TANG WANG KEI KEITH v. TANG CHUN WAH AND OTHERS

DCCJ 1673/2017

[2021] HKDC 1448

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1673 OF 2017

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BETWEEN

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DECISION

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INTRODUCTION

1.  There are 3 summonses to be dealt with here.

2.  First, there is the summons dated 27 July 2020 issued by the 1^st defendant Tang Chun Wah (鄧春華) (“D1”) and the 2^nd defendant Tang Wan Sang (also known as Tang Wan Sang Sam) (鄧運生) (“D2”) under Order 15, rule 13 of the Rules of the District Court, Cap 336H (“RDC”) asking the Court to appoint them to represent the 6^th defendant, namely, ‘Tang Ming Kwong Tso’ (鄧明光祖) (“D6”/“the Tso”) in place of Tang Tin Yin (鄧天然) (“TTY”) in order “to defend on behalf or for the benefit of all the members of (the Tso)” (“the Representation Summons”).

3.  Second, there is the very belated application made by the plaintiff (“P”) by way of a summons dated 5 August 2020 seeking to enter default judgment against D6 under Order 13, rule 6 of the RDC (“the Default Judgment Summons”).

4.  Third, there is P’s last minute application to seek retrospective leave to file and serve the affirmation of Madam Lau Yun Kiu’s (劉潤嬌) (“Madam Lau”) which was filed without leave of the Court on 13 January 2021.

BACKGROUND

5.  In the present proceedings, P claims against all 7 defendants for easement, right of way and access road to and from a piece of land known as “Lot 2999 in Demarcation District No. 111 and of and in the building thereon” (“Lot 2999”). P alleges certain right of way against the 3 adjourning lots, namely, Lot 2998, being D6/the Tso’s land, Lot 2953 owned by Tang Wai Wing (“D5”), and Lot 2997RP owned by the 7^th defendant (“D7”), another Tso, which P claims to be a member of. The latter 3 parties were added as party to the proceedings in March 2018 by the amended writ (collectively the servient lots) pursuant to the Order of Registrar Ho dated 14 March 2018.

6.  The other defendants, namely, D1, D2 and the 3^rd defendant (“D3”) were alleged to have infringed the land rights of P despite the fact that they do not own any piece of land in the present dispute[1].

7.  Apparently, TTY did not file any acknowledgement of service in his capacity of the manager or “Sze li” of the Tso. D1 and D2 dispute the validity of the service. D1 & D2 claim that P knew that TTY has been missing since October 2014 and has not been seen by any member of the Tso since that time. In light of TTY’s disappearance and permanent absence from the affairs of the Tso, the members of the Tso held a meeting on 14 April 2018 and a resolution was passed to have D1 & D2 to represent D6 to defend this action[2]. On the other hand, P sought to enter default judgment against D6 on 5 August 2020 by the Default Judgment Summons discreetly without informing the other defendants. The summons was opposed by D1 to D5.

8.  The substantive question at trial would be whether the servient lots owners are entitled to build fencing surrounding their own lots, which naturally restricts access to and from P’s land. In other words, does P has a right of way as claimed by him.

9.  Prior to this action, P had constructed utilities pipes, drainage and ducts passing through the servient lots. Hence, even if the Court is minded to give P right of way as claimed by him, these utilities pipes and ducts had allegedly been wrongful constructed and P would be either liable for trespassing or nuisance in the branches of tort law.

DISCUSSION

D1 & D2’s application

10.  D1 & D2’s application is premised on O15, r13 of the RDC, whereby they submit that the Court has, subject to the rules stated therein, an unfettered discretion to order anyone to represent the Tso, in light of TTY’s disappearance and long term absence from the affairs of the Tso.

11.  In D1’s 3^rd affirmation filed in support of the application on 27 July 2020 (“D1’s 3^rd Aff”), he has deposed of the fact that TTY was found missing in or about October 2014. Since then, none of the members of the Tso has seen him alive up to date. In fact, in a YouTube clip of the Hong Kong Police exhibited in D1’s 3^rd Aff, there was an appeal to the public to locate TTY as a missing person. It was stated that TTY had been missing since 13 October 2014. Thus, if this is true, then since the date after he was found missing, the Tso did not have a manager or ‘Sze li’ to takes care of its business.

12.  The fact that TTY has been missing since October 2014 is further supported by the resolution passed by the 7 members (out of 8 members present with only P objected) on 14 April 2018, appointing D1 & D2 to represent the Tso to defend this action (see Exhibit TCW-7 of D1’s 3^rd Aff) and the subsequent written consent signed by D1 & D2 to represent the Tso due to D6’s missing (see Exhibit TCW-8 of D1’s 3^rd Aff).

13.  Instead of directly dealing with the factual issues raised by D1 in his affirmation, P, in what I would describe as a cynical and tactical move, issued the Default Judgment Summons on 5 August 2020. In P’s affirmation in support of his application, he has confirmed that TTY is his father but without mentioning the fact that he has been missing since October 2014. He has also failed to mention the crucial fact that he and his father allegedly shared the same residential address at No.49 Wang Toi Shan Ho Lik Pui, Pat Heung, Yuen Long, New Territories, which was the address his former solicitors have served the amended writ of summons (“AWOS”) and amended statement of claim (“ASOC”) on 20 March 2018.

