WONG CHUN WAH (in his capacity as the administrator pendente lite of the estate of SUAN KUA CHUA also known as CHUA SUAN also known as CHUA KUA SUAN also known as SUAN K. CHUA, Deceased) v. CHINA YINGDE YOUTH EDUCATION INSTITUTE LTD

HCA 15/2025

[2025] HKCFI 3793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 15 OF 2025

____________

____________

_____________

D E C I S I O N

______________

Introduction and Background Facts

1.  By Inter Partes Summons filed on 25 June 2025 (“the Summons”), the Plaintiff (“P”) applies for judgment against the Defendant (“D”) in default of defence pursuant to O.19, r.7 of the Rules of the High Court, Cap. 4A (“RHC”).

2.  By Writ of Summons endorsed with a Statement of Claim (“SOC”) issued on 6 January 2025, P commenced the present action against D. In the SOC, essentially, it is pleaded that:

(1)  The Deceased passed away intestate in the Philippines on 30 July 2007;

(2)  Pursuant to the Order of Master Hui in HCAP 12/2013 (“Probate Action”) dated 4 December 2024, P was appointed the administrator pendente lite of the Deceased’s estate;

(3)  D is a company incorporated in Hong Kong;

(4)  The Deceased became the owner of 19A Java Road, Hong Kong (“the Property”) in 1964. Since the Deceased’s death, the Property formed part of the Deceased’s estate. It remained unadministered due to the pending Probate Action;

(5)  By Originating Summons in HCMP 1035/2023, D, in its alleged capacity as sole registered owner of the Property, sought vacant possession of the Property against the existing tenants and obtained judgment on 15 January 2024 which is subject to an set aside application;

(6)  In HCMP 1035/2023, D filed an Affirmation which alleged that it acquired the Property as donee by way of Deed of Gift made on 7 February 2023 (“Purported Deed of Gift”);

(7)  The Purported Deed of Gift was: (a) made by the Deceased as donor and D as donee on 7 February 2023; (b) registered in the Land Registry on 20 February 2023; and (c) purportedly signed with the common seal by the director of D and leaving a cross mark by the donor; and (d) annexed with a purported certification of a medical director;

(8)  However, the purported Deed of Gift was not in truth executed by the Deceased: (a) the Deceased had died 16 years prior to its creation; (b) the signature or mark of the alleged donor on it was not the Deceased’s; (c) the purported medical certification annexed therewith which stated a medical director had examined the Deceased on 1 February 2023 could not have been the case; (d) on the face of it there were irregularities; and (e) there was no reason to gift the Property to D with whom the Deceased had no dealing with in his lifetime;

(9)  In the circumstances, the purported transfer for the Property is void and/or voidable and liable to be set aside;

(10)  The Purported Deed of Gift and its wrongful registration by D has caused the Deceased’s estate loss and damages to be assessed;

(11)  P seeks: (a) a declaration that the Purported Deed of Gift is void ab initio, alternatively voidable and set aside; (b) an order that D do at its own costs forthwith cause the registration of the Purported Deed of Gift against the Property to be removed from the Land Registry; and (c) damages to be assessed.

3.  On 20 January 2025, D filed an acknowledgement of service.

4.  On 28 May 2025, solicitors for D ceased to be solicitors for D and came off the record.

5.  To date, no defence has been filed. By Order of Master Dick Ho dated 29 April 2025, it was ordered that unless D do file and serve its Defence and Counterclaim by 4pm on 20 May 2025, D be debarred from doing so and P be at liberty to enter judgment against D with costs.

Service of process and non-appearance of D

6.  I am satisfied from the affirmation of service filed on behalf of P that the Summons was properly served on D by leaving the documents at its registered address in compliance with s.827 of the Companies Ordinance, Cap. 622.

7.  Furthermore, given that I am satisfied that the Summons was properly served on D, I am of the view that it is expedient to proceed with the hearing of the Summons under O.32, r.5 of RHC notwithstanding the absence of D at today’s hearing.

8.  Ms Lok SC appeared on behalf of P.

Applicable principles

9.  The applicable principles for default judgment under O.19, r.7 of RHC are well-settled. The power to grant judgment under O.19, r.7 is discretionary. The court is required to scrutinize whether the matters pleaded in the Statement of Claim entitle the plaintiff to the judgment sought. The court’s decision is made on the basis of pleaded facts, rather than on evidence. This is because where no defence is filed, the court will assume that the Statement of Claim has been impliedly admitted. See Hong Kong Civil Procedure 2025, Vol.1, §§19/2/1, 19/7/11 and 19/7/14.

10.  Moreover, the principle that a declaration will not be granted when giving judgment in default of defence is a rule of practice and not of law, and will give way to the paramount duty of the court to do fullest justice to the plaintiff to which he is entitled. However, the declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them: see ibid, §§19/7/14 and 19/7/20.

11.  Even on what might appear to be a straightforward application, the Court does not act as a “rubber-stamp” merely because of the uncontested nature of the application. In each case, it is necessary to consider whether the declaratory relief is properly made out on the pleading, and whether it is appropriate in the overall exercise of discretion for such relief to be granted without a trial: see Cheung Sai Lon v Cheung Sai Ha & Anor [2020] HKCFI 2551 at §32 per Coleman J.

Analysis and Disposition

12.  I accept the submissions of Ms Lok, based on the pleadings which is assumed to be admitted, that the purported Deed of Gift was not executed by the Deceased and/or was forged. It follows that it should be unenforceable, null and void.

13.  The court has inherent jurisdiction to vacate the registration or purported registration of any instrument in the Land Registry which does not affect or no longer affects land and in appropriate case to grant declaration to the effect that a document does not affect or no longer affects land: see e.g. Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594 at §16; Tang Kwok Cheung & Anor v City Wave Development Ltd [2021] 6 HKC 647 at §§11 and 15; and Tong Kin Ming & Anor v The Registrar of Companies [2023] 5 HKC 584 at §§5-8.

14.  In the present case, as the purported Deed of Gift is null and void, it does not affect land and is not registrable under s.2(1) of the Land Registration Ordinance, Cap. 128.

15.  I am also satisfied that a declaration that the Purported Deed of Gift is null and void and should be vacated from the Land Registry should be granted to do fullest justice to P to which he is entitled, to remove any doubt over the title of the Property as between P and D, and to facilitate P’s administration of the Deceased’s estate which includes the Property.

16.  I will make an order in terms of the Summons as amended by me. P’s claim for damages to be assessed against D would fall within the jurisdiction of the District Court. I will therefore order that the assessment of damages be transferred to the District Court and the costs prior to and of the transfer of proceedings be to P to be taxed at the High Court scale. Costs of this application should also be to P to be taxed.