CHAN SAI KWONG TONY v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF NGO PARK FONG, DECEASED

DCCJ 3652/2020

[2025] HKDC 1235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3652 OF 2020

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REASONS FOR DECISION

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Introduction

1.  Before me is the summons filed by the Plaintiff (“P”) on 28 May 2025 for default judgment be entered against the Defendant (“D”) for:

(a)  A declaration that the legal and beneficial title of Flat A, 7^th Floor, Winston Mansion, Nos 121-123 Chatham Road South, Kowloon, Hong Kong (the “Property”) was transferred to P under the doctrine of donatio mortis causa, and did not form part of the estate of the Deceased at the time of her death;

(b)  An order that the Property be conveyed to the Plaintiff absolutely;

(c)  Costs; and

(d)  Further and/or other relief (“Summons”).

2.  P’s Summons was made under O 15 r 15 of the Rules of the District Court (“RDC”). However, from P’s skeleton submissions, it is obvious that this was an application under O 19 r 7 of the RDC, which Mr Ng confirmed. Bearing in mind the Court’s general powers of management to take any other step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A and Order 1B r 1(2)(l), and the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties under Order 1A r 2(2), I exercise my residual discretion to allow the Summons to be made under O 19 r 7 of the RDC.

3.  P issued his Writ of Summons with a General Indorsement of Claim on 16 July 2020. A Statement of Claim (“SOC”) was also filed on 16 July 2020. D has not filed or served any notice of intention to defend and defence.

4.  By an Order dated 16 April 2024, the Official Solicitor was appointed to represent the estate of the Deceased and accept service of the Writ. By a letter dated 20 May 2024, the Official Solicitor confirmed the service of the Writ.

5.  By a letter dated 17 July 2024 to the Department of Justice, Messrs Lau, Wong & Chan, Solicitors for the Plaintiff, sought confirmation as to whether the Secretary of Justice had any intention to claim any interest in the Property. Copies of the Writ of Summons, SOC and the Order dated 16 April 2024, among other documents, were attached to the letter.

6.  By a letter dated 7 August 2024, the Department of Justice confirmed that the Government did not intend to participate in the proceedings, but reserved its interest in the event that P’s claim is unsuccessful. A representative of the Department of Justice attended the hearing of the Summons as an observer.

7.  At the end of the hearing of the Summons, I gave judgment for P. These are my reasons.

Service of the Proceedings and the Summons

8.  Pursuant to the Court’s Amended Order dated 3 February 2025, service of the SOC filed on 16 July 2020 and all subsequent documents that required service in this action under the RDC by leaving or by post at the Property shall be deemed as good and sufficient service on D.

9.  The Affirmation of Choy Tak Ching affirms that service of the SOC and all subsequent documents were made to D by leaving the same to D on 7 February 2025 at the Property. The documents have not been returned.

10.  The Second Affirmation of Choy Tak Ching affirms that the service of the Summons was made to D by leaving the same to D on 3 June 2025 at the Property. The documents have not been returned.

11.  I am satisfied that D has been given proper notice of the hearing and it is expedient to proceed to hear P’s application notwithstanding D’s absence, pursuant to O 32 r 5(1) of the RDC.

Applicable principles

12.  As D has not filed any defence, P is entitled to apply for judgment pursuant to O 19 r 7 of the RDC.

13.  The Court’s power to grant a default judgment under O 19 r 7 of the RDC is discretionary and the Court has to consider P’s case according to the pleadings. While P must show a case for the order which he seeks to obtain, it is not necessary for him to prove his case by evidence. It is not the normal practice of the Court to make a declaration of rights without a trial. This is, however, not a rule of law, but only a rule of practice which should not be followed when P had a genuine need for the declaratory relief and if justice would not be done in the event such relief were denied. The Court will scrutinise the application for default judgment carefully and will not hastily grant the relief sought. The declaratory relief to be granted should not be in terms wider than what P is entitled to and what is necessary to do justice to him: Lin Loi Hing v The Personal Representative of Lin Lok Shi also known as Lok Kiu (Deceased) [2024] HKCFI 3056 at §§9-10 per Tam J.

