WONG KWAI YUNG v. WONG CHEE HOI, the representative of the estate of LEE KWAN YING, deceased

DCCJ 3548/2018

[2021] HKDC 1049

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3548 OF 2018

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DECISION

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1.  This is the Plaintiff’s (“Kwai Yung”) application by way of summons for entering default judgement against the Defendant as the representative of the estate (the “Estate Representative” or “Chee Hoi”) of Lee Kwan Ying, who passed away on 5 December 2018 (“the Mother”). Kwai Yung claims by way of a Writ of Summons (the “Writ”) against the Estate Representative for the following relief:-

(a)  a declaration that the Notice of Severance dated 12 March 2014 (“Notice of Severance”) of the property situated and known as Flat No 1 on 39^th Floor of Block B, Kam Tai Court, 33 Ning Tai Road, Shatin, the New Territories Hong Kong (the “Property”) is invalid, null and void; and

(b)  An order that the registration or pending registration of the Notice of Severance at the Land Registry against the Property by Memorial No 14031400910256 be vacated.

Background

2.  The parties are family members. Kwai Yung was the youngest daughter of the Mother. She has deformity on her right hand and right leg since her birth. The Property formed the crux of the estate of the Mother (“the Estate”).  A Grant of Letters of Administration of the Estate was granted to Chee Hoi on 29 November 2019.  

3.  The Writ with the Statement of Claim was issued on 13 August 2020 and it was personally served on Chee Hoi making the claims as set out in paragraph 2 above. On 21 July 2021, Chee Hoi filed into the court an Acknowledgement of Service of Writ indicating that he did not intend to contest the proceedings.  Not surprisingly there was no Defence filed on or before the prescribed date.  The Plaintiff then took out this Summons asking for judgment to be entered.

4.  Put in a nutshell, from the pleadings the court understands that the Mother gave birth to 10 children.  The Property was purchased with the money given by the 8^th son (“Chi Sum”) and was registered in the name of the Mother and Kwai Yung as joint tenants.  After the purchase, Chi Sum, Kwai Yung and the Mother lived there.  Chi Sum paid off the mortgage as well.  It was the intention of Chi Sum that the Property would provide accommodation to Kwai Yung and the Mother during their joint life and to Kwai Yung as a gift for her use absolutely upon the Mother’s demise.  

5.  On 8 October 2013, the Mother was admitted into the Prince of Wales Hospital (“PWH”) and was transferred to Shatin Hospital a few days later.  On or about 28 October 2013 the Mother was received by Chi Yung, the 7^th Daughter (“Chi Yung”) into her care at the latter’s residential unit in Ocean View.  Some children, 7 of them in number (“7-Men Group”), found it difficult to pay visit to the Mother since then[1].

Guardianship Application taken out by Chee Yung

6.  About a month later, on 25 November 2013, Chi Yung made an application to the Guardianship Board under section 59M of the Mental Health Ordinance, Cap 136 for a Guardianship Order in respect of the Mother.  Pursuant to section 59M (3) of the Ordinance, written reports from two registered medical practitioners in respect of the Mother were submitted to the Guardianship Board (“Guardianship Application”).  For the purpose, both Dr Kwan Ka Lik and Dr Chiu Kum Ming were directed to examine the Mother and they reported that the Mother was diagnosed to have Alzheimer’s disease and dementia with moderate to severe in severity.  There was a second report written by Mr Kwan with similar findings[2].

7.  After hearing the Guardianship Application with reference to, amongst other materials, the medical reports from Dr Kwan and Dr Chiu, and a supplementary report from the Social Welfare Department (“Supplementary Report” further details of which to be set out below), the Guardianship Board ordered the Mother be received into guardianship for a period of one year, commencing from 4 April 2014 (the “Guardianship Order”).  The Guardianship Board further ordered that the Director of Social Welfare be appointed as guardian of the Mother with prescribed powers set out[3].

Execution of Notice of Severance arranged by Chi Yung

8.  By a Notice of Severance dated 12 March 2014, 4 months after the Guardianship Application and 3 weeks prior to the Guardianship Order, the Mother gave notice to Kwai Yung and the Land Registrar of her desire to server as from 12 March 2014 the joint tenancy of and in the Property held by the Kwai Yung and the Mother and by operation of such severance, Kwai Yung and the Mother became tenants-in-common holding the Property in equal shares both at law and equity (“the Severance Process”)[4].

9.  On 3 April 2014, the Director of Social Welfare, one day before the Guardianship Board hearing, submitted the Supplementary Report to the Guardianship Board.  In the Supplementary Report, it was stated that a new dispute arose between the two groups of the 10 children over the Notice of Severance.  When questioned about the Notice of Severance by the Investigation Officer, Chee Yung said that as the Mother had requested that she checked information from various sources and with medical support from another medical doctor, the Severance Process was commenced.  Chi Yung admitted that the lawyer representing the Mother in the Severance Process was not informed of the reports complied by Dr Kwan and Dr Chiu.  Chee Yung refused to let the Investigating Officer have sight of the medical report obtained for the Severance Process[5].

