XCHRX LAM SHING SHOU v. LAM HON MAN AND OTHERS

HCA361/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.361 OF 2001

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J U D G M E N T

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1. This is an application for judgment in default of notice of intention to defend under Order 13, rule 6 and Order 19, rule 7 of the Rules of High Court. After hearing submissions, I made two declarations to the effect that the approvals to successions of ownership in the land in question given in 1947 by the then District Officer, New Territories and in 1997 and 1998 by the District Officers of Yuen Long District Office and North District Office should not have been given. My reasons appear as below.

Background

2. Briefly stated, this action concerns 21 lots of land in the Northwest New Territories in Yuen Long ("the Properties"). Prior to 19 August 1947, they were registered in the name of Lam Kam Tak alias Lam Shu Fat, deceased ("the Deceased").

3. By a succession to property dated 19 August 1947, one Lam Shui Yan was registered as the successor to the Deceased in relation to the Properties ("the 1st Succession"). According to the records of the North District Office, Lam Shui Yan reported to the District Office that the Deceased died in 1939 and he was the Deceased's nephew. The District Officer, New Territories granted Lam Shui Yan approval to succeed to the Properties after notice of intended succession had been posted with no objection received. The relevant memorial (Memorial no. 117603) recorded Lam Shui Yan as the nephew of the Deceased.

4. Lam Shui Yan died on 18 January 1963. The 1st to 3rd defendants are his grandsons.

5. By a letter dated 19 April 1997 to the 1st to 3rd defendants, the District Officer of Yuen Long District Office approved the 1st to 3rd defendants' application to succeed as tenants-in-common to lot no. 1416 D.D.No. 96 of the Properties with effect from 18 January 1963. The letter of approval was registered in the New Territories Land Registry under Memorial No. 747161.

6. By another letter dated 23 July 1998 to the 1st to 3rd defendants, the District Officer of North District Office approved the 1st to 3rd defendants' application to succeed as tenants-in-common to the other 20 lots of the Properties with effect from 18 January 1963. The letter was registered under Memorial No. 425703.

7. According to the plaintiff, the Deceased died in Shenzhen in 1952 and Lam Shui Yan was not the Deceased's nephew. The plaintiff claims to be the adopted son of the Deceased.

The action

8. On 19 January 2001, the plaintiff issued the Writ herein. It is the plaintiff's case that the 1st Succession was obtained by fraudulent misrepresentations and that the succession by the 1st to 3rd defendants to the Properties ("the 2nd Succession") is tainted with the fraud of the 1st Succession. The plaintiff claims for declarations that the 1st Succession and the 2nd Succession were void and of no legal effect, and that the plaintiff is the only successor to the estate of the Deceased and entitled to succeed to the Properties. The plaintiff also claims against the 1st to 3rd defendants damages in fraud. This was subsequently abandoned.

9. Apart from the 4th defendant, none of the other defendants had filed notices of intention to defend. On 27 April 2001, the plaintiff discontinued the proceedings against the 4th defendant. According to Mr Vaughan for the plaintiff, the discontinuance is the result of the 4th defendant agreeing and on the understanding that the 4th defendant agrees to be bound by the outcome of these proceedings.

The application for judgment

10. On 16 May 2001, the plaintiff took out the present summons for judgment. The first hearing was before Mr Recorder Tang SC on 31 July 2001. The summons was adjourned sine die with liberty to restore. The reasons and the circumstances leading to the adjournment were set out in the Ruling dated 31 July 2001. Since then, the plaintiff had filed further evidence on the use and occupation of the Properties since the 1940s. This is to deal with Mr Recorder Tang SC's concern that there is a lack of evidence as to the use and occupation of the Properties and whether the Deceased's title may have been extinguished by adverse possession. The further evidence shows that the Properties have been leased out as farmland, with part of it being converted into fish ponds in 1982, and that rents have been collected on behalf of the plaintiff.

The relevant legal principles

11. The starting point in considering this application is to note that the Court's power to grant judgment under Order 19, rule 7 is discretionary and not mandatory : see Hong Kong Civil Procedure 2002 Vol.1, para.19/7/13 and that the Court is to give judgment according to the pleadings so that it is not necessary on the hearing of the summons for judgment to prove the case by evidence : Hong Kong Civil Procedure 2002 Vol.1, para.19/7/11.

12. It is also not the normal practice of the Court to make a declaration without a trial. In Wallersteiner v. Moir [1974] 1 WLR 991, Buckley LJ said, at p.1029 :

"It has always been my experience, and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v. Powell [1894] W.N. 141, where Kekewich J., whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence. If declarations ought not to be made on admissions or by consent, a fortiori they should not be made in default of defence, and a fortissimo, if I may be allowed the expression, not where the declaration is that the defendant in default of defence has acted fraudulently. Where relief is to be granted without trial, whether on admission or by agreement or in default of pleading, and it is necessary to make clear upon what footing the relief is to be granted, the right course, in my opinion, is not to make a declaration but to state that the relief shall be upon such and such as footing without any declaration to the effect that that footing in fact reflects the legal situation."

13. In Patten v. Burke Publishing Co. Ltd [1991] 1 WLR 541, Millett J observed, at p.544A, that in the absence of a judgment reached after hearing evidence, a declaration can be based only on unproved allegations and that the Court ought not to declare as fact that which might not have proved to be such had facts been investigated. Millett J, however, went on to point out that the rule referred to in Wallersteiner v. Moir, supra, is only a rule of practice. Although it should normally be followed, it should only be followed when the plaintiff can obtain the fullest justice to which he is entitled without the declaration he seeks.

