FULL GOLD DEVELOPMENT LTD v. WONG TSING

DCMP 3389/2022, DCMP 3390/2022, DCMP 3391/2022
& DCMP 3392/2022
(Heard together)

[2023] HKDC 423

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3389 OF 2022

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3390 OF 2022

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3391 OF 2022

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3392 OF 2022

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BETWEEN

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DECISION

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Introduction

1.  There are four applications scheduled to be heard together before this court. By Originating Summonses all dated 6 September 2022, the plaintiff(s) in each application seeks an order for sale of the respective land lots pursuant to s 6 of the Partition Ordinance (Cap 352).

2.  The applications concern four different land lots situated in Peng Chau, a rural island accessible only by ferry in Hong Kong. The land lots concerned are Section B (consists of two separate portions) of Peng Chau Lot No. 184 (DCMP 3389/2022), Section A of Peng Chau Lot No. 339 (DCMP 3390/2022), Peng Chau Lot No. 183 (DCMP 3391/2022), and Section B of Peng Chau Lot No. 182 (DCMP 3392/2022), respectively (collectively referred to as “the land lots”).

3.  The land lots are private land situated adjacent to one another and more particularly described in the Lot Index Plan. They are located in the middle of the Peng Chau town center and surrounded by clusters of typical one to three storey village houses in the vicinity. Coupled with other Government lands in the immediate surrounding, they were used as forming parts of the school premises of a public school (Peng Chau Chi Yan Public School), which has ceased operation and been abandoned since 2005. Whilst there remains an abandoned one-storey school building being erected on Lot 182 SB, the other lots are much smaller in size and have basically become vacant lands.

4.  The plaintiff(s) in the respective actions (collectively referred to as “the plaintiffs”) are 2/3 registered owner (as a tenant in common) of each of the respective land lots. The defendant is the co-owner (holding 1/3 interest as a tenant in common) of all of the land lots concerned.

History of the land lots

5.  By a Conveyance of Sale dated 3 September 1953, the defendant Wong Tsing, together with Lam Shu Chun and Yu Yuet Hing, purchased the said land lots from one Cheng Luen Chau, who inherited the land from his father Cheng Sui Cheung. Each of the purchasers became 1/3 registered owners of the land lots since then.

1/3 interest of Lam Shu Chun

6.  Lam Shu Chun, being the 1/3 registered owner of the said land lots and having made his Will on 19 June 1977, died on 1 August 1977 due to serious illness. Probate (Letters of Administration with the Will annexed) was granted to his wife Cheung So Lan as executor by Probate Jurisdiction of the High Court (the then Supreme Court) on 10 October 1979.

7.  The said Cheung So Lan died intestate on 9 May 2013, leaving part of the estate of Lam Shu Chun unadministered.

8.  On 14 December 2016, Letters of Administration with Will annexed de bonis non of the estate of Lam Shu Chun so left unadministered were granted by the High Court to the Administrator Lam Wai Keung.

9.  By a Deed of Family Arrangement dated 5 June 2018, all the persons beneficially entitled to the distribution of the estate of Lam Shu Chun have agreed that Lam Wai Keung should be absolutely entitled to the properties of the estate as sole owner.

10.  By an Assent dated the same date, the unadministered estate of Lam Shu Chun was vested in Lam Wai Keung as beneficiary.

11.  By an Assignment dated 21 December 2018, the plaintiff Full Gold Development Limited (“Full Gold”) purchased the 1/3 interest of Lot 184 SB (DCMP 3389/2022) and Lot 182 SB (DCMP 3392/2022) from the said Lam Wai Keung.

12.  By an Assignment dated 28 June 2019, the plaintiff (in DCMP 3390/2022) and 1^st plaintiff (in DCMP 3391/2022) Wong Hon Kuen Ken purchased the 1/3 interest of Lot 339 SA (DCMP 3390/2022) and Lot No. 183 (DCMP 3391/2022) from the said Lam Wai Keung.

13.  Through purchasing from the said Lam Wai Keung, the plaintiffs have become the 1/3 registered owner of each of the respective land lots since December 2018 and June 2019.

