CHUNG WAI MAN v. WONG TING HEI

DCCJ 5789/2024

[2026] HKDC 444

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5789 OF 2024

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REASONS FOR JUDGMENT

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INTRODUCTION

1.  This is the Plaintiff’s application by summons dated 20 January 2026 for default judgment against the Defendant under Order 19 rule 7 for a declaration that the Plaintiff is the sole beneficial owner of the property known as Flat 6, 32^nd Floor, Block E, Ting Chung Court, 3 Tin Wing Road, Tin Shui Wai (“Property”) and the Defendant is holding the Property on trust for her. The Plaintiff also seeks the ancillary order directing the Defendant to transfer the legal title of the Property to her.

2.  At the hearing on 2 March 2026, I made the declarations that the Plaintiff is the sole beneficial owner of all interests, rights and title in the Property; and the Defendant holds the Property on trust for the Plaintiff. I also made an order that the Defendant do transfer the legal title of the Property to the Plaintiff.

3.  Here are my reasons.

BACKGROUND

4.  The Plaintiff is the Defendant’s mother. On 14 January 2000, the Plaintiff acquired the Property under the Home Ownership Scheme after she surrendered her public housing unit the Housing Authority.

5.  The Property was registered in the names of the Plaintiff and the Defendant by way of joint tenancy. It is the Plaintiff’s case that the original plan was to pass the Property to the Defendant when she died subject to his contributing to the mortgage repayment and taking care of her upon her retirement.

6.  However, the Defendant failed to make any contribution after the acquisition of the Property. As a result, the Plaintiff was the one who solely paid the monthly instalments of the mortgage and other expenses relating to the Property.

7.  In May 2004, the Defendant suddenly disappeared and the Plaintiff filed a missing person report to the Police. By the letter dated 4 October 2004, the Police informed the Plaintiff that the Defendant had attended the police statement to cancel the missing person report and no further action would be taken by the Police. However, the Defendant did not return home or contact the Plaintiff.

8.  In 2006, the Plaintiff filed another missing person report to the Police. By the letter dated 29 July 2006, the Police informed the Plaintiff that the Defendant was located on 26 May 2006 and therefore no further action would be taken by the Police. It became clear by then that the Defendant wanted to cut the tie with the Plaintiff.

9.  It is the Plaintiff’s case that she has retired and has little income. She intends to sell the Property to support her living but is unable to do so because the Defendant is still one of the registered owner of the Property.

10.  The Plaintiff commenced the present proceeding on 27 July 2021. She was unable to serve the Writ of Summons because she did not know the whereabouts of the Defendant. Probate Registry search was conducted and there was no record of the Defendant.

11.  Pursuant to the Order of Master B Mak dated 29 May 2025, the service of the Writ of Summons was to be effect by inserting a notice of advertisement once in Hong Kong Commercial Daily Newspaper. The Plaintiff complied with the said Order on 23 July 2025.

12.  As the Defendant did not file any notice of intention to defend, the Plaintiff applied for default judgment on 20 January 2026.

PRINCIPLES ON DEFAULT JUDGMENT

13.  The principles on granting default judgment under Order 19 rule 7 are well-established and have been helpfully summarized by Deputy High Court Judge William Wong SC in Times Square Limited v Lee Kwun Kit trading as JL Music and Others [2020] HKCFI 438 as follows:-

(1)  The default judgment procedure under Order 19 rule 7 is available in cases where the defendant is in default of notice of intention to defend, as well as in default of defence;

(2)  In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the plaintiff appears to be entitled to judgment on its statement of claim;

(3)  The court cannot receive any evidence, and it is thus not necessary for the plaintiff to prove its case by evidence;

(4)  Notwithstanding the wording in Order 19 rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory;

(5)  With regards to the Plaintiff’s claim for injunctive relief, it is well-established that the court has jurisdiction to grant permanent injunctions in default judgments.

HOUSE-KEEPING MATTERS

14.  By another summons dated 25 February 2026, the Plaintiff applied to amend the Statement of Claim by adding “Block E” and “Hong Kong” to the address of the Property (“Amendment Application”).

15.  Mrs Daley explained that the purpose of the Amendment Application was to correct the omission in the Property’s address in the Statement of Claim. She submitted that the correction would cause no prejudice to the Defendant as the full address of the Property was correctly stated in the notice of advertisement inserted in Hong Kong Commercial Daily Newspaper on 23 July 2025. Since the address of the Property in the Hong Kong Commercial Daily Newspaper was in Chinese, Mrs Daley submitted a copy of Demand for Rates and Government Rent for January to March 2026 showing both English and Chinese addresses of the Property.

16.  I accepted Mrs Daley’s submissions and granted leave to the Plaintiff to amend the Statement of Claim as per the draft attached to the summons dated 25 February 2026. I was of the view that this was an appropriate case to dispense with the service of the Amended Statement of Claim and I made the order accordingly; Hong Kong Civil Procedure 2025 §18/1/6.

DISCUSSIONS

17.  Mrs Daley cited the Court of Appeal’s decision in Suen Shu Tai v Tam Fung Tai [2014] 4 HKLRD 436 and submitted that the presumption of advancement should not apply to the Defendant as he was an adult of 19 years old at the time of purchase.

18.  In Suen Shu Tai, although Cheung JA cited the Supreme Court’s decision of Canada in Pecore v Pecore [2007] 1 SCR 795 where it was held that the presumption of advancement does not apply to an independent adult child, the learned JA expressly indicated that he would leave this question open.

19.  In any event, I do not consider that the presumption of advancement would operate in the present case because the Plaintiff’s intention has been pleaded in the Amended Statement of Claim.  

20.  Mrs Daley submitted that, as the Plaintiff was the one who paid the entire purchase price of the Property, the presumption of resulting trust should apply and the Defendant was holding the Property on resulting trust for the Plaintiff.

21.  The applicable legal principles are trite and conveniently summarized by Deputy Judge Eugene Fung (as he then was) in Hui Cheung Fai v Dai Wa Development Ltd, HCA 1734/2009, 8 April 2014 at paragraph 58(1) as follows:-

“Where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions.”

22.  This type of resulting trust is commonly known as “purchase money resulting trust”. As pointed out by the learned Deputy Judge, it can be rebutted either by direct evidence that A intended to benefit B, or by a counter-presumption of advancement.

23.  I do not think that the Plaintiff needs to rely on any presumption. It is clear from the Amended Statement of Claim that she did not intend to make a gift to the Defendant when she purchased the Property, and the beneficial interest of the Property would only be passed to the Defendant upon her death subject to the Defendant having contributed to the mortgage repayment and taken care of her after her retirement. In other words, the Defendant has no beneficial interest in the Property during the Plaintiff’s lifetime and is simply holding the legal title of the Property on trust for the Plaintiff.

24.  I therefore allowed the Plaintiff’s application and made the declaration and order in terms of paragraph 2 above. I also made an order that Mr Moses Kong, a solicitor in Hong Kong be appointed to execute the necessary document for the transfer on behalf of the Defendant.

25.  Upon Mrs Daley’s confirmation that the Plaintiff would bear all expenses for the transfer and would not seek costs against the Defendant, I made no order as to costs in respect of the action (including the present application).

26.  I thank Mrs Daley and Mr Wong for their assistance to the Court.