LIU HANG FONG v. THE ESTATE OF LIU YUNG FAT

DCMP 3636/2019

[2023] HKDC 1315

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3636 OF 2019

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(By original Originating Summons)

(By Order to carry on proceedings dated 22 October 2020)

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JUDGMENT

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Introduction and procedural history

1.  On 5 November 2019, the plaintiff filed an Originating Summons (the “OS”), seeking an order that Lot No. 273 in Demarcation District 206, Shatin, New Territories, Hong Kong (the “Suit Land”) be partitioned, in accordance with the Survey Record Plan No. SRP/ST/054/1192/D1 (the “SRP”) and Land Boundary Plan No. LBP/ST/054/1191/D1 (the “LBP”)[1] attached to the OS, into 2 parcels, namely:-

(1)  section A of Lot No. 273, to be held by the plaintiff; and

(2)  the remaining portion of Lot No. 273 to be held by the defendant.

2.  Mr Liu Yung Fat (the “Deceased”) was the uncle of the plaintiff.  They became tenants in common of the Suit Land on 9 October 1979.  As the plaintiff was underage at that time, her share of the Suit Land was once held by her father Mr Liu Tai Yau on trust, until the trusteeship was cancelled on 16 June 1980 after the plaintiff turned 21 years old[2].

3.  The Deceased passed away on 30 June 2016[3]. Although it is said that he left behind a will, no probate was applied for by his named executor(s)[4]. Hence, the plaintiff applied for an order under O.15, r.6A of the Rules of the District Court, Cap. 336H (the “RDC”).  For this purpose, the plaintiff’s solicitors, Messrs Tsang, Chan & Woo (“TCW”) had contacted the 4 children of the Deceased by way of letter dated 18 November 2019, but only his 2 sons, Mr Liu Wai Lam (“Mr W.L. Liu”) and Mr Liu Wai Chuen (“Mr W.C. Liu”) had given their replies.  Via a letter dated 25 September 2020 from his solicitors, Messrs KWC & Associates, Mr W.L. Liu expressed his unwillingness to represent the Estate of the Deceased.  By a letter dated 8 October 2020, Mr W.C. Liu had agreed to take on such a role.  This led to the order from Master B. Mak dated 22 October 2022, appointing Mr W.C. Liu to represent the Estate of the Deceasedfor the purpose of this action and that this action be carried on between the plaintiff and Mr W.C. Liu as the defendant as if Mr W.C. Liu has been substituted as the defendant for the Estate of the Deceased.

4.  After a Notice of Appointment of Hearing the OS was filed on 30 January 2023 (“NOA”), the matter went before Deputy District Judge Frances Lok (“Deputy Judge Lok”) on 9 March 2023.  At the hearing, the plaintiff was represented by her counsel Miss Wallis Chung (“Miss Chung”).  By a letter dated 16 February 2023, Mr W.C. Liu asked to be excused from the hearing, as he took a neutral stance to the plaintiff’s application.

5.  At the hearing, 2 requisitions were raised by Deputy Judge Lok, and time was given for the plaintiff to answer them.  The matter was therefore adjourned to 19 September 2023.

6.  At the adjourned hearing, the plaintiff was again represented by Miss Chung, whilst Mr W.C. Liu repeated his request to be excused from attendance in his letter dated 4 September 2023, citing the same neutral stance on the plaintiff’s application.  In light of this letter, and upon Miss Chung’s request, the adjourned hearing was proceeded with in the absence of Mr W.C. Liu.

7.  Pausing here, I note that the OS, NOA, the 3 affidavits with exhibits filed by the plaintiff, and the 3 surveyor reports prepared by Mr Leung Chi Yan, George of Gland Surveying, Planning & GIS Co. Ltd (“Mr Leung”), were served on Mr W.C. Liu and the Director of Lands[5].