Kwai Yung’s Case

10.  It is Kwai Yung’s pleaded case that according to the medical reports submitted to the Guardianship Board, the Mother has no or no sufficient mental capacity to execute the Notice of Severance.  It should therefore be set aside for it being invalid, null and void.

The Estate’s Case

11.  Chee Hoi appeared in court with 5 siblings.  They are within the 7-Men Group.  Chee Hoi confirmed to the Court that no Defence would be filed as he had clearly indicated in the Acknowledgement of Service that he would not do so.  He also informed the Court that he had given notice to all siblings, in Hong Kong and overseas, about these proceedings and his intention not to defend.  From their replies, he was given support by 5 (not counting Chi Yung and himself) and 4 of them appeared in court.  They were namely Ngau Yung (the eldest daughter), Mei Fong (the 5^th daughter), Chee Keung (the 6^th son) and Chee Sum.  The last one in the 7-Men Group is Chee Lam (the 9^th son) who did not appear as he was in Taiwan, but he had given his support to Chee Hoi’s decision not to defend in writing.

12.  The other three who did not give support to no defence, are namely Ping Man (the 2^nd son), Chee Kai (the 3^rd son) and Chi Yung.  They did not appear in court.  The court received a letter signed by a Wong Chee Kai the day before the hearing.  It was actually copy of a letter addressed to Chee Hoi with a prayer to the court. Parties were given an opportunity to read the letter. Chi Kee said in the letter that the claim should be defended. He asked that the Notice of Severance be brought to the attention of the court by Chee Hoi.  He prayed that the court would follow the last wish of the Mother for the Property be severed so it would not be solely occupied by Chee Yung who would eventually sell the same.  Chee Kai did not take out any application to intervene in these proceedings.  He said he was in Taiwan.

The Issue

13.  The issue to be determined is whether the court should enter judgment in the present proceedings when no Defence was filed pursuant to Order 19 r7 of the Rules of the District Court.  The court has to be satisfied that the pleading has shown a case for the order the plaintiff seeks to obtain.  The presence of 4 in the 7-Men Group in the court only confirmed their position that there should be no defence in these proceedings.  The court bears in mind that the position of those present in court would not make the Plaintiff’s case stronger.  The court also noted the position of the other 3 who said that the claim should be defended and tried.   

Discussion

14.  At this stage the court cannot receive any evidence but must give judgment according to the pleadings. In the present case, it has been pleaded in the Statement of Claim, which formed part of the Writ, that the Mother did not have sufficient mental capacity to execute of the Notice of Severance with particulars including:

(i)   &an application for a guardianship order was made by Chi Yung in respect of the Mother in November 2013 on basis of her mental health;

(ii)   4 months later the Notice of Severance was executed by the Mother in March 2014 on the instruction also by Chi Yung with support of a medical certificate written by another doctor certifying that the Mother had sufficient capacity;  

(iii)  3 weeks after the execution of Notice of Severance the Guardianship Order was granted on 4 April 2014 for the Mother to be received into guardianship for a period of one year therefrom; and

(iv) the Director of Social Welfare in the Supplementary Report lodged to the Guardianship Board one day before the hearing on the guardianship issue indicated that Chi Yung was aware of the Mother being certified incapacitated prior to the commencement of the Severance Process but failed to inform Ko & Wong who was acting for the Mother in the execution of the Notice of Severance and she refused to produce the medical certificate of the doctor who certified that the Mother had sound mind.[6]  .

15.  Mr Ng has reminded the court in his written submission that although paragraph (1) of the rule is expressed in mandatory terms, the rule is not mandatory but discretionary, and the court retains its discretionary power^[7]. Further it is not the normal practice to make a declaration without a trial.  The principle is a rule of practice and not the law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled to^[8].  The declarative relief granted should not be in terms wider than what the Plaintiffs are entitled and what is necessary to do justice to them^[9].

Decision

16.  Having considered all of the above, the court is satisfied that the Plaintiff appears to be entitled to judgment on the Writ.  The court has also considered the circumstances in which, as pleaded, the Notice of Severance was executed.  The court exercises it discretion in favour of the Plaintiff and her application is granted.  Judgment is entered for the Plaintiff as pleaded.

Costs

17.  The Defendant has from day one indicated that there shall be no Defence. The court therefore does not see that the Estate or Chee Hoi should personally bear the costs.  The court therefore ordered that there shall be no order as to costs in this application and the claim made under the writ.  Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations and to be paid out from the estate.  This is an order nisi to become absolute if no application to vary the same is received within 14 days from date of the Decision.

18.  Order:

(1)  Declaration that the Notice of Severance of the Property is invalid, null and void;

(2)  The registration or pending registration of the said notice of Severance dated 12 March 2014 at the Land Registry against the Property by Memorial No 14031400910256 be vacated by Defendant, the representative of the estate of Lee Kwan Ying, deceased; and

(3)  Costs order nisi as set out in paragraph 17 above.