14. It is with these principles in mind that I turn to deal with the application for judgment in default.

Declarations concerning the 1st and 2nd Successions

15. In the Statement of Claim filed subsequent to the Writ, the plaintiff seeks the following declarations with respect to the 1st and 2nd Successions :

(a) A declaration that 1st Succession was obtained by fraud of Lam Shui Yan by reason of the fact that the Deceased only died in about 1952 and Lam Shui Yan was not the nephew of the Deceased and thereby the 1st Succession was null and void and of no legal effect.

(b) A declaration that the 2nd Succession originated from the 1st Succession was thereby tainted by the aforesaid fraud and the 2nd Succession was null and void and of no legal effect.

16. With the abandonment of the claim for damages, the declaratory relief becomes the only and substantial relief sought by the plaintiff. The course suggested by Buckley LJ in Wallersteiner v. Moir, namely, to state the footing on which the relief is granted but not to give a declaration to the effect that that footing reflects the legal position, has no application. While recognising that the normal rule is against the making of a declaration without a trial of the evidence, I am of the view justice will not be done in this case if the plaintiff is to be denied the declaratory relief with respect to the 1st and 2nd Successions. I am, however, not prepared to declare that Lam Shui Yan had acted fraudulently in obtaining the 1st Succession. This is not something that the Court should declare as fact without hearing evidence. It is also not necessary to do justice to the plaintiff to make such a declaration. It is sufficient that the Court declares that the 1st Succession should not have been approved by the District Officer and that Lam Shui Yan should not have been registered as successor to the Properties. And I so order.

17. For the same reason, I am only prepared to declare that the 2nd Succession should not have been approved by the District Office and that the 1st to 3rd defendants should not have been registered as successors. And I order accordingly.

Declarations concerning the plaintiff's entitlement as successor

18. In the Statement of Claim, the plaintiff also seeks the following declarations :

(a) A declaration that the plaintiff as the lawful adopted son of the Deceased was and is the only successor of the estate of the Deceased according to the Chinese custom or customary rights affecting land and was and is therefore entitled to succession of the said Property.

(b) Further or alternatively, a declaration that the plaintiff was and is entitled to the said Property in succession and be registered as such by the Secretary for Home Affairs pursuant to Section 17 of the New Territories Ordinance, Chapter 97 and Section 12 of the New Territories Land (Exemption) Ordinance, Chapter 452.

19. In support of this part of his claim, the plaintiff has adduced expert evidence on whether the plaintiff can be regarded as the adopted son of the Deceased under Chinese customary law, and whether the plaintiff is entitled to succeed to the estate of the Deceased. The expert approaches the question of the plaintiff's status by looking at firstly the position under Chinese customary law and secondly at the Civil Code of the Republic of China.

20. I am quite unable to agree with this approach of the expert. It is the plaintiff's own case that the adoption took place in Guangdong in 1948, at a time when the Mainland was under the regime of the Republic of China. The validity of the adoption should therefore be determined by reference to the Civil Code of the Republic of China, but not by reference to the customary law and practice under "Tai Tsing Lut Lai" (大清律例).

21. In the discussion of the validity of the plaintiff's adoption under the Civil Code, the expert comments that the adoption will be recognized by the Civil Code if the Deceased and the plaintiff had come from the same family. Such a fact is neither pleaded in the Statement of Claim nor reflected in the material filed in support of the application for judgment. The position is that the Court is not in a position to conclude and to declare that the plaintiff is the lawful adopted son of the Deceased and is thereby the successor to the estate of the Deceased. Neither can the Court declare that the plaintiff is entitled to be registered as the successor to the Properties. The discontinuance of this action against the 4th defendant makes it more inappropriate for declarations of the kind to be made.

Conclusion

22. For the reasons indicated above, I grant judgment in favour of the plaintiff for :

(1) A declaration that the 1st Succession to the Properties as approved by the then District Officer, New Territories should not have been approved, and that Lam Shui Yan should not have been registered as the successor to the Properties by reason of the fact that the Deceased only died in about 1952 and Lam Shui Yan was not the nephew of the Deceased.

(2) A declaration that the 2nd Succession to the Properties as approved by the District Officer, Yuen Long on 19 April 1997 and by the District Officer, North District on 23 July 1998 should not have been approved, and that the 1st , 2nd and 3rd defendants should not have been registered as the successors to the Properties by reason of the fact that Lam Shui Yan had no right to the Properties and that the 2nd Succession originated from the 1st Succession.

Costs

23. I also award to the plaintiff the costs of this action, including this application. At my request, the plaintiff's solicitors had prepared a skeleton bill claiming $87,208 as profit costs and $60,721 as disbursement. The total costs claimed is $147,929. The disbursement claimed is inclusive of counsel fee but has rightly not included any expert fee. I allow the disbursement in full. As to the profit costs, I consider that the time spent on attendances on client and on preparation of documents is too long. The time to be allowed for PLY and CWL should be reduced by two and a half hours and five hours respectively. Accordingly, I make a gross sum costs order under Order 62, rule 9(4) of Rules of High Court and fix the plaintiff's costs at $125,000.