LEE SIU WAH v. THE PERSONAL REPRESENTATIVES OF WONG YUK WEI DECEASED

DCCJ 577/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 577 OF 2009

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J U D G M E N T

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1.  Lee, the Plaintiff, commenced the present action for, among other things, declaration that he was and is the sole beneficial owner of the property registered in the name of Wong, the Deceased.  The personal representatives of the Deceased were named as the Defendant but have never appeared.  At the end of the hearing on 31 December 2009, I gave an order in terms of the draft minutes of order as amended in court.  As indicated, I now give my reasons.

Background

2.  The Deceased was the lawful kit-fat wife of Lee Kwan, also known as Lee Man Wah and Lee Wai Lun, having married in Mainland China in 1929.  There was no child born out of this marriage.  On 6 June 1946, Lee Kwan took Madam Lee Ying as concubine in Mainland China.  After 1949, Lee Kwan, together with the Deceased and Lee Ying left for Hong Kong.  Lee Kwan and Lee Ying have given birth to numerous children.  Lee is one of the sons and was born in Macau in 1953.

3.  Lee Kwan, Lee Ying, their children and the Deceased lived together as a family in Hong Kong.  Lee and his siblings treated both the Deceased and Lee Ying as their mothers.  The Deceased also treated Lee as her son.  She even stated to that effect in her statutory declaration made to the Registration of Persons Office in October 1969. Lee Kwan and Lee Ying underwent official marriage registration in Hong Kong in 1990.

4.  The family used to live in 3 public housing units at Lo Fu Ngam, Kowloon.  2 of these units have subsequently been surrendered in exchange for 2 properties under the Home Ownership Scheme at Tai Wai and Quarry Bay respectively.  After the demolition of the remaining unit at Lo Fu Ngam, Lee and his younger sister together with the Deceased were relocated to Chuk Yuen Estate, Kowloon.

5.  Lee Kwan passed away in February 1994.  In the same year, Lee and the Deceased decided to purchase a property under the Home Ownership Scheme.  This is Flat No. 16 on the 4^th Floor of Block A, Tung Chun Court, No.33 Yiu Hing Road, Hong Kong (“the Property”).  The Deceased was then already 81 years old.  But she agreed to apply as a registered tenant of public housing unit with a view to better priority in the selection of units offered under the Scheme.  The intention was that Lee would solely be responsible for funding the acquisition of the property (at HK$1,056,800).  It was contemplated that the Deceased would either transfer the Property to Lee’s name in due course or Lee would succeed to the Property upon her death.

6.  Completion of the sale and purchase of the Property took place in August 1994.  Lee moved into the Property shortly afterwards.  He has since been occupying the Property exclusively.  All the utilities accounts of the Property were and are still in Lee’s name.  He has been repaying all the mortgage instalments.  The Deceased in fact lived in a village house at Fui Yiu Ha Village, Shatin, next to Lee’s younger sister’s residence.  Lee and his siblings continued to support the Deceased.

7.  No transfer of the Property has been carried out during the lifetime of the Deceased.  The Deceased passed away in April 2000.  Lee and his siblings have once attempted to apply for the grant of Letters of Administration in respect of the estate of the Deceased.  The concubinage between Lee Kwan and Lee Ying in 1946 was actually not recognised under the Republican Civil Code then.  In this case, the same would not be recognised in Hong Kong: see Suen Toi Lee v Yau Yee Ping [2002] HKLRD 197.  In any event, the fact was that the application for grant was unsuccessful.

8.  Lee and his siblings could not be treated as the issue of the Deceased.  Yet no other person who may be in a position to apply for the grant has so far been located.

This action

9.  On 7 February 2009, Lee commenced the present action in respect of the Property.  The claim is based on the common intention between the Deceased and him at the time of the acquisition of the Property or alternatively his actual finding of the acquisition and maintenance of the Property.

10.  By consent, the court ordered on 2 March 2009 that the Official Solicitor be appointed to represent the estate of the Deceased for the limited purpose of accepting service of the writ in this action.

11.  On 19 March 2009, the court further ordered that Lee shall be at liberty to proceed with this action in the absence of any person representing the estate of the Deceased; and any order or judgment made consequently shall bind the estate of the Deceased in the same manner in every respect as if a duly constituted legal personal representative of the Deceased has been or has been made a party to this action.

12.  Lee proceeded with this action by taking out the summons for summary judgment on 14 April 2009.  The summons has been adjourned until 3 September 2009 to be heard before this court.  During that hearing, and upon application, I further adjourned the matter pending substituted service of Lee’s summons.  I also directed that the matter to be resumed to be heard in open court.

13.  Lee has filed various affidavits with documents exhibited to verify the background of this case as summarised above.  Documentary evidence of his financial contributions towards the acquisition of the Property and mortgage repayment was also provided and explained.  As this court has directed, Lee also made himself available for cross-examination during the resumed hearing.  Since no one has come forward to claim on behalf of or under the estate of the Deceased, Lee’s sworn testimony by affidavits was unchallenged.  I also accept his evidence.

14.  For the purpose of this action, Lee’s siblings have declared in writing that they have no interest in or claim to the Property.  Due diligence has been exercised to locate the person(s) who may be act for or claim under the estate of the Deceased.  The likelihood of any such person coming forward is proved unreal.

15.  Being under the Home Ownership Scheme, the Property is subject to the usual prohibition against alienation under section 17B of the Housing Ordinance.  But it is trite the section prohibits alienation by the purchaser of such a property but does not apply in a case where the beneficial interest of the purchaser passes by operation of law: see Ling Wing Fai Billy & Ors v Ling Shui Fai & Ors, HCA 6853/1999, 7 December 2007.

16.  The Housing Authority has been informed of Lee’s claim herein.  In its letter dated 29 June 2009, the Authority confirmed that the alienation restriction shall be removed and the Property may be alienated freely in the open market so long as Lee: (a) obtains a court order for the transfer of the ownership of the Property to him; (b) obtains the court’s authorisation for him to make the application for premium assessment on behalf of the estate of the Deceased; and (c) pays any premium so assessed.

17.  In the circumstances of this case, I am satisfied that an order should be made in favour of Lee.

Order

18.  I therefore made the following order:

“(1)   Declaration that the Property is held by the Defendant for and on behalf of and as trustee of the Plaintiff who is entitled to the sole beneficial ownership therein;

(1)   The Defendant do deliver up all the title deeds and documents relating to the Property and in their possession, custody or power to the Plaintiff;

(2)   Messrs Chow Griffiths & Chan be appointed to act for the Plaintiff in the transfer of the Property;

(3)   The Registrar of the District Court be appointed to execute   conveyance and/or assignment of the entire interest and title of the Property to the Plaintiff so as to give effect to this Order, pursuant to section 51 of the Trustee Ordinance, and to execute all the necessary documents for the transfer or redemption of the Legal Charge entered between Shanghai Commercial Bank Limited and the Defendant dated 19 August 1994 and registered in Land Registry by Memorial No. UB6118153 to the Plaintiff;

(4)   The Plaintiff be authorised to make the application for premium assessment on behalf of the estate of the Deceased, and the Plaintiff shall pay the premium as determined by the Hong Kong Housing Authority upon transfer of the Property; and

(5)  No order as to costs of this action.”