1/3 interest of Yu Yuet Hing

14.  Yu Yuet Hing, being another 1/3 registered owners of the said land lots, died intestate on 18 April 1988.

15.  On 11 October 1988, Letters of Administration of the estate of Yu Yuet Hing were granted to Yan Ngar Ching, who died on 8 August 2000, leaving part of the estate of Yu Yuet Hing unadministered.

16.  On 26 February 2021, Letters of Administration de bonis non of the estate of Yu Yuet Hing deceased so left unadministered were granted by the High Court to Yu Mee Lan being the Administratrix.

17.  By an Assignment dated 31 May 2021, the plaintiff Full Gold purchased the said properties from the said Administratrix and has become 1/3 registered owner of Lot No. 184 SB (DCMP 3389/2022) and Lot No. 182 SB (DCMP 3392/2022).

18.  By an Assignment dated the same date, the plaintiff Wong Hon Kuen Ken purchased the said properties from the said Administratrix and has become 1/3 registered owner of Lot No. 339 SA (DCMP 3390/2022).

19.  By an Assignment dated the same date, the 2^nd plaintiff Wong Kai Ho Justin purchased the said properties from the said Administratrix and has become 1/3 registered owner of Lot No. 183 (DCMP 3391/2022).

20.  Through purchasing from the said Administratrix, the plaintiffs have acquired additional 1/3 interest and become the 2/3 registered owner of each of the respective land lots since May 2021.

1/3 interest of Wong Tsing

21.  The defendant Wong Tsing has remained as the 1/3 registered owner of all of the land lots ever since 1953.

The Plaintiffs’ case

22.  According to the plaintiffs’ affirmation filed in the respective actions, the plaintiffs say that the land lots are third class agricultural land (Lot 184 SB and Lot 182 SB) and house land (Lot 339 SA and Lot 183) and they all fall within a zone designated for Government, Institution or Community use (G/IC) as per the approved Peng Chau Outline Zoning Plan in December 2013.

23.  The Plaintiffs say that they have a plan to apply for permission from the Lands and/or the Planning Department for a change of use and further development with other lands nearby.

24.  The plaintiffs say that they, however, do not have 100% of the ownership of the land lots and, without the consent of the defendant for development or change of use, their application will not be considered by the Government.

25.  It is also the plaintiffs’ opinion that an order for partition of the land lots is impractical and would not be beneficial to all the registered owners. They say partitioning 1/3 equal shares from each of the land lots would hinder their development plan and would potentially and unnecessarily reduce the value of the development.

26.  On 12 April 2022, the plaintiff had informed the defendant by way of a solicitors’ letter that the plaintiffs proposed to purchase the defendant’s 1/3 share of each of the land lots. But there was no reply from the defendant.

27.  Shortly afterwards, the plaintiffs engaged a Chartered Surveyor (Merryshine Surveyors Limited) in May 2022 to prepare a valuation report for the current open market value of the land lots. The values of the land lots, based on the current approved use and nature of the land, were ascertained as follows:

Lots	Site Area	Value
Lot 184 SB	376 sq ft	HK$207,000
Lot 339 SA	92 sq ft	HK$186,00
Lot 183	215 sq ft	HK$436,000
Lot 182 SB	2,442 sq ft	HK$1,343,000

28.  In view of the valuation report, the plaintiffs had made another offer of 1/3 of the current market values by way of a solicitors’ letter to the defendant on 2 August 2022. Again, there was no reply.

29.  The plaintiffs, in such circumstances, decided to take out the Originating Summonses to seek an order for sale against the defendant. They are, say the plaintiffs, prepared to offer to purchase in a private sale or to bid at an auction for the purchase of the land lots.

30.  According to the Notices of Appointment to Hear Originating Summons, the plaintiffs ask for the following orders and directions:

(1) An Order for sale of the land lots;

(2) An Order that the parties shall be at liberty to offer to purchase in a private sale or to bid at an auction for the purchase of the land lots in the open market at a reserved price to be determined by the court;

(3) The conduct of the sale be committed to the plaintiffs’ solicitors;

(4) The proceeds of sale, after in discharge of all government taxes and the necessary costs and expenses, be paid 2/3 of the remaining proceeds to the plaintiffs;

(5) 1/3 of the remaining proceeds be paid to the defendant; if the defendant cannot be located, be lodged into court to stand credit of the actions; and

(6) The defendant do execute the necessary conveyance for the transfer of his legal title and beneficial interest in the land lots to the purchaser and in default of his so doing, the court shall, pursuant to s25A of the High Court Ordinance (sic) [s38A of the District Court Ordinance], appoint the plaintiffs’ solicitors to convey the land lots to the purchaser.

