the determination of SMC’s application. The principles 15.The application to set aside was taken out pursuant to O.13, r.9 of the Rules. It is the burden of SMC to explain her default that allowed the order for possession to be obtained. Unless the order was irregularly obtained, SMC has to satisfy the court that her defence has a real prospect of success. Regular judgment 16.According to the affirmations of service, the solicitors for Madam Lee served the legal documents in these proceedings on 11 November 2009 and 4 January 2010. Because no letter box was found at the Premises, the documents were affixed to the gate/door of the Premises. Photographs of the documents so affixed to the Premises immediately after the service were produced as evidence. 17.In her affirmation, SMC seems to be suggesting that she was out of Hong Kong when these proceedings were commenced. The daily management of the Monastery was in the hands of her followers and voluntary workers. Lee Y Y claims to be one of them. 18.Lee Y Y confirmed that the letter box of the Premises was actually situated at the entrance to the village; and mail would not be delivered to the Premises. But he denies knowledge about these proceedings until the bailiff arrived at the Premises on 11 March 2010. Much was said about the manner and the hour of the day in which the solicitors for Madam Lee served the documents at the Premises. He went so far as suggesting that the court orders were obtained as a result of the court having been misled by dishonest practice. The allegations are clearly made against the professional conduct of the solicitors for Madam Lee. 19.In his submission, whilst Mr Lung for SMC also suggested that how Madam Lee’s solicitors have served the documents was highly suspicious, he acknowledged that suspicion alone cannot render the service irregular. Mr Lung would only go so far as saying that there is significant doubt on whether the documents were really served at the Premises. 20.In my view, this does not suffice, especially in view of the apparently serious allegations against the professional conduct of Madam Lee’s legal advisors in effecting service. It is the burden of SMC in this application to satisfy the court that the order was obtained by default as a result of irregular service. I am not satisfied that such burden is discharged. Mr Lung seemed to acknowledge that and was prepared to proceed on the basis that the orders were regularly obtained. 21.In the premises, there is no question of whether SMC is entitled to have the orders set aside as of right. She has to satisfy the court that her defence has a real prospect of success. SMC’s case 22.Various affirmations have been filed on behalf of SMC. Her own affirmation came as the last of them and is relatively brief. 23.According to SMC, the Premises have always housed a Buddhist monastery for over a century which eventually became the Monastery. Madam Yiu, alias Sik Che Ying, was then the住持 (ji-tzi or the keeper) of the Monastery. In 1987, SMC became Madam Yiu’s disciple. 24.In 1991, Madam Yiu handed over the role of the keeper of the Monastery to her. SMC produced a Chinese handwritten document dated 13 December 1991 (“the Chinese Document”) in support. The document reads:
25.Essentially, the Chinese Document says that due to health reasons, Madam Yiu entrusted to SMC the responsibility of restoring the Monastery and managing it in the future. 26.For years, the Monastery and the Premises had been left in a dilapidated state. The photographs apparently taken in 2007 at the Premises evidence that. The structure existing at that time was nothing more than ruins and the Premises were covered with thick vegetation. However, Lee Y Y alleges that SMC used to camp at the Premises. Lee F T, claiming to be a resident of the village for the last decade, deposed to similar effect. 27.SMC’s case is that in about 2007, the Monastery started to be restored. The restoration was completed in one year. The photographs taken at the Premises in 2008 evidence that. As mentioned above, SMC allegedly often travels and preaches outside Hong Kong. The daily management of the Monastery is left in the hands of his followers and voluntary workers. Madam Lee’s case 28.According to Cho, Madam Yiu was his aunt, with whom he had maintained a close relationship. Madam Yiu had run a business of selling flowers until 1960. Since then until 1997, she had practised as an acupuncturist. Due to her old age and health condition, Madam Yiu moved to an elderly home in 1997 where she stayed until her passing in 2005. 