CHUNG CHIU HING v. THE PERSONAL REPRESENTATIVE OF LAW SAM, DECEASED AND ANOTHER

CAMP 1/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 2384 of 2011)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court of Appeal):

1.  By judgment handed down on 9 June 2017 in HCMP 2384/2011 (“the Judgment”), B Chu J declared that the plaintiff has become the owner of the property situated on 10^th floor, No.450D Queen’s Road West, Hong Kong (“the Property”) and the 1^st defendant’s title in the Property was extinguished as of March 2006 by virtue of section 17 of the Limitation Ordinance, Cap. 347, and dismissed the 2^nd defendant’s counterclaim for an order that the Government is entitled to the Property as bona vacantia pursuant to section 4(9) of the Intestates’ Estates Ordinance, Cap. 73 and the share of net auction proceeds attributable to the Property under the compulsory sale order made in LDCS 27000/2011.

2.  The 2^nd defendant intends to appeal against the Judgment and has served a Notice of Appeal on the plaintiff on 7 July 2017.  The 2^nd defendant, however, has not been able to serve the Notice of Appeal on the 1^st defendant.  The Notice of Appeal has yet to be filed in court.

3.  By summons dated 5 July 2017, the 2^nd defendant commenced these proceedings applying for orders that:

(1) Service of the Notice of Appeal and the Notice of Setting down the Appeal on the 1^st defendant be dispensed with.

(2) Alternatively, service of the above documents on the 1^st defendant be effected by substituted service by advertisement in one Chinese and one English newspaper circulating in Hong Kong.

(3)   Consequential directions on the time for serving the Notice of Appeal on the 1^st defendant, setting down the appeal and giving notice of the setting down of the appeal.

4.  The Plaintiff was legally represented in HCMP 2384/2011.  She has been served with the summons, supporting affirmation and the 2^nd defendant’s skeleton submission in this application.  She has not taken any step in these proceedings.

5.  The facts relevant to this application can be briefly stated. Madam Law Sam (“the Deceased”) was the registered owner of the Property.  As a result of a compulsory sale order made on 8 October 2014 by the Lands Tribunal in LDCS 27000/2011, the land on which the Property was sold by public auction. 

6.  The Deceased passed away on 29 October 1981.  It is the 2^nd defendant’s position that the Deceased died intestate leaving no one entitled to her estate under the Intestates’ Estates Ordinance. Enquiries made by the 2^nd defendant revealed that no probate or letters of administration has been granted in respect of her estate.

7.  In LDCS 27000/2011, service of the Application (Form 32) on the Deceased’s estate (being the 3^rd respondent in the proceedings) was ordered to be dispensed with. 

8.  In HCMP 2384/2011, the Official Solicitor was appointed by the court to represent the Deceased’s estate (being the 1^st defendant in the proceedings) for the limited purpose of accepting service of the Amended Originating Summons.  The court further ordered that the proceedings may proceed in the absence of a person representing the estate.   

9.  For the purpose of effecting service of the Notice of Appeal on the 1^st defendant and to put the question of the 1^st defendant’s intestacy beyond any doubt, the 2^nd defendant had conducted various searches, including probate search, land search, company search and bankruptcy search, and made enquires with government departments and public authorities, including Immigration Department, Inland Revenue Department, Rating and Valuation Department, Social Welfare Department, Department of Health, Transport Department, Hospital Authority, Housing Department and Civil Service Bureau.  The 2^nd defendant had also made enquires with the Divorce Registry of the Family Court and the Coroner’s Court as well as put up an enquiry with solicitors’ firms through the Law Society for existence of wills, codicils and testamentary dispositions. 

10.  In addition, notices calling for information of the last known address or the spouse, next of kin or family relatives of the Deceased had been placed in Chinese and English newspapers. 

11.  None of these efforts has produced information on the spouse, next of kin or family relatives of the Deceased or other information that may assist in effecting service on her estate.   

12.  The 2^nd defendant had further written to the Official Solicitor to enquire whether the Official Solicitor would consent to be appointed to represent the Deceased’s estate for the purpose of accepting service.  The Official Solicitor’s Office replied that the Official Solicitor had become functus officio upon being served with the Amended Originating Summons in HCMP 2384/2011 and asked the 2^nd defendant to consider other options for service.

13.  We are satisfied that the 1^st defendant is a party directly affected by the 2^nd defendant’s appeal and pursuant to Order 59 rule 3(5) of the Rules of the High Court, Cap. 4A should be served with the Notice of Appeal.

14.  We are further satisfied, on the evidence filed in this application, that the 2^nd defendant had made diligent and extensive searches and enquiries to identify and locate person(s) who may represent the Deceased’s estate and to explore feasible option of effecting service on the 1^st defendant.  These efforts have not yielded any fruitful outcome.  

15.  In the circumstances, we are of the view that the appropriate course is to appoint the Official Solicitor to represent the Deceased’s estate for the limited purpose of accepting service.  As the appeal is a set of proceedings separate from HCMP 2384/2011, the concern raised by the Official Solicitor’s Office, namely, the Official Solicitor has become functus officio upon being served with the Amended Originating Summons in HCMP 2384/2011, is misplaced. 

16.  We also direct that after the appeal has been set down for hearing, the 2^nd defendant shall give notice of the hearing by advertising once in a Chinese newspaper and an English newspaper widely circulated in Hong Kong, and thereafter to file an affidavit of service in the appeal proceedings.

17.  Given that the time for issuing the appeal and complying with the other steps prescribed in Order 59 has lapsed, we will grant the time extensions sought.  In this regard, we would point out that, instead of issuing separate proceedings and holding up the intended appeal, the 2^nd defendant could have, after serving the Notice of Appeal on the plaintiff, set down the appeal and then sought directions on service on the 1^st defendant in the appeal proceedings. 

18.  The costs of this application will be in the cause of the appeal.

19.  The orders that we make for the purpose of the appeal to be filed by the 2^nd defendant (“the Intended Appeal”) are as follows:

(1)  The Official Solicitor be appointed to represent the estate of Law Sam, deceased for the limited purpose of accepting service of the Notice of Appeal and the Notice of Setting down the Appeal in respect of the Intended Appeal.

(2)  The Official Solicitors’ costs of and incidental to the appointment be paid by the 2^nd defendant to be taxed on indemnity basis if not agreed.

(3)  The time for service of the Notice of Appeal of the Intended Appeal on the 1^st defendant be extended to 14 days from the date of this order.

(4)  The time for setting down the Intended Appeal be extended to 7 days after the service of the Notice of Appeal on the Official Solicitor.

(5)  The time for giving notice of setting down the Intended Appeal be extended to 4 days from the date of setting down the Intended Appeal.

(6)  The 2^nd defendant shall give notice of the date of the hearing of the Intended Appeal by advertising once in a Chinese newspaper and an English newspaper widely circulated in Hong Kong, and thereafter file an affidavit of service in the proceedings of the Intended Appeal.

(7)  The costs of this application be in the cause of the intended appeal.