31.  The plaintiffs say that they have to seek an order for sale from the court so that the defendant’s interest is preserved while the plaintiffs’ plan for development will not be delayed.

32.  At this juncture, I think that it seems there is some fundamental dissonance of the application itself as the reasons provided by the plaintiffs do not sound legitimate to me. I shall explain in the section of Order for sale below.

Issues

33.  Counsel for the plaintiffs, Ms Cheng, submits that there are two issues for the court to determine, namely:

(1) Whether the service to the defendant is valid; and

(2) The merits on granting an order for sale.

Service

34.  Ms Cheng submits that according to the various Affirmations of Service, the Originating Summonses and the supporting affirmations were served on the defendant on 13 September 2022 by way of posting up (though not required) and by inserting the same through the respective letter boxes situated at each of the land lots. It is submitted that the defendant was duly served under O 10 r 1(2) of the RDC.

35.  O 10 r 1(2) & (3) provide as follows:

“(2) A writ for service on a defendant within the jurisdiction may, instead of being served personally on him, be served –

(a) by sending a copy of the writ by registered post to the defendant at his usual or last known address, or

(b) if there is a letter box for that address, by inserting through the letter box a copy of the writ enclosed in a sealed envelope addressed to the defendant.

(3) Where a writ is served in accordance with paragraph (2) –

(a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to, or as the case may be, inserted through the letter box for, the address in question.”

36.  The plaintiffs rely on the fact that as revealed from the land search record, the defendant remains as 1/3 registered owner of the land lots throughout the years. It was said that the plaintiffs had made some enquiries in the local area but still could not locate the defendant. They said the address of the land lots is the only address of the defendant known to the plaintiffs and thus that was the last known address of the defendant.

37.  Through counsel submission, the plaintiffs confirmed to the court that, as shown in the photos produced in the hearing bundles, there are indeed 4 letter boxes at the school gate, each being marked the lot number of the land lots concerned, and that the land lots were enclosed by the boundary wall of the school. It is submitted that the service was effected by inserting through those letter boxes.

38.  Initially, the court has some concerns about whether the plaintiffs’ service could bring to the notice of the defendant. The confusion stems from the plaintiffs’ counsel submission that on the one hand the defendant could not be located and on the other hand it was in the opinion of the plaintiffs’ solicitors that the service would come to the knowledge of the defendant within 7 days (r 1(3)). It is well established that opinion held by the plaintiffs must be a reasonably held one (Law Kwok Hung v Tse Ping Man [1994] 4 HKC 397 per Yuen J (as she then was).

39.  I think I shall be grateful if I may borrow three case authorities here.

40.  In Hung Lai Wan v Ngo Sam (unreported, HCA 3189/2016, 2 February 2017), the plaintiff applied for default judgment for a declaration of possessory title over the property. The plaintiff pleaded that she had exclusive possession of the property for many years, but she served the writ on the defendant by inserting it through the letter box of the property and claimed that the writ would come to the defendant’s knowledge within 7 days. The court (Deputy High Court Judge Anson Wong SC) rejected the argument and held that the presumption that the writ would come to the knowledge of the defendant was rebuttable and there were no reasonable grounds for the opinion that the writ would come to the defendant’s knowledge when the plaintiff was in exclusive possession of the property. It was held that the service was irregular.

41.  However, our present case is not like Hung Lai Wan. In our case, the plaintiffs are not claiming exclusive possession of the land lots. The plaintiffs are co-owners with the defendant. There is no evidence to indicate that the defendant would have no access to the letter boxes there. In the absence of any evidence to the contrary, the plaintiffs here can reasonably rely on the presumption for deemed good service under Order 10 rule 1(2).

