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

----------------

----------------

-------------------------

R U L I N G

-------------------------

1. 21 lots of land in the Northwest New Territories in Yuen Long were registered in the name of Lam Kam Tak, deceased. They were held under Block Crown Leases. I do not know how substantial these lots are. But judging by the Government rent payable in respect of them, they seem to be of reasonably substantial size.

2. The plaintiff claims to be the adopted son of the deceased. By a succession to property dated 19 August 1947, one Lam Shui Yan was registered as a successor to the deceased in respect of the properties under the New Territories Ordinance by Memorial No.117603. According to the information entered on the memorial, Lam Shui Yan was a nephew of the deceased.

3. According to the record of the North District Office, Lam Shui Yan reported that the deceased died in 1939. Notice of the intended succession was posted and it expired with no objection received, and approval was given by the District Officer, New Territories for Lam Shui Yan to succeed to the properties of the deceased. Lam Shui Yan passed away in 1963. On 23 July 1998, the 1st to the 3rd defendants became registered as successors to Lam Shui Yan by Memorial No.425703. The defendants are the grandsons of Lam Shui Yan.

4. According to the available evidence, the 1st to the 3rd defendants are all holders of Dutch Passports. It is therefore probable that they reside out of Hong Kong. The defendants have been served by prepaid post at their last known address. They have not appeared to contest the present proceedings.

5. According to the plaintiff, the deceased died in Mainland China in or about 1952. That is supported by a Notarial Certificate issued by the Notary Office of Shenzhen City, Guangdong Province dated 23 November 2000. According to the Certificate, the deceased was born in 1879 and died in 1952 in Shenzhen (formerly the Bao An County). This is also supported by a Statutory Declaration by one Madam Cheng Yung Ho, who claims to be the deceased's widow.

6. This is an application for judgment in default under Order 13, rule 6 and Order 19, rule 7. Mr Vaughan, who appears for the plaintiff, has supplied me with two helpful skeleton submissions. He has rightly reminded me that it is not the general practice for the court to make a declaration of right in default of defence, or on admissions or by consent.

7. I told Mr Vaughan, however, that at the moment, I feel that I am unable to make the declarations sought. Some of the declarations I do not think I could make in the absence of the Secretary for Justice. The Secretary for Justice was originally made a party, but I am told by Mr Vaughan that the proceedings was discontinued against her when the plaintiff was told that she would act according to the outcome of the proceedings against the 1st to the 3rd defendants. I note that the succession impugned by the defendants took place in 1947 during the alleged lifetime of the deceased. That was at a time when travel between Hong Kong and Boi On County was relatively easy. Notice of the intended succession was given and no objection was received.

8. There is no evidence at the moment as to whether any of the properties were occupied by tenants in 1940s or indeed up to recent years. The evidence which is available before me now from Madam Cheng is to the effect that after the founding of the People's Republic of China and when time was hard, she was sent to Hong Kong to work as a peasant in order to support the deceased and presumably the plaintiff, but there was no mention made of the properties in Hong Kong or whether the widow collected any rent in relation to them at that time.

9. On the other hand, according to the plaintiff that it was only in 1984 that he had time to look after the properties and it seems to be his evidence from that time onwards he had been collecting rent in relation to some of the properties. But at the moment, the evidence is unclear as to the occupation of the properties since the late 1940s. I do not know, for example, whether the properties have been occupied and, if so, whether adverse possession might have extinguished the deceased's title.

10. Having regard to my views, Mr Vaughan has asked the hearing of this summons be adjourned sine die. He prefers that to the matter being disposed of today. I am happy to adjourn the matter sine die as requested by Mr Vaughan and I do so. So I make an order that the summons be adjourned sine die with costs reserved.