MAN FUNG CHOY v. MAN SHING LI

HCA9907/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9907 OF 1997

----------------

----------------

-------------------------

J U D G M E N T

-------------------------

1. This is an action in which the plaintiff sues in two capacities, firstly as the executrix of the estate of her mother ("the Mother") and secondly in her capacity as the sole beneficiary of the estate of the Mother.

The plaintiff's pleaded case

2. On 22 December 2000, she re-amended her Statement of Claim by deleting the whole of the amended Statement of Claim and put in a new pleading. Mr K.M. Chong, counsel for the plaintiff, pleaded that there was an unincorporated association of persons and a business t'ong called "Man Shek Chung Wui"; that the share of interest of the Wui's members of and in the Wui was divided into 32 "Tin Chung" or "Shek" or "Dau"; that the defendant was borne in 1946 and when he was 100 days old, he was adopted by the Mother as her adopted son; and that in 1950 (or 1951), the father passed away. Paragraph 9 reads as follows :

"9. Prior to 1956, the deceased [i.e. the Mother] acquired 5 'Tin Chung' or 'Shek' or 'Dau', being share of interest of and in the Wui (hereinafter called 'the deceased's interest') and she caused the same to be registered in the name of the Plaintiff's father."

3. The pleading goes on to allege that prior to the Mother's death in 1979, she had been the beneficial owner of her interest despite the fact that it was registered in the name of the father; that by a will dated 5 March 1979, the Mother appointed the plaintiff as her sole executrix and sole beneficiary of her estate and she expressly made no provision for the defendant on the express ground that he had been sufficiently provided for; and that on 3 June 1979, the Mother passed away. There is no allegation in the pleading on the provision, if any, made by the Mother for the defendant. The pleading went on as follows :

"15. On a day unknown to the Plaintiff but after the death of the Plaintiff's father, the Defendant applied to the managers of the Wui and caused himself to be registered as a member of the Wui in substitution of the deceased's interest on the sole ground that he was the adopted son of the Plaintiff's father.

16. By reason of the matters referred to in Paragraph 15 above but not otherwise, the Defendant was registered by the managers of the Wui as the registered owner in substitution of the name of the Plaintiff's father and thereafter he purported to receive share of rental income from the Wui as a member of the Wui to the extent of 5 'Tin Chung' or 'Shek' or 'Dau'.

17. The share of interest of the members of the Wui were, at all material times, not interest in land but it is analogous to the English concept of 'profit-a-prendre'. In the premises, statutory succession under S.17 of the New Territories Ordinance does not apply to succession of member's interest in the Wui.

18. Further, or in the alternative, if which is denied, the interest of its members were interest in land, the Plaintiff avers that :-

(a) no application has ever been made by the Defendant or by any person on his behalf to the Secretary for Home Affairs for statutory succession to the deceased's interest under S.17 of the New Territories Ordinance; and

(b) at no time had the Secretary for Home Affairs ever exercised his power under S.17 of the New Territories Ordinance to register the Defendant as a successor of the Plaintiff's father,

in the premises, the registration of the Defendant as a member of the Wui to succeed the interest of the paper interest of the Plaintiff's father was, and still is, void and of no legal effect as against the Plaintiff.

19. Further, or in the alternative, if which is denied, the interest of its members were interest in land, by reason of the fact that :-

(a) the deceased having made her last Will to deal with all her real and personal assets (inclusive of, inter alia, the deceased's interest) upon her death;

(b) the deceased having made her last Will bequeathing all her real and personal assets (inclusive of, inter alia, the deceased' interest) to a person other than the Defendant

the power of the Secretary for Home Affairs under S.17 of the New Territories Ordinance would not be exercisable.

20. By reason of the matters referred to in Paragraph 15 and 16 above, at all material times, the Defendant :-

(a) held and still holds membership in the Wui; and

(b) held and still holds all money and benefit derived from membership of the Wui

as a constructive trustee for and on behalf of the estate of the deceased and/or for and on behalf of the Plaintiff as the sole beneficiary of the estate of the deceased.