14.  In P’s affirmation in opposition of D1 & D2’s application to appoint them to represent the Tso to defend the action filed on 8 September 2020, he did not dispute the fact that TTY has been missing since October 2014. He only took some technical objections of D1 & D2’s application, including the fact that it was allegedly 27 months late and that the YouTube clip announcement of the Police was hearsay and inadmissible evidence. He never disputed the fact that his father TTY has been missing since October 2014, least to say that his father was still living in the same house as him when the AWOS and the ASOC were served on TTY on behalf of the Tso by his former solicitors in March 2018.

15.  There was a very belated attempt on the part of P to try to patch this glaring evidential hole by way of an affirmation filed by D6’s wife Madam Lau on 13 January 2021 where Madam Lau asserted, but without providing any objective evidence like photographs or documents, that TTY and her were still living in the same address at No.49 Ho Lik Pui, Wang Toi Shan in 2017 and 2018. P’s solicitors at first tried to insert Madam Lau’s affirmation in the hearing bundle without leave at the original scheduled hearing for the Representation Summons and Default Judgment Summons on 27 January 2021. However, that hearing had to be adjourned to 11 February 2021 due to the fact that Madam Lau’s affirmation was inserted into the bundle without leave of the Court and the messing up of the pagination of the hearing bundles provided to the Court by P which made the hearing not possible to proceed.

16.  Subsequently, a summons was taken out by P’s solicitors on 2 February 2021 for retrospective leave to file and serve the affirmation of Madam Lau at the hearing before me at the adjourned hearing on 11 February 2021.

17.  In order not to cause further delay, I was prepared to receive Madam Lau’s affirmation on a de bene esse basis at the adjourned hearing on 11 February 2021. I can quickly deal with the matter here.

18.  I am very skeptical of the matters deposed by Madam Lau in her affirmation. I find it difficult to believe that she would say that her husband and her had all along living under the same roof but they just did not talk or see each other over the years. That the letters, including those from the law firms, would be left in her husband’s room and would be taken away from time to time by someone (allegedly by her husband). Obviously, if her husband has been found or turned up to live in the village, either P or members of the Tso would have seen him over the years and the Police would be informed. Madam Lau’s bare allegations just do not have any ring of truth to it. I have no hesitation to reject her evidence.

Order 15, rule 13 of the RDC

19.  Order 15, r 13, (l)(b) and (2)(b) of the RDC provides as follows:

“(1) In any proceedings concerning –

(a) ….

(b) property subject to a trust, or

(c) ….,

the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or uncertain interest) in or affected by the proceedings.

(2) The conditions for the exercise of the power conferred by paragraph 1 are as follows ---

(a) …..

(b) that the person, class or some member of the class, though ascertained, cannot be found”;

(c)….”

20.  These proceedings concern P’s claim of right of way through the properties owned by D5 to D7. It is not disputed that the Tso is a form of Chinese customary trust. Hence, the interest of the Tso and indirectly its members, currently supposed to be managed and represented by TTY, would be affected by the outcome of the present proceedings if TTY has been missing and cannot represent their interest: see §15/13/3 and 15/13/7 of Hong Kong Civil Procedure 2021.

21.  I accept D1 & D2’s case that TTY in fact has been missing and cannot be found since 2014. I make such findings based on the fact that:-

(i) D6 has not convened or attended any meeting of the Tso since October 2014;

(ii) no member of the Tso has seen him alive from October 2014 up to date;

(iii) the police announcement on the TV programme for missing person (as verified by the YouTube clip) has confirmed that he has been missing since 13 October 2014;

(iv) P is not disputing the contents of D1’s 3^rd aff in this regard; and

(v) the inherent improbabilities of Madam Lau’s latest bare assertions without any supporting evidence.

22.  P disputes that the YouTube clip is hearsay evidence and therefore is inadmissible. I agree with Mr Chu for D1 to D5 that the content of the Police’s TV programme of missing persons can be verified at trial and can be subjected to cross examination if necessary. Moreover, hearsay evidence is generally admissible in civil proceedings during interlocutory stage, unless the party who objects can satisfy the Court that the exclusion of the evidence is not prejudicial: See section 7 of Evidence Ordinance, Cap 8. On the face of the missing person announcement, I am satisfied that TTY in fact has been missing since October 2014.

23.  In this regard, I am of the view that D1 & D2 have satisfied the requirements under O15, r13(1)(b) and (2)(b).

Section 15 of New Territories Ordinance

24.  Under section 15, New Territories Ordinance, Cap 97 (“the Ordinance”), it provides that tso or t’ong shall appoint a manager to represent it in dealing involving tso and t’ong’s land, and that such appointment shall require the approval of the Secretary for Home Affairs, and that the Secretary for Home Affairs shall register the name of the approved manager, who shall then be empowered by section 15 to dispose of the land. The “Sze li”/manager who is vested with the power to run and manage the affairs of the Tso as if his own property and be personally liable: See for example Tang Yau Yi Tong and Another v Tang Mou Shau Tso and Others [1996] 2 HKLR 212, Court of Appeal.