42.  In Lau Ying Sau Sailing and Tang Suet Fan Sinly v Wan Kwan Cheung (unreported, DCCJ 1405/2010, 7 March 2012), Deputy District Judge Grace Chan (as she then was) summarized the current position of law in relation to “usual or last known address” under O 10 r 1(2) as follows:-

“15. It is established law that “usual or last known address” in Order 10 rule 1(2) should be read disjunctively, which means that a defendant may be served at either his “usual” or his “last known” address. The word “address” does not confine to a person’s residence, but essentially means a location where a person may be reached or where contact or communication in written form, such as letter, could be established. A defendant may have a number of last known addresses as well as a number of usual addresses, but there is no need for the plaintiff to effect service of the originating process on all of such addresses. Proper service of the originating process on any one of the defendant’s last known addresses or any one of his usual addresses will suffice: The Hong Kong Mortgage Corporation Limited v Ching Kit Yu & anor HCMP 2226/2002, per Deputy High Court Judge To (as he then was).”

(See also AIA International Ltd v Cheng Chung Sing (unreported, DCCJ 804/2016, 18 May 2017) and Hou Tsun Tat v Wong Wai Chung (unreported, DCPI 96, 439 and 476/2015, 31 October 2017), in which HH Judge MK Liu both adopted the above summary of law).

43.  Further, in Hou Tsun Tat v Wong Wai Chung (supra), the court held that as revealed from the land search that the defendant was the owner of the property, it followed naturally that the address of that property could be regarded as a usual or last known address of the defendant. At para 19, HH Judge MK Liu said:

“19. … However, one question remains unanswered, ie why Address 3 cannot be regarded as Wong’s usual or last known Address. Hou, Cheng and Kwok came to know Address 3 by reading the assistant secretary’s affirmation. As set out in the affirmation of service, the land search done on 18 December 2015 shows that Wong remains as the owner of the property at Address 3. Bearing in mind that a usual or last known address merely means a location where a person may be reached or where contact or communication in written form could be established, while Wong is the owner of the property at Address 3, naturally Address 3 can be regarded as a usual or last known address of Wong.”

44.  Having considered the above authorities, I believe the answer to my question earlier is that the service can be deemed effective under Order 10 rule 1(2) while the defendant cannot be located. Other than the deemed service by sending by registered post and by inserting through the letter box, another example of good service can be the service by way of substituted service ordered by the court. There is no inconsistency with the fact that the whereabouts of the defendant remained unknown.

45.  The essence is a location where the person may be reached or where contact or communication in written form, such as by letter, could be established (Lau Ying Sau Sailing (supra)). In this case, it is the address of the land lots and there were the letter boxes.

46.  Where service has been properly effected under Order 10 rule 1(2), the burden is on the defendant to show that the proceedings were not brought to his notice (New York Life Insurance Worldwide Ltd v Chan Wai Man Anthony (unreported, DCCJ 3843/2008, 29 March 2011), per HH Judge Wilson Chan (as he then was)).

47.  I am satisfied that the services were effective.

Order for sale

48.  The legal principles applicable to proceedings under the Partition Ordinance were succinctly summarised in Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD 825 by Recorder Fok SC (as he then was), at paras 18-19:

(1) A co-owner has a basic right to rid himself of the shackles of co-ownership and, if he has no other remedy, ask for an order for partition or sale;

(2) When it is impracticable to make an order for partition, the court should make an order for sale unless it is persuaded (the burden being on the opposing co-owner(s)) that such an order will not be beneficial to all the co-owners or that it will result in very great hardship to one co-owner; and

(3) Whether an order for sale is beneficial to all the co-owners is not determined by the dissent of the opposing co-owners or the assertion by them that it is not beneficial. It has to be determined by the court objectively.

49.  It is also pertinent to note that under s.2 of the Partition Ordinance, the court retains the discretion to make an order for partition, make an order for sale, or refuse to make any order:

“2. Power to order partition or sale of property in land

Subject to this Ordinance, where any property in land is held by 2 or more persons, whether as joint tenants or as tenants in common, the Court may:

(a) make an order under s.4 for a partition of the property;

(b) make an order under s.6 for a sale of a property; or

(c) refuse to make any order.”