21. Despite repeated demands, the Defendant failed and refused and he still fails and refuses :-

(a) to notify the managers of the Wui of the fact that the deceased's interest belonged and still belongs to the estate of the deceased and to cause rectification of the register of the Wui; and/or

(b) give an account of all money and benefit received by him in his purported capacity as a member of the Wui in substitution of the deceased's interest upon her death.

22. Further, at all material times, the Defendant denied and still denies that the share of interest of the deceased belonged and still belongs to her estate and his liability to give a true and proper account of all money and benefit received from the Wui aforesaid.

AND the Plaintiff claims :-

(1) A Declaration that the deceased's interest of and in the Wui form part of the estate of the deceased.

(2) A Declaration that the Defendant's registration of himself as a member of the Wui in substitution of the deceased's membership upon her death was void and of no legal effect.

(3) A Declaration that, at all material times, the Defendant held and still holds his membership in the Wui as constructive trustee for and on behalf of the estate of the deceased and/or for and on behalf of the Plaintiff as the sole beneficiary of the estate of the deceased.

(4) An order that the Defendant doth give a true and correct account of all money and benefit received by him in his purported capacity as a member of the Wui in substitution of that of the deceased or alternatively an order for all account and enquiry to be taken as to all money and benefit received by the Defendant in his purported capacity as a member of the Wui and payment of all sums as may be found due and payable upon taking such account and enquiry.

(5) Further, or other relief as is just.

(6) Interest.

(7) Costs."

The defendant's 2 requests for particulars

4. The defendant requested particulars under paragraphs 9, 15 and 16. Not satisfied with the answers given, the defendant issued a summons for particulars. The learned Master declined to order any particulars and the defendant appealed. The defendant made a further request for particulars, asking for particulars under paragraphs 9 and 15. Not satisfied with the answers given, the defendant applied to me for particulars.

5. I propose to deal with both requests for particulars together.

Under paragraph 9

6. In the first request, the defendant asked the plaintiff to state "the date upon which it is alleged that the deceased acquired the 5 'Tin Chung' or 'Shek' or 'Dau' ".

7. The answer given is that: "The exact date is unknown to the Plaintiff but should be prior to the year of 1956".

8. In my judgment, this is a departure from Paragraph 9 which asserted that the acquisition and registration in fact took place prior to 1956, whereas "should be" prior to 1956 introduces the possibility that it might be in or after 1956. If the plaintiff wishes to change her case, the proper way is to further amend the Statement of Claim.

9. Mr Chong contended that the plaintiff's case had always been that the acquisition took place between 1951 and 1956 and that the defendant knew about it. His instructing solicitors drew his attention to paragraph 3 of the Reply (dated 20 days after the date of the particulars) where Mr Chong pleaded that :

"3. In reply to Paragraph 6 of the Re-Amended Defence, the Plaintiff admits that, after the death of the Plaintiff's father, on a day between 1951 and 1956, the deceased purchased 5 'Tin Chung' being share of interest of and in the Wui (i.e. the deceased's interest as defined in the Re-Amended Statement of Claim) and caused the same to be registered in the name of the Plaintiff's father."

10. The case under paragraph 3 of the Reply rules out the possibility of the acquisition having been made prior to the adoption of the defendant in 1946. However, it remains open to the plaintiff to proceed under the particulars on the basis that it took place in or after 1956. In my judgment, the hands of the plaintiff should be tied and she should be ordered to give particulars. Any and all inconsistencies in the pleadings and the particulars should be properly cured by amendment.

11. I turn now to the second request for particulars under paragraph 9. In the course of the submission of Mr Leo Remedios, counsel for the defendant, I asked him whether those "requests" were really interrogatories. I should add that Mr Chong did not object on the ground that those were interrogatories. Having considered the matter, Mr Remedios told me that he was no longer pressing the second request and that he would be proceeding with interrogatories. This means that it is no longer necessary for me to deal with the second request.

Under Paragraph 15

12. The first request reads as follows :

"State

(a) The date upon which it is alleged that the Defendant made the application to the managers of the Wui

(b) Whether the application was made orally or in writing

(c) If oral identify the person(s) to whom the Defendant made the application, the date of and the place where the application was made.