The plaintiff’s case

8.  As said, the plaintiff and the Deceased are tenants in common of the Suit Land.  As one can see from the SRP and LBP, 2 houses were built on it, one adjoining with the other.  First, there is a 1-storey house known as No. 19C, 3^rd lane, Wu Kai Sha Village, Ma On Shan, which was built more than 80 years ago (“House No. 19C”).  House No. 19C belongs to the Deceased and has been rented out for some years.  The second house, known as No. 20, 3^rd lane, Wu Kai Sha Village, Ma On Shan, which is 2-storey high (“House No. 20”), was built more than 40 years ago by the plaintiff’s father.  The plaintiff used to reside at House No. 20 until 2018 when she moved to the United Kingdom. She would stay at House No. 20 whenever she returns to Hong Kong.

9.  The plaintiff proposes to partition the Suit Land in accordance with where House No. 19C and House No. 20 are located, i.e. the plaintiff to take House No. 20 (as section A of Lot No. 273), and House No. 19C (as the remaining portion of Lot No. 273) be allocated to the Estate of the Deceased.  House No. 19C and House No. 20 occupied the whole of the Suit Land.

The defendant’s case

10.  Even though he had in the Acknowledgement of Service stated his intention to contest these proceedings, Mr W.C. Liu has in his letters repeatedly clarified that he is neutral to this application.  For prudent sake, TCW had also sought the views of Mr W.L. Liu.  So far, no objection from him has been received.

Partition of the Suit Land

11.  According to sections 2 and 3 of the Partition Ordinance, Cap. 352 (“PO”), a “person interested” has the locus standi to apply for an order for partition, whether the property in question is held by 2 or more persons as joint tenants or tenants in common.  Under section 4(1) of the PO, the court can order that the property be partitioned into parcels held by single owners in severalty.

12.  As a tenant in common of the Suit Land, there is no question that the plaintiff is a “person interested”.  Her proposed manner of partitioning the Suit Land is also within what is allowed under PO.  But there remains the question of whether the court should exercise its discretion under the PO.  The principles relevant to the exercise of such discretion has been summarised by Mr Recorder Fok SC (as Fok PJ then was) in the case of Wong Chun Kei v Poon Vai Ching[6]:-

“18. These passages from the cases cited above were relied upon by Mr Fung SC to support the following propositions, namely:

(a) A co-owner has a basic right to rid himself of the shackles of co-ownership and ask for an order for partition or sale.

(b) 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.

(c) 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.

19. Subject to adding the qualifications, “if he has no other remedy,” before the words “ask for an order for partition or sale” in proposition (1), and “or that it will result in very great hardship to one co-owner” to the end of proposition (2), I am satisfied that these propositions fairly and accurately state the law as regards the court’s jurisdiction when faced with an application for partition or sale under the Ordinance and I shall proceed in this judgment to apply those propositions in resolving the plaintiffs’ application.” (emphasis added)

13.  The above principles have been applied in numerous cases since then[7].

14.  I agree with Miss Chung that the discretion should be exercised in favour of the grant of an order for partition.  The Suit Land is, in effect, already physically partitioned into 2 parcels by means of House No. 19C and House No. 20.  They are self-contained with their own electricity and water supplies.  The partition of the Suit Land would not bring about much, if any, changes to how the same is used by its occupants.

15.  Although there is a difference in areas after the partition, i.e., section A of Lot 273 would be 0.4 square metre larger than the remaining portion of Lot 273, the difference is minimal.  Moreover, divided usage of the Suit Land by way of House No. 19C and House No. 20 has remained in place for over 40 years, apparently undisturbed and uncontroversial amongst the owners.

16.  Based on the above, I find the proposed partition feasible.  In addition, there is no suggestion that the proposed partition would bring any prejudice to the financial interest of the Deceased’s Estate.  This is fortified by the lack of objection from Mr W.C. Liu and Mr W.L. Liu.

Requisitions from Deputy Judge Lok

17.  At the first hearing, Deputy Judge Lok raised 2 requisitions.  First, she inquired whether a carry on order would have the effect of binding other beneficiaries of the Deceased’s Estate.  Second, whether the proposed partition of the Suit Land would encroach on the government lands.