50.  Further, the plaintiffs, being a tenant in common of the respective land lots, may institute proceedings by way of an action for sale under s.3 of the Ordinance.

51.  The plaintiffs have filed certificates confirming that no acknowledgment of service has been received from the defendant. The defendant did not appear in the hearing. The plaintiffs invite the court to proceed to hear and determine the matters in the defendant’s absence.

52.  I am satisfied that the defendant has failed to acknowledge service of the Originating Summonses (RDC O 28 r 6).

53.  It is clear that the court has power at the hearing of an originating summons under RDC O 28 r 4 to dispose of the action summarily where there are no triable issues, and that such application can be heard in chambers. It is also clear that although the matter is uncontested due to the defendant’s absence, the burden remains on the plaintiffs to satisfy the court that they are entitled to a summary judgment on the relief sought in the Originating Summonses (Choy Pui Lam v Estate of Chan Yim Mei (unreported, HCMP 313/2015, 30 March 2017)).

54.  Under the Rules of the Partition Ordinance (s.3(2)), the documents relating to the current proceedings have been served on the Director of Lands, who expressed no particular comments on the applications.

55.  Jurisdiction of the District Court to hear the matters under the Partition Ordinance is conferred by s.9 of the said Ordinance.

56.  I am satisfied that all the procedures have been complied with, and I allow the hearing to proceed in the defendant’s absence.

The plaintiffs’ submissions

57.  Counsel for the plaintiffs submits that partition is not an option for the plaintiffs for the reasons that the land lots are too small and it would be impractical to partition 1/3 shares from each of the land lots. It would hinder their development plan and reduce the redevelopment value.

58.  It is submitted that an order for sale is justified for the following reasons:

(1) The school has ceased its operation for years so the land lots are left vacant and wasted. It is the plaintiffs’ intention to make an application to the Lands Department to redevelop the land lots. However, it would not be possible to do so without obtaining the defendant’s consent. The plaintiffs have no alternative but to seek an order for sale to ensure the land lots are better utilised.

(2) The land lots can be regarded as “landlocked” as described in Faith Luck Corporation Ltd and Another v Tin Yau Nung [2020] HKCFI 314. Further, different parts of the land may have different values, and they cannot be fairly distributed. Also, there will be issues of access if the land is further divided. Since the partition is impracticable, this court should make an order for sale.

(Note by this court: the land in Faith Luck was surrounded by other lots of private land which were being used as part of a fee-paying parking area. Access to that land had already involved many right of way problems. In our case, however, the land lots are surrounded by Government land, not private land. The access through the Government land would remain the same whether before or after a partition. In my view, there is no “landlocked” in our present case, a fortiori, the land lots were used for the G/IC purposes together with the Government land).

(3) In Fan Kiu v Li Kwai Wan [2020] 1 HKLRD 659, Deputy High Court Judge William Wong SC opined that as a matter of public interest, an order for partition would be beneficial to the development of the land. It would be highly undesirable and prejudicial to the plaintiff for the land to remain undeveloped to the benefit of nobody. Also, in Chung Chi Cheung v Chung Kwan Wa [2013] 1 HKLRD 57, the court held that leaving the land vacant would not be in anyone’s interest. Owing to the facts unique to that case, the court granted a partition order instead of an order for sale.

(4) An order for sale would not cause very great hardship to the defendant and would be indeed beneficial to all co-owners. The defendant has not been occupying the land lots or using the land lots throughout the years. He will not be forced out of his home. The sale proceeds will still be held on trust for the defendant even though he has not actively taken part in the applications.

Analysis

59.  I think it might be convenient first to point out here that, in general, parties entered into the co-ownership either due to succession or inheritance from a family member (as in the case Chung Chi Cheung cited by the plaintiffs), or some other relationship such as joint investment or cohabitation. A more unusual situation would be like Fan Kiu, who acquired her portion of land by adverse possession and became a co-owner with the defendants. In any given situation, they seldom anticipated that the co-ownership could be a shackle at the time when they became co-owners.

