SUNG KHAY, THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LAM LING YING LINDA (Deceased) v. LINDA CHAN, THE PERSONAL REPRESENTATIVE OF THE ESTATE OF SUNG KESTER KER (Deceased)

HCMP 338/2017

[2023] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 338 OF 2017

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D E C I S I O N

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1.  This case concerns the ownership of two units in Shatin City One (“the Properties”). While Mr Sung Kester Ker (“Ker”) was alive, Ker was the registered owner of the Properties. After the death of Ker, Ker’s mother, Madam Lam Ling Ying Linda (“the Mother”) commenced these proceedings against Ker’s estate in 2017. The Mother claimed that she was the sole beneficial owner of the Properties. Alternatively, she was a beneficial owner of the Properties to the extent which the Court deems fit.

2.  After many years, there has not been much progress in this case. By now, the Mother has passed away. Mr Sung Khay (“Khay”, the Mother’s elder son and the elder brother of Ker) is representing the Mother’s estate continuing these proceedings. For the purpose of these proceedings, Ker’s estate is represented by Madam Linda Chan (“Linda”). According to Linda, she was the lawful spouse of Ker while Ker was alive.

3.  By a summons dated 8 March 2023 (“the Summons”), Linda seeks (a) an order to vacate the registration of the lis pendens against the Properties in the Land Registry, and (b) an order dismissing the Originating Summons herein, with costs.

4.  I heard the parties on 21 June 2023. In that hearing, Linda said that her application was based upon two grounds:

(1)  The beneficial ownership of the Properties has already been determined by the Court. Since the subject matter in this case has already been decided, Khay should not be allowed to continue these proceedings.

(2)  Alternatively, the Originating Summons should be dismissed for want for prosecution.

Ground 1 – Beneficial ownership already determined by the court?

5.  In the hearing on 21 June 2023, Linda insisted that the beneficial ownership of the Properties has already been determined by the Court. However, she was unable to produce any court document in support of her point. The existence of a court’s decision on the beneficial ownership of the Properties alleged by Linda was denied by Khay. I gave an adjournment of more than half an hour to Linda to find out the relevant court document(s) in support of her submission. However, after the adjournment, Linda still could not produce anything to the court. But Linda maintained her stance and reiterated that the subject matter in these proceedings has already been determined by the court. In order to have a clear answer in this issue, I adjourned the hearing to 19 July 2023 to give further time to Linda to find out the relevant court document(s). I directed that Linda should lodge with the court copies of the relevant court document(s) within 14 days.

6.  Subsequently, by an affirmation dated 4 July 2023, Linda has produced copies of some documents. I have examined these documents carefully. Suffice for me to say that none of these documents is a document showing that the court has made a decision on the beneficial ownership of the Properties.

7.  There is no merit in Ground 1.

Ground 2 – Want of prosecution

8.  As to want of prosecution, in Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935, Ma CJ said:

“75(4) In the context of abuse, some mention should be made of ‘warehousing’. I have already referred to this earlier. Merely for a party to start proceedings and then delay (which will often involve a failure to comply with the applicable rules of court) will not necessarily amount to an abuse justifying an order to strike out an action. The appropriate remedy in such cases may be for the court to exercise some of the powers I have already mentioned (such as the making of peremptory orders, the payment into court of substantial sums etc). In order for the ‘warehousing’ of claims to justify striking out, it must be clear that the plaintiff is abusing the process of the court. Accordingly, where the ‘warehousing’ of claims indicates that there is simply no intention to bring proceedings to a conclusion or there is a “wholesale disregard” of the rules or court orders, abuse can be found to exist ……”

9.  I have to say that there has been much delay in these proceedings. However, having reviewed the documents in this case, I cannot reach the conclusion that the Mother, and subsequently Khay, have no intention to bring the proceedings to a conclusion or there has been a “wholesale disregard” of the rules or court orders. In the past, there were matters occurring in each year. The parties were focusing on appointing representatives to represent the respective estates in these proceedings and legal aid matters. However, the actions taken by the parties in this case did not really have the effect of bringing the proceedings forward.

10.  I refuse to dismiss the Originating Summons on the ground of want of prosecution. In my view, in the circumstances of this case, the appropriate order to be made is not an order dismissing the plaintiff’s claim, but an order with the effect of moving these proceeding forward.

Disposition

11.  I dismiss the Summons. Costs should follow the event. I order that costs of the Summons be paid by Linda to Khay forthwith. I summarily assessed those costs at HK$2,000.

12.  I would give directions for the further conduct of these proceedings. In my view, there are substantial factual disputes in these proceedings. It would not be appropriate to resolve these proceedings by an Originating Summons. The proceedings should be converted to writ proceedings. In fact, Linda has taken out a summons to convert the proceedings here to writ proceedings on 31 January 2018. The summons was heard by Master KW Wong on 6 February 2018. However, just a few days before the summons, on 1 February 2018, the Mother passed away. Accordingly, in the hearing on 6 February 2018, the learned Master adjourned the hearing of the summons sine die with liberty to restore. In my view, it is necessary to convert these proceedings to writ proceedings, and move forward from there.

13.  I order that:

(1)  the proceedings herein be continued as if it had been begun by writ;

(2)  leave to the plaintiff to file and serve a statement of claim within 28 days;

(3)  leave to the defendant to file and serve a defence (or a defence and counterclaim) within 28 days thereafter;

(4)  leave to the plaintiff to file and serve a reply (and together with a defence to counterclaim, if applicable) within 28 days thereafter;

(5)  leave to the defendant to file and serve a reply to defence to counterclaim (if applicable) within 28 days thereafter;

(6)  not less than 14 days after the close of the pleadings, there be a hearing for directions before a Master on a date to be fixed by the Registrar or a Master, estimated length of the hearing be determined by the Registrar or a Master;

(7)  time shall continue to run during the Summer Vacation.

14.  For avoidance of doubt, the aforesaid directions may be varied by the Registrar or a Master of this court.

15.  Lastly, I remind the parties that they may try to resolve the differences between them by negotiation or by mediation. However, I also remind Khay that as he is representing the plaintiff, he has the obligation to use reasonable diligence to bring these proceedings to a conclusion as soon as practicable, notwithstanding that some negotiation or mediation may be contemplated or is in place.