18.  Regarding the first requisition, the answer is in the affirmative.  O.15, r.6A(7) of the RDC provides that:-

“Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.”

19.  The effect of the order is further elaborated in §15/6A/7 of the Hong Kong Civil Procedure 2023, Vol. 1, at p. 420:-

“The effect of an order to carry on the proceedings where there is no grant of probate or administration is to constitute the person appointed to represent the estate of the deceased for the purposes of the proceedings, to make him in effect defendant ad litem.”

20.  In Capital Matrix Ltd v Khan Mohammed Sadig Khan[8], HH Judge KW Wong had these to say about a carry on order:-

“19. Order 15 Rule 6A of the RHC provides a machinery for appointing someone for the limited purpose of carrying on the litigation on behalf of a deceased’s estate when no grant of probate of or administration has been made. It appears from reading of the rules that the person so appointed should be someone having an interest in the outcome of the proceedings or the estate. However, it has to be remembered that any judgment or order given against the said estate after the O. 15 r. 6A appointment is to bind the estate of the deceased in the same way as a judgment given against the estate direct. It does not deal with how the estate is to be distributed. Neither does it confer to the person so appointed an entitlement to share in the estate of the deceased. Whether a person is entitled to share in the estate of a deceased depends on whether he is a beneficiary under the last will of the deceased, or in the event of intestacy as in the present case, the applicable law on distribution in the event intestacy. If there is dispute between the competing parties, the dispute needs be resolved by the Court of First Instance in its probate jurisdiction.” (emphasis added)

21.  Turning now to the second requisition, I understand that Deputy Judge Lok’s concern stemmed from the following remark of Mr Leung at page 3 of his first surveyor report, under the conclusion section:-

“Under the subject re-establishment, the surveyed arear of Lot No. 273 (i.e. about 45.2 sq. m.) shows an excess of about 4.7 sq. m. over its registered area of 0.01 ac. or about 40.5 sq. m.”

22.  From such remark, it seems that the Suit Land would be enlarged by the proposed partition, possibly extending into the government lands which surrounded it.

23.  In answering this question, Mr Leung has prepared his third surveyor report.  In it, he gave a brief lecture on the history of Cadastral Survey in Hong Kong, in particular the New Territories, which is most enlightening and interesting.  He explained how, in the past, Demarcation District Survey was done, and how a Demarcation District Sheet was created.  Mr Leung also took the opportunity to highlight how the inferior survey technique at the time was the cause for imprecision, scale error, poor orientation, and distortion in area and shape of the Lots, in a Demarcation District Sheet.  Insofar as the Suit Land is concerned, Mr Leung said that the registered area of the same as appeared on the Block Crown (Government) Lease[9], i.e. 0.01 acre or 40.5 square metres, were being rounded to the nearest 0.01 acre and contained a certain degree of discrepancy.  To illustrate on his point, reference was made to the Demarcation District 206 Sheet.  Although Lot Nos. 270, 271, 272, 276 and 277 were all said to have registered areas of 0.01 acre, Demarcation District 206 Sheet[10] shows that they actually came in different graphical sizes.  Hence, these registered areas did not reflect the actual areas of the Lots. Mr Leung ended the discussion with the conclusion that there is no physical structure, i.e. any part of House No. 19C and House No. 20, which encroached onto the adjoining government land.

24.  I accept that the second requisition has been sufficiently answered by Mr Leung in the above.  I should also mention that, after having sight of the SRP and the third surveyor report of Mr Leung[11], the District Lands Office of Sha Tin have expressly stated that they have no adverse comment on the re-established boundary from the land surveying point of view[12].

Conclusion

25.  For the reasons stated, I would make the following orders:-

(1)  The Suit Land be partitioned in accordance with the SRP and LBP into 2 parcels, namely:-

(a)  section A of Lot No. 273 to be held by the plaintiff; and

(b)  the remaining partition of Lot No. 273 to be held by the defendant.

(2)  There be no order as to costs of these proceedings, including all costs previously reserved.

26.  I thank Miss Chung for her assistance.

The SRP

The LBP