60.  However, successors may have different plans and joint partners will have a change of heart.

61.  Then it comes to the assistance of the Partition Ordinance if there is a genuine need.

62.  In Fan Kiu, it was perfectly legitimate for the plaintiff to plan to demolish the house in which the plaintiff and her family were residing and construct a New Territories Exempted House. No hardship would be suffered by the defendants under such order for partition. As to “the public interest that to encourage the proper maintenance, improvement and development of land which might otherwise be left under-utilised for a long time,” I respectfully agree with the learned deputy judge that it is the rationale behind the doctrine of adverse possession, and if necessary, such public interest consideration can be extended, as suggested, to an application for an order for partition.

63.  However, both Fan Kiu and Chung Chi Cheung cited by the plaintiffs’ counsel would not advance her arguments any further, for the simple reason that those cases were found on the basis that there was no other recourse and there was a genuine need for the order for partition. Suffice it to say that those cases are distinguishable on facts from our present case. Here, the plaintiffs only seek an order for sale. And the plaintiffs must persuade the court that the conditions set out in Wong Chun Kei have been satisfied.

64.  In Hong Kong, the ownership of private land is protected by the Basic Law (Article 6):

“6. The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.”

65.  There is no forced sale of land in Hong Kong due to a lack of utilisation. At most, the Government will only try to offer an incentive for exchange or by way of resumption of land.

66.  Therefore, there is no mandatory development of land (other than the Government’s resumption) or anything like a penalty being imposed on the owner of any unutilised land or absentee owner (subject to any claim for adverse possession by others if the paper owner was being dispossessed).

67.  It is true that there is the Land (Compulsory Sale for Redevelopment Ordinance) (Cap 545) for compulsory sale. However, it is a different legislative scheme as it takes into account not only the minimum threshold of shares of ownership but also the public safety concern due to the age and the state of repair of the existing development. It is not applicable to the plaintiffs’ case.

68.  Accordingly, I find there is nothing to compel the defendant to apply for a change of use (from G/IC to Residential) for the land lots as the plaintiffs complained.

69.  For the same reason, I do not find any legal basis for the plaintiffs to ask for a forced sale against the defendant’s co-owner interest if the defendant simply did not give his consent for the change of use or development.

70.  Having considered the plaintiffs’ case as a whole, what I see from the plaintiffs’ proposal is nothing more than: (1) to discard the value of the existing school building on the land though it was abandoned by the school; (2) to turn the defendant’s 1/3 interest in the land into a sum of money (a liquidated sum) for the defendant without his consent; (3) the money to be collected by the defendant would be equivalent to the open market value based on the current G/IC use of the land; and (4) after all, there is no guarantee (as acknowledged by the plaintiffs) that the Government would approve the plaintiffs’ application for the change of use.

71.  In my view, the plaintiffs’ plan is so conceited without paying any regard to the will or interest of the defendant. The plaintiffs probably strategically acquired a portion of the interest in the land. They probably think that the court would lend a hand in helping them to obtain the remaining portion. But the hard fact is not. Obtaining the defendant’s consent is vital. In any event, the Partition Ordinance should never be used as a stairway to complete an acquisition of ownership.

72.  In Wong Chun Kei, Recorder Fok SC expressly stated that a co-owner has a basic right to rid himself of the shackles of co-ownership and, if he has no other remedy, ask for an order for partition or sale. I would like to emphasize the qualifying phase “if he has no other remedy,” which was specifically added by the learned Recorder in approving the legal principles.

73.  That is, the court would consider whether the co-owners have any other remedy before granting an order for partition or sale. In fact, it runs naturally that the court would first examine whether it is legitimate in the circumstance for one or some of the co-owners in seeking remedy, ie whether there is any genuine need for remedy between the co-owners. Under the Partition Ordinance (as opposed to the counterpart in the UK), the court retains the discretion not to grant any order for sale if it does not see fit (s.6(3)(a)) and has jurisdiction to refuse to make any order (s.2).

74.  Indeed, having a “basic right” does not mean it is “as of right.” The co-owners can have the basic right to free themselves from co-ownership and they can resolve to a partition or a sale by consent or by any other arrangements. But if they need to come to the court to invoke the Partition Ordinance, they have to satisfy the court that “there is no other remedy.” They cannot expect to have an order for partition or sale “as of right” since the court is given the power to refuse to make an order (Wong Chun Kei, at paras 15-16).