25.  As stated by Anthony To J in Tang Fu Sun, v Tang Lik Yuen, [2016] 4 HKLRD 608 at p 618, §36, this is different from the appointment, removal and functions of a duty manager which are matters of internal administration of tso or t’ong and every tso and t’ong has its own set of regulations.

26.  As D1 & D2 are not asking for the replacement of TTY as manager of the Tso, I do not consider section 15 of the Ordinance is applicable in their application.

Resolution passed by members of the Tso

27.  In this case, P challenges the validity of the resolution passed in the meeting which only limited to appoint D1 and D2 to represent the Tso to defend the present proceedings. However, in my view, D1 & D2’s application is not meant to replace TTY as the manager of the Tso in order to dispose of the land which needs the approval of the Secretary for Home Affairs under section 15 of the Ordinance.

28.  I do not see why the majority of the members of the Tso who will ultimately be affected by the outcome of this case cannot appoint D1 and D2 to represent the Tso’s interest when it manager has been missing for years.

29.  P argues that the 8 members who attended the meeting only represented 7 families out of the total 9 families of the Tso. P claims the resolution passed among the 7 families of the Tso on 14 April 2018 could not represent the common wishes of members of 9 families of the Tso. However, I note that the only person who had voted against the resolution at the meeting was P himself. All 7 other members unanimously voted in favour of the resolution.

30.  In not providing any specific Tso rules, P has in my view ignored the voting mechanism and distorting the meaning of “common wish” of the Tso. P first disingenuously assumes the 2 other families (representatives) might have voted down the resolution. Even if it is true, 6 families out of 9 votes was in favour of the resolution, which may well be sufficient, given that the majority rule prevails.

31.  In my view, P has confused the present subject matter with the appointment of a manager in dealing involving tso or t’ong’s land which would require the approval of the Secretary for Home Affairs.

32.  In Shenzhen Luohu Runan Industrial Limited Company v Un Kau Kung Tso, HCMP 2320/2000, unreported, 17 December 2001, which is another Tso case, Deputy High Court Judge Muttrie, made a representation order under Order 15, rule 13 and stated at §20 the following:

“Further I do not see that Order 15, rule 13 requires any particular connection with the trust, in a person appointed by the court to represent it. The court can and often does appoint an administrator ad litem. It seems to me that the applicant has demonstrated sufficient interest for him to be appointed to represent the defendant under Order 15, rule 13. I will therefore make the appointment as applied for, but refuse the alternative application to join him as a defendant.”

33.  In my view, in appropriate situations, the Court can order someone to represent a missing trustee who is, for one reason or another, unwilling or unable to defend any action against the trust. It would be unfair and unjust to let the case goes by default, whereby the beneficiaries would stand suffering from such result.

34.  In the aforesaid circumstances, I would allow D1 & D2’s Representation Summons and make an order to appoint them to represent D6 to defend on behalf of or for the benefit of all the members of the Tso.

35.  I further make an order that P to pay the costs of D1 & D2 of the Representation Summons, including the costs wasted as a result of the adjourned hearing caused by the late filing of Madam Lau’s affirmation without leave of the Court and the mixing up of the hearing bundles on 27 January 2021. Such costs should be taxed if not agreed, with certificate for counsel.

Default Judgment Summons

36.  In what I would describe as a cynical ploy to exploit the disappearance of TTY, P applied belatedly for default judgment against D6 in this case. Although technically, P has to defeat every one of the 3 landed defendants, namely D5 to D7, in order to succeed in his claim of right of way, I find P’s effort to secure default judgment against D6 only in this action is plainly a tactical move in order to try to defeat D1 & D2’s Representation Summons.

37.  As I have found above, I am of the view that P has full knowledge that his father TTY has been missing since October 2014. Nonetheless, with the assistance of his former solicitors, P proceeded to serve the AWOS and ASOC on his last known address, which happen to be the same address as him and his mother. I find that P knew very well that TTY has been missing and has not been living in that address for many years, at least not since October 2014, at the time when he issued the proceedings against D6. Yet he chose to discreetly serve the AWOS and ASOC on TTY on behalf of the Tso on the same address without informing the other defendants. In doing so, I find P was blatantly trying to take advantage of the disappearance of TTY and attempted to enter default judgment against the Tso when P knew very well that its manager, ie his father, has not been living in that address for years. Therefore, any purported service on his last known address cannot in my view be considered as good service in the circumstances.

38.  In the aforestated premises, I find the service of the writ is defective and should be set aside.

39.  Based on the above, I would dismiss P’s Default Judgment Summons, including the costs of the summons dated 2 February 2021 in applying for retrospective leave to file and serve the affirmation of Madam Lau, with costs in favour of D1 and D5, such costs to be taxed if not agreed with certificate for counsel.