29.According to Cho, he and Madam Yiu had had frequently gatherings during her lifetime. It was in 2009 when he discovered that Madam Yiu had not fully disposed of her interest in Lots 136, 137 and 138 by way of exchange with the Government in the 1980’s. This caused him to apply to amend the schedule of properties to the probate in respect of her estate mentioned above. 30.According to Madam Lee, she visited the Premises on 23 October 2009 after the assignment. She discovered that the Premises were being occupied by others. She called Cho. Cho recalled that he last visited the Premises in 2007 when the old structure erected there was in a dilapidated state and was vacant. The aerial photographs of the Premises during the period between 2006 and 2009 kept by the Lands Department show that a new building was being constructed only in 2008 and completed in 2009. The observation seems to be in line with SMC’s case on the condition of the Premises prior to the restoration of the Monastery. 31.The fact is that the Monastery now occupies the Premises and provides columbarium facilities including niches for urns. Leung S C, friend of Madam Lee, explained in his affirmation what he discovered in June 2010 when he posed as a potential customer to acquire niches for urns at the columbarium there. 32.According to Cho, Madam Yiu was devoted to Buddhism, but had never become a nun or keeper of any establishment including the Monastery. He was never told that she was the teacher and had a disciple called SMC. Nor has he ever seen any photograph of anyone by the name of SMC. No one claiming to be SMC attended Madam Yiu’s funeral service in 2005 either. 33.Cho is adamant that the Chinese Document did not come out of Madam Yiu’s hand as he is familiar with her hand-writing. This is corroborated by Kan K H, who first came to meet SMC and others in a Buddhist ceremony at Yuen Long in 2007. That was also said to be the occasion on which the idea of restoring the Monastery came about. Kan K H gave details of how SMC came to produce the Chinese Written Document. According to him, SMC admitted that she never knew Madam Yiu and had the Chinese Document prepared for the purpose of establishing that she was the rightful successor of the Premises. He however turned down SMC’s request to attest to the false document. 34.The documents show that SMC had once been a director of one Buddhist Chee Hong Charity Foundation Limited in Hong Kong in 2008. In connection with the restoration of the Monastery, that company was involved in another action DCCJ No. 4596 of 2008. Lee K F, in his affirmation filed on behalf of Madam Lee, explained how he came to meet the persons mentioned above including SMC in 2006-2007. He also explained the dispute leading to DCCJ No. 4596 of 2008 and the allegedly illegal use of the Premises to provide columbarium facilities. But that action came to a halt after the close of pleadings in late May 2009. The dispute 35.The numerous affirmations filed on behalf of Madam Lee and SMC show that the following major issues are in dispute:
36.The allegation that SMC used to camp at the Premises prior to the restoration of the Monastery in 2007 is not easy to accept, in view of the condition of the Premises at the time as depicted in the contemporaneous photographs produced. 37.The documents from the Tai Po District Office in 1981 show that the lots of land in question were agricultural land. One Chak Yuen became the owner of the lots of land in 1935 and 1965. Madam Leung and Madam Yiu succeeded to the land in 1965. That the Monastery or its former presence has existed in the Premises for over a century remains a verbal allegation to be tested against this documented background. 38.On the other hand, there was probable religious association between the owners of the Premises. The documents show that both Madam Leung and Madam Yiu had alias starting with the Chinese character “釋” (Sik), commonly understood to be alias conferred upon conversion to Buddhism. I also cannot ignore the fact that the Premises, where the ruin-turn-monastery is situated, were for some reason left out of Madam Yiu’s surrender to the Government in the 1980’s. 39.Mr Chow pointed out that contrary to the documentary evidence, SMC stated in her affirmation that Madam Yiu passed away on 26 December 1997. But since 26 December 2007 happened to the date of death of Madam Leung instead, I cannot rule out the possibility of mistaken reference. 40.As to the Chinese Document, it was suggested even on behalf of Madam Lee that the determination of the dispute as to its authenticity may entail the obtaining of handwriting expert evidence. 