14.  In the Court of Appeal judgment of Re Estate of Lung Nga Lai Eilly [2014] 4 HKLRD 829 Yuen JA (as she then was), set out the three requirements of a donatio mortis causa (at §7):

(a)  The donor must have made the gift in contemplation though not necessarily in expectation of death;

(b)  The donor must have delivered to the donee the subject matter (in the case of a chose in possession) or the indicia of title (in the case of a chose in action) of the gift, or transferred to him the means of getting at that subject matter or indicia of title, eg delivering a key, like car keys, or a key to a box containing the indicia of title, intending to part with dominion over the gift; and

(c)  The gift must be such as to be absolute and complete only on the donor’s death so that it is revocable before then. A condition to this effect need not be expressed and will normally be implied from the fact that the gift was made when the donor was seriously ill.

Discussion

15.  I accept P’s case on donatio mortis causa. The SOC shows a case for the order that P seeks to obtain. As pleaded in §14 of the SOC,

(a)  The Deceased was hospitalised in Queen Elizabeth Hospital in or around mid 2005. During a visit to P’s home while taking leave from hospitalisation that day, the Deceased made the Property as a gift in contemplation of death. She told P that she would leave the Property to him after she passed away.

(b)  The Deceased delivered to the Plaintiff the indicia of title. In or around late 2005, the Deceased handed the keys of the Property to P - which consisted of 3-4 keys, including a key for the main door of the Property, one for the drawer of the study desk and one for the mail box. She told P that the title deeds of the Property were kept inside the locked drawer in the study desk of the Property.

(c)  The Property as a gift was absolute and complete only on the Deceased’s death. The Deceased told P that she would leave the Property to him after she passed away. The Deceased returned to Queen Elizabeth Hospital and was never discharged and subsequently died (§15 of the SOC). P took possession of the Property and obtained the title deeds inside the drawer (§16 of the SOC).

16.  This was uncontested. I see no reason not to accept P’s case on the facts.

17.  I agree that P also has a genuine need for declaratory relief, and justice would not be done if such relief were denied for the following reasons:

(a)  P’s son has been living in the Property (§16 of the SOC). P would not be able to deal with the Property properly and legitimately as legal and beneficial owner such as transferring the Property to his son, selling or otherwise disposing of the Property.

(b)  P commenced these proceedings on 16 July 2020 – nearly 5 years ago. No one acting for and on behalf of D has ever come forward to oppose the action: see Lin Loi Hing at §28.

(c)  As pleaded in §§1(1) and 3 of the SOC, no grant of probate or letters of administration has ever been obtained in respect of the Deceased’s estate since her death on 21 October 2005 (ie for almost 20 years): see Lin Loi Hing at §28. As stated above, the Department of Justice has also confirmed that it does not intend to participate in these proceedings.

Disposition

18.  For all the reasons above, I make the following orders:

(a)  A declaration that the legal and beneficial title of the Property was transferred to P under the doctrine of donatio mortis causa, and did not form part of the estate of the Deceased at the time of her death;

(b)  A vesting order that D and/or the Official Administrator do sign and/or execute all such document(s) and/or assignment(s) necessary to convey, transfer, and/or assign the Property to P within 56 days of the date of the Order;

(c)  In the alternative, failing D signing or executing all such document(s) and/or assignment(s) necessary to convey, transfer, and/or assign the Property to P, a partner of P’s solicitors be authorised within 21 days thereafter to sign and/or execute all such document(s) and/or assignment(s) necessary to convey, transfer, and/or assign the Property to P under section 38A of the District Court Ordinance (Cap 336);

(d)  There be liberty to apply; and

(e)  There be no order as to costs.

19.  I thank Mr Ng for his assistance.