75.  In the case authorities cited by the plaintiffs, there were situations where it would be impracticable to ask the plaintiff to sell his portion of interest at a discount to a third party. Unless there is an order for partition, the plaintiff will not be able to exercise his basic right to free himself from the shackles of co-ownership. They had no other recourse. However, it is of note that the requirement for an order for sale is different. Only if there is no other remedy, coupled with the fact that the order for partition is impracticable and the order for sale would be beneficial to all the co-owners, and will not result in very great hardship to one co-owner, then the court would make an order for sale.

76.  In our present case, that route (the selling of their interest in the open market) had been shown possible when the plaintiffs purchased their shares not long ago. If the plaintiffs were able to enter into the transactions with a discount two or three years ago, they would be able to sell them at a discount in turn. If they had entered into the transactions at a premium, then that was a commercial decision and the risk that they were willing to take at the time. They cannot complain that there is no other remedy but ask for an order for sale from the court. The plaintiffs can reverse (or more exactly, rectify) their investment decision by liquidating their positions in the open market. They are not in a situation in which they are forced to remain unwilling co-owners of the land lots. They are not locked into the co-ownership.

77.  Further, it is the fact that the plaintiffs’ entering into the co-ownership was self-induced. They knew the land lots were in a G/IC zone. They knew the defendant was 1/3 owner enjoying the land for community use (previously used for serving as a public school). The defendant has not caused any harm or disturbance, and he is but an innocent party. On the other hand, the plaintiffs have shown no suffering or any prejudice, other than their outright development plan.

78.  I am unable to accept the plaintiffs’ submission that the land lots had been left vacant and wasted for years before the plaintiffs became the co-owners. In my judgment, the brief co-owner status of the plaintiffs is a significant factor to take into account. I do not think that the plaintiffs should be in a position to comment on the uses of the land lots prior becoming co-owners in December 2018. Although there is information that the school has ceased operation since 2005, there is no evidence before the court that the plaintiffs have any knowledge of the uses of the land lots for the period between 2005 and 2018. There are several photos provided to the court, which apparently showed that the school is, at least, still maintained in good condition. The school might have been or could be used for other community activities. I find that there was no legitimate ground for any remedy. Certainly, this court would not allow the plaintiffs to turn the defendant’s interest in land unjustifiably into a sum of money by way of sale in the defendant’s absence.

79.  In summary, this court does not find that there is no other remedy available to the plaintiffs to free themselves from the co-ownership.

80.  Secondly, I do not find that an order for sale would be beneficial to all co-owner parties. There are two reasons:

(1) The current G/IC use and the future use for real estate development are two distinct matters which cannot be quantified for comparison. As stated in the valuation report provided by the plaintiffs, the planning intention of the G/IC zone is primarily for the provision of facilities serving the needs of the local residents as well as visitors (ie the local community). The use of G/IC in providing facilities to the community, such as using as school premises in the past years, is more on the charitable side of work which simply cannot be quantified into money worth. Therefore, one cannot say for sure that whether the development value or the usage of the land lots for the purpose of serving the community under the existing G/IC use would be more beneficial to all the owners. Hence, I reject the plaintiffs’ assertion that the land lots would be better utilised for development; and

(2) The public auction, as suggested by the plaintiffs, is for realizing the land lots into money worth at the open market value as G/IC zoned lands. There will be no increase in value or any benefit to the parties qua existing owners. That will be a mere conversion at par. More importantly, I see no benefit to the defendant other than detriment. The increase in value, if any, would only belong to the new purchaser, who would be most likely the plaintiffs themselves.

81.  Balancing the interest of the defendant against the plaintiffs, I decline to order a sale of the land lots and refuse to make any order under the Partition Ordinance.

Disposition

82.  For the above reasons, the Originating Summonses must be dismissed. I dismiss the plaintiffs’ applications, in all actions with no order as to costs.

DCMP 3389/2022, DCMP 3390/2022, DCMP 3391/2022 & DCMP 3392/2022

DCMP 3389/2022, DCMP 3390/2022, DCMP 3391/2022 & DCMP 3392/2022