41.These are examples, but suffice to illustrate that the dispute as to the background of the Premises and the Monastery as well as the authenticity of the Chinese Document is factual. The truth of the parties’ allegations in these respects could not be determined without trial. 42.Mr Chow went on to submit that even assuming that the Chinese Document is genuine, it is invalid for the lack of attestation by witness. Further, the document must have been revoked by the last will of Madam Yiu dated 6 August 1998. The premise of this argument must be that the document was a will so that sections 5(1) and 13(3) of the Wills Ordinance, Cap.30 apply. 43.Indeed, SMC did present the Chinese Document as a will for the purpose obtaining the estate duty clearance in October 2008. But the stance of SMC has obviously changed since then. The Chinese Document was registered in the Land Registry on 28 April 2009 as a委任受託書, or declaration of trust, with SMC as the trustee. This happened prior to Cho’s alleged discovery of the Premises being left out of Madam Yiu’s surrender of the lots of land to the Government. 44.Short of concluding, I would not read the Chinese Document as a will. On the face of it, Madam Yiu entrusted to SMC the responsibility of restoring the Monastery now and managing the same in the future. It sounds like an inter vivos declaration taking effect during Madam Yiu’s lifetime. 45.Mr Lung submitted that whether the Chinese Document could be construed as a declaration of trust is per se arguable. For the above reasons, I agree. 46.Alternatively, Mr Lung submitted that even if this is not a declaration of trust, it arguably gave SMC possessory right or interest in the Premises for life. When Madam Lee acquired the Premises in October 2009, she did so with constructive notice of SMC’s such interest by way of the declaration of trust registered at the Land Registry since 28 April 2009. That Madam Lee allegedly visited the Premises only after, but not before, the assignment, Mr Lung also submitted, was unusual. Had she visited the Premises before the purchase, there would have been no difficulty for her to see the Monastery, totally restored, and the activities there. 47.The above alternative argument involves factual dispute and points of law that should in my view be resolved by way of trial. 48.Mr Chow then submitted that the Monastery is nowhere found in the register under sections 5, 6 and 15 of the Chinese Temple Ordinance, Cap.153. Therefore the use of the Premises as columbarium is illegal. It would appear that the operation of the Monastery in the absence of registration contrary to sections 5 and 6 of Cap.153 would lead to criminal liability and penalty as stipulated under section 15. In my view, whether and, if yes, how the issue of illegality affects the parties’ respective rights over the Premises remains to be determined in the circumstances of this case. 49.There is dispute as to whether the present activities of the Monastery are commercial rather than charitable in nature. But this would seem to be an issue if SMC will indeed apply, as suggested, pursuant to section 57A of the Trustee Ordinance and O.120 of the Rules of the High Court for a declaration that the Premises are subject of a charitable trust. 50.Last Mr Chow also submitted that SMC is employing delaying tactics. Innocent purchasers will be fooled into paying the illegal columbarium at the Premises. This, he submitted, magnifies the difficult situation in that a more acute choice has to be made vis-à-vis the registered owner and the innocent purchasers. In my view, this is a policy argument that should not have a significant bearing on the determination of the claims of competing interest in the Premises between the parties. Conclusion 51.In view of the dispute, I think that had SMC appeared and put forward her allegations, the court would have concluded that this is not an appropriate case for summary determination under O.113. 52.I am satisfied that the order for possession and the writ of possession should be set aside; and would order these proceedings to continue as if they had been commenced by way of writ pursuant to O.28, r.8 of the Rules. 53.It is not desirable to order all or some of the affidavits filed by the various deponents mentioned above to stand as the pleadings. Formal pleadings should be filed in this case. The parties should by now be able to file their respective pleadings within a tight time table. Order 54.I therefore make the following order:
Mr Edward CHOW instructed by Messrs Tang Lee & Co for the Plaintiff 1st Defendant, in person, absent Mr Vincent LUNG instructed by Messrs Wong & Co for the 2nd Defendant | ||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCMP 3097/2009