(d) If in writing identify the document(s).

(e) Whether the alleged ground upon which the Defendant made the application was made known to the mangers of the Wui orally or in writing.

(f) If oral identify the managers of the Wui to whom the Defendant informed of the alleged ground of his application, the date of and the place where the managers of the Wui were informed as alleged.

(g) If the ground upon which the Defendant made his application was made known to the managers in writing identify the document(s)."

13. The answer given by the plaintiff to each and every one of these requests is "unknown to the plaintiff".

14. If the plaintiff really knew absolutely nothing about any of the above, then the plaintiff could not have properly pleaded paragraph 15 as a fact.

15. It is the defendant's case (see paragraph 10 of the defence) that it was the Mother who caused the change of registration. In these circumstances the defendant is entitled to be informed far more than a bare assertion that he caused the change. Assuming that the plaintiff could properly have pleaded what Mr Chong pleaded in paragraph 15, particulars should be given. The particulars are crucial to the defendant in the preparation and conduct of his defence. Whether the plaintiff could prove paragraph 15 at the trial is irrelevant at this stage. The defendant cannot defend a bare assertion, devoid of all particulars.

16. The second request asked the plaintiff to state whether the defendant's application to the managers of the Wui to be registered as a member of the Wui was wrongful. The answer given was that : "This is a matter of law. The defendant is not entitled to the particulars." I am puzzled by the answer given by Mr Chong, which is in sharp contrast with his approach in pleading paragraphs 17 - 20 of the Re-Amended Statement of Claim and prayer (2). In my judgment, the plaintiff should be ordered to answer the request and state all facts and matters relied on if the answer is "yes".

Under paragraph 16

17. The first request asked for particulars of :

(a) "the date upon which it is alleged that the Defendant became registered by the managers of the Wui as the registered owner in substitution of the name of the plaintiff's father.

(b) Identify the managers of the Wui who registered the defendant as the registered owner in substitution of the plaintiff's father.

(c) The date upon which it is alleged that the Defendant commenced to receive share of the rental income of the Wui."

18. The answer given by the plaintiff to each of the above request is basically "unknown to the plaintiff".

19. There is a claim by the plaintiff for an account which is not restricted, whether to six years prior to the commencement of the action or at all.

20. Reading paragraphs 15, 16 and 19 together, Mr Chong seems to be suggesting that the registration took place after the Mother had made the will dated 5 May 1979. I am puzzled by Mr Chong's reference to the Secretary for Home Affairs instead of the Land Officer.

21. The defendant is entitled to know the date from which he is sued for an account, and also for the same reasons I have given under paragraph 15, the requested particulars are both relevant and material and the plaintiff should furnish them.

Disposition

22. The appeal must be allowed and the orders I make are as follows :

(1) Paragraph 1 of the order of the learned Master dated 23 March 2001 be set aside.

(2) The plaintiff do within seven days from the date of this order provide the Further and Better Particulars requested in the Request for Further and Better Particulars of the Re-amended Statement of Claim dated 3 January 2001, and the following Further and Better Particulars under paragraph 15 of the Re-amended Statement of Claim :

"Of the allegation that :

'On a day unknown to the Plaintiff but after the death of the Plaintiff's father, the Defendant applied to the managers of the Wui and caused himself to be registered as a member of the Wui in substitution of the deceased's interest on the sole ground that he was the adopted son of the Plaintiff's father.' "

State whether the defendant's application to the managers of the Wui to be registered as a member of the Wui was wrongful, and if the answer is in the affirmative, state all facts and matters relied on in support of the contention that the application was wrongful.

23. I make an order nisi that the plaintiff do pay the defendant his party and party costs of and occasioned by the two applications for Further and Better Particulars both before the learned Master and on appeal in any event, and that paragraph 2 of the order of the learned Master, with the exception of the certificate for counsel, be varied accordingly. The time taken on the second request under paragraph 9 was quite short and it was withdrawn on a ground not raised by Mr Chong.