WONG YUEN CHUN PHOEBE (formerly known as CHUNG LAN CHI NANCY) v. THE PERSONAL REPRESENTATIVES OF YIM HANG WOON, DECEASED

DCCJ 1948/2023

[2025] HKDC 421

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1948 OF 2023

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DECISION

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Introduction

1.  This is the substantive hearing of an Order 19 summons (“the Summons”) taken out by the plaintiff Wong Yuen Chun Phoebe (“P”) on 14 January 2025 seeking to enter judgment against the defendant (“D”) on the basis that D could never be found and had never filed any Defence.

2.  According to the Summons, P sought declarations to the effect that by operation of Sections 7(2) and 17 of the Limitation Ordinance (Cap 347), P acquired a squatter’s title as D’s entitlement to recover possession of the property known as 5/F, Golden Phoenix Building, No.13A Tsui Fung Street, Kowloon, Hong Kong (“the Property”) had been extinguished by P’s adverse possession of the Property since 18 July 2002, when the paper-owner of the Property (“the Deceased”) sadly passed away.

3.  Upon my requisition, P confirmed she had never written to the Secretary for Justice (“SJ”) to ascertain his position on the potential issue of bona vacantia prior to her issuance of the Summons.  P further asserted by way of correspondence that the Deceased had “surviving issues” at the time of her death even though this had never been pleaded in the Statement of Claim (“SoC”).  The SoC did no more than to say no person had applied for letters of administration.

My View

4.  As I had mentioned in Lei Yukang v Lin Youjun [2023] HKDC 568 (§20, per DDJ Kenneth KY Lam), and in Licksun Company Ltd [2025] HKDC 372 (§5, per DDJ Kenneth KY Lam): -

“Practitioners are reminded of what was said by DHCJ Herbert Au-Yeung in JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437 [2023] HKCFI 403 (at §18). A court of law is not a rubber-stamp. All parties to all civil actions and their legal representatives should assist the court by making all necessary inquiries, and placing all relevant materials before the court, in a timely and helpful manner.”

5.  In my view, litigants and legal practitioners should pay more attention to potential issues of bona vacantia whenever a person appears to have died intestate without known surviving close relatives so that Section 4(9) of the Intestates Estates Ordinance (Cap 73) may apply.  It reads: -

“In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall, subject to the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), belong to the Government as bona vacantia…”

6.  That provision was examined by DDJ Alexander Tang in Lam May Por v The Estate of Chan Ching Woon, Deceased [2023] HKDC 1219 within a context almost identical to that of our present case.  As explained by the Learned Judge, whilst on one view the Government’s interest under the provision is “merely inchoate” (§27), that is not the only possible way of looking at the issue (§29).  In The Personal Representative of Lau Fung Chim v Lau Siu Kwong David (DCMP1767/2001, 20 July 2001) HHJ ZE Li reached a different view.  There does not seem to be any Court of Appeal or Court of Final Appeal authority interpreting the provision or confirming its effect, which is why a sensible practice had developed which required a claimant to first write to the SJ to formally inquire whether the Government would like to intervene and claim the property in question before our courts would entertain a request for final judicial relief.

7.  In the absence of special reasons, that sensible practice should be followed in each and every case where a paper-owner of landed property appears to have died intestate without known surviving close relatives (or, in the case of a corporation, been dissolved and/or deregistered).

8.  Of course, I am also aware of what was said by DDJ Kay Seto in Chan Wai Hung v Tung Lo Court (IO) [2023] 5 HKLRD 1 [2023] HKDC 983 (§§62 to 68) to the effect that since title to land is relative, granting a declaration as between two persons would not preclude entry or possession by a third person (such as the Government).  Whilst that proposition is trite and accurate, in a case such as ours where there is no urgency and the costs consequence of an adjournment is negligible, it would be better for the SJ to be notified before, instead of after, the adjudication of the matter.

9.  If a claimant in P’s position wishes to suggest the Government must have no interest, “inchoate” or otherwise, in a particular piece of land because the paper-owner had “surviving issues” (eg a living son or a living daughter) at the time of her death, that should be pleaded and explained in the statement of claim to be relied upon, in which case a court of law may well dispense with the requirement that the SJ be notified.  The SoC in our present case does not contain any such plea, and I am not prepared to accept the assertions in a mere solicitors’ letter which obviously would not contain any statement of truth signed under Order 41A of the Rules of the District Court (Cap 336H) as substitutes in my adjudication of the Summons.

Conclusion

10.  By reason of the above, my order for today is: -

(1)  The Summons be adjourned sine die;

(2)  P shall serve her Hearing Bundle for today, plus a copy of this Decision, on the SJ, within 28 days from today;

(3)  Leave be granted to P to file and serve further affidavit evidence as to her compliance with the above, and any reply from the SJ;

(4)  Liberty to restore the Summons before any Judge of the District Court with 2 hours reserved; and

(5)  Costs of today be reserved.