Chui Kwok Ying v. Yue Sing Loong and Others
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IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 1305 OF 1968 ----------------- BETWEEN
----------------- Coram : Li, J. ------------------------ J U D G M E N T ------------------------ 1. This is an action for a declaration that the 19 defendants named in the writ are not entitled to remain on the piece of land known as New Kowloon Inland Lot 2791 and New Kowloon Inland Lot 2869, for an injunction to restrain the defendants, their representatives, agents or servants to remain on the said piece of land, for damages for trespassing and costs. 2. Bytheir Statement of Claim the plaintiffs allege that the land known as New Kowloon Inland Lot 2791 formerly, is now known as New Kowloon Inland Lot 2791 and 2869. The land was originally Crown land.By a Crown lease dated the 14th of May, 1940 the said land was granted to one Sui Fong Cinema Co. Ltd. 3. On the 18th of May - four days later - 1940, Sui Fong Cinema Co. Ltd. mortgaged the said land to one Ho Shun Hing. On the 21st of April, there was a furthercharge of the land to the same party Ho Shun Hing. On the 21st of March, 1950 Ho Shun Hing assigned the whole mortgage and charge to one Kwan Kai Ming. 4. On the 5th of May, 1952 Kwan Kai Ming sold and assigned the land to one Wong Po Hong in his capacity of mortgagee, exercising the power of sale. 5. And on the 24th of October, 1964 Wong Po Hong sold and assignedthe Crown lease of land to the plaintiff. Such sale and title were registered at the Land Registry in 1968. The plaintiff then found the 19 defendants in occupation and refused to move. Thus on the 14th of October, 1968 the plaintiff issued a writ and the particulars of claim as aforesaid were filed on the 16th of January, 1969. 6. All of the 19 defendants except the 8th, the 15th and the 19th defendants entered an appearance and filed a defence dated the 14th of March, 1969. 7. The defence may be summarized under two headings. One is that while making no admission to the plaintiff’s title because the defendants challenge thesale by Kwan Kai Ming to Wong Po Hong in 1952. They further allege that this sale was challenged by the Sui Fong Cinema Co. Ltd. in O.J. Action No. 87 of 1967. Thus the plaintiff’s title is alleged to be defective. 8. The second limb of the defence is that even if the plaintiff were the owner at the moment,the defendants are at all material times tenants of the Sui Fong Cinema Co. Ltd., and therefore the plaintiff’s title must be saddled with these tenants, as the plaintiff could not obtain anything better than the original owner of the land. 9. At the beginning of the hearing Mr. Zimmern, learned counsel for the plaintiff, exhibited two documents: one, and extract of registration in the Land Registry, Exhibit P5, and a court order dated December 1971, Exhibit P6. Now, the extract shows that the plaintiff is registered as owner of the piece of land as New Kowloon Inland Lot originally known as 2791 and now known as 2791 and 2869. And that in Exhibit P6, this court order dated December 1971 vacated the registration of the Lis pendens, registered in 1967 affecting the land. In other words, so far as the O.J. Action 87 of 1967, it is no longer registered against the title of the land as lispendens. 10. I am not entitled and I am not prepared to go behind the order. I have to accept it asit stands. For this reason the first limb of the defence is completely gone. There remains, however,thedefence that the defendants are tenants of theSui Fong Cinema Co. Ltd. In view of the nature of this defence and on the principle that he who alleges must prove, I order that it is for the defendants to begin the case by proving their tenancy. When the defendants were called on to begin the case I am asked to adjourn this case by the defendants for a period of four months so as to enable them, in those four months, to accumulate sufficient funds to engageanother solicitor to re-consider the defence. Perhaps I should add that throughout the interlocutory proceedings, all the remaining 16 defendants, were represented by a firm Messrs. Hastings. Then in January 1972 there was anotice that Hastings & Co. has no further instructions. Hence the defendants appear in person. All I can say is that it is extremely unfortunate that in the last minute the defendants should be left to appear in person. Although in name and in law Hastings & Co. represented them up to January this year, yet nothing was done for the defendants in compliance with the Order for discovery of documents. However, this action started in 1968; pleadings were filed in 1969, and now it is exactly three years after. If, as the defendants said that Hastings & Co. declined to act any further for them for insufficient funds, it is quite apparent that in the last three years the Defendants had done nothing to accumulate funds. I cannot see how in another four months they could achieve what they have failed to do in the last three years. Besides, for the last three years there has been a system of legal aid in Hong Kong. A litigant, depending on the merit of his case may not require funds at all. The public is paying for the litigation of poor litigants. The defendants did not see fit to avail themselves of these facilities. I can’t help feeling that this application for an adjournment is merely yet another manoeuvre for a further delay. Hence I ordered that the trial should proceed and I refused to grant an adjournment. 11. Of the 16 remaining defendants some are even absent at the trial. The 9th, the 11th, the 12th, the 16th, 17th and 18th defendants are absent at the trial. Only the remaining 10 appeared and gave evidence. It is sufficient to say that having considered their evidence, the best they can claim was that they were original occupiers of that piece of land some time during the Pacific War or after the War. It was only at a certain stage that one Miss Wong, who claimed to represent the Sui Fong Cinema Co. Ltd., collected rent from them from month to month. But then for the last ten years no rent had been collected from them at all. 12. All of them repeat the same request - that the case be adjourned for 4 months and they ask for a lot of other matters in which I have no power and no jurisdiction whatever and they are completely irrelevant. 13. Having regard to the evidence, I find as a fact that the defendants appearing before me and giving evidence have all failed to establish a tenancy, even between themselves and the Sui Fang Co. Ltd. Even if I am wrong in holding this way and even if they were given a tenancy by the Sui Fong Cinema Co. Ltd., it was given after the land had been mortgaged to Ho Shun Hing. Such letting or granting of the tenancy has no binding force on the mortgagee after the land had been mortgaged. If Ho Shun Hing is not bound, similarly her successors in title are not so bound. When Kwan Kai Ming exercised the power of sale the land would not be burdened by whatever existing tenancies that had been granted by the original mortgagor. No mortgagor can grant a tenancy to affect the right of the mortgagee in such circumstances. This is quite apparent in the passage in Halsbury’s Law Vol. 23, para. 1012 on p.423 to which Mr. Zimmern directs my attention. Under the circumstances the defendants must fail. 14. As to the 8th, the 15th and the 19th defendants, these 3 have either failed to appear to enter an appearance or failed to file any defence. I have already granted an order in terms of a motion for judgment against these 3 when Mr. Asome appeared for the plaintiff. As to the defendants who are absent, namely, the 9th, the 11th, the 12th, the 16th, the 17th and the 18th defendants, they have failed to appear at the hearing and failed to prove what they allege in their defence. Judgment must be given against them. As to the remaining 10 defendants, as I have held that they have failed to prove their tenancy, and the facts of the case the law are against them. I have no option but also to give judgment against them. 15. The net result is this: that there shall be a declaration in terms of the plaintiff’s claim and an injunction t issue against all defendants. As to damages, I understand the main object of the plaintiff is to regain possession and I un erstand this is something that I may be able to do, as I understand the defendants are small traders and poor people. I grant a nominal damage of $50 against each defendant. And of course costs would have to follow the case and they have to pay costs.
A. Zimmern, M. Asome (Lo & Lo) for plaintiff. lst-8th, 10th, 13th-14th defendants in person Please refer to CACV19/1972 for the relevant appeal(s) to the Court of Appeal. |