Wong Ho-wing v. Wong Ho-kwan

DCCJ203/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 203 OF 2002

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J U D G M E N T

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1. The plaintiff claims against the defendant for the possession of the car park space No. 11 on Level 2, Southern Car Park, Wonderland Villas, No. 9 Wah King Hill Road, Kwai Chung, New Territories (I shall refer hereinafter to "the said car park").

2. The plaintiff further seeks a declaration that the defendant is not entitled to drive over or park a motor vehicle or use the said car park and an injunction restraining the defendant, whether by himself, his servant or agent, to use or drive over the car park or park on the said car park and he further claims damages against the defendant for trespass.

3. The defendant's defence as pleaded in his defence is that the defendant has an irrevocable licence to occupy the said car park.

Background of the Case

4. The plaintiff and the defendant are brothers. Their father bought the said car park in 1986 at the same time he purchased a flat in Wonderland Villas. The said car park was registered in the father's and the plaintiff's name as joint tenants.

5. It is not disputed that at the time of purchase the father of the plaintiff and the defendant incorporated a company called Wong Yuen Shun Transportation Company (I shall refer hereinafter to as "the company"). This company owned a numbered of cars and lorries, including vehicle No. AY 7778. It is also not disputed that the father had parked or caused his drivers to park the company's cars at the said car park before his death on 2 June 2001.

6. On 2 June 2001 the father, Wong To-so, passed away and it is the plaintiff's case that by survivorship the plaintiff became the sole legal owner of the said car park.

The Plaintiff's Case

7. The plaintiff claims he saw the defendant and sometimes the defendant's wife parking the car, registration No. AY 7778, at the said car park after the father's death.

8. In early December 2001, the plaintiff made a number of complaints to the management company of the said car park, one Hong Yip Services Company. He further wrote a letter on 4 December 2001 requesting Hong Yip not to allow other vehicles beside his own to park at the said car park. Hong Yip then sent a notice to the defendant as the owner of Flat B, 1st Floor, Block 11, Wonderland Villas, requesting the defendant to show his title to the car park, namely the tenancy agreement to the said car park. The letter referred to the plaintiff's earlier letter to Hong Yip claiming ownership and that the defendant's car, registration No. AH 388, had been parked at the said car park by the defendant and that a verbal warning had been given to the defendant on 1 December 2001.

9. The plaintiff in his evidence in court said in fact the management company, Hong Yip, had probably mixed up the number of that particular car referred to on their letter of 4 December. It should be AH 388. He recognised that as another car usually driven by the defendant.

10. On 13 December 2001 the defendant caused his then solicitor, Messrs Alan Ho & Co., to reply to Hong Yip's notice of 4 December 2001, claiming that the defendant has a right and/or licence to use the said car park, further claiming that the plaintiff had never objected to the defendant's occupation and the use of the said car park.

11. On 18 December 2001, the plaintiff's solicitor wrote to the defendant's then solicitor, Messrs Alan Ho & Co., referring to the letter of 13 December to Hong Yip denying that the defendant had any right or licence to use the said car park, and notified the defendant to cease using the said car park.

12. It is the plaintiff's evidence that the defendant failed to comply with the request and had been carrying on or occupying the said car park up to the present.

13. It is also the plaintiff's evidence that their father had intended the said car park for him for their father had bought another car park space on Level 3, No. 36 of the same housing complex for the defendant. The land search record showed that the car park space No. 36 on Level 3 is indeed registered in the defendant's name.

14. The plaintiff produced further rates and management fees receipts for the year 2000 that the plaintiff claimed he had paid.

The Defence Case

15. The defendant acted in person at the hearing. He was represented by Messrs Laurence Pang & Co. when an acknowledgement of service of the writ of summons was filed on his behalf on 22 January 2002. It was not until 23 July 2002 that a Notice to Act in Person was filed by the defendant.

16. On 4 February 2002, Messrs Laurence Pang & Co. filed a defence on behalf of the defendant. In the defence the defendant claims that his father and the plaintiff had allowed him occupation of the said car park under an irrevocable licence and that he was in lawful possession of the said car park.

17. In his own evidence in court, the defendant claimed the defence and the 13 December 2001 letter were written by his two former solicitors. He claimed either they both misunderstood him or had advised him wrongly. He attributed those to be the reasons he acted in person at the hearing.

18. He also claimed that he had informed the plaintiff's solicitor the car occupying the said car park was registered in the name of a company which his father and he have interests. This in fact appeared in paragraph 7 of the defendant's witness statement filed on 23 April 2002. The defendant admitted that no letter containing such claim was ever sent to the plaintiff's solicitor.

19. At the hearing the defendant insisted that the car occupying the said car park does not belong to him. In fact, he claimed he does not own any car. He claimed the car that occupied the car park space belongs to a company called Wong Yuen Shun Transportation Company (I shall refer to this company as "the company").

20. Consequently, the plaintiff had, according to the defendant, wrongly taking up the action against him. It is his stance throughout the trial that he should not be liable because the car that occupied the said car park space does not belong to him personally. He claimed he had told the drivers of the company on one occasion not to use the car park, but he said he did not do anything more about it.

21. He further claimed his mother and others in the family have been using the car park and that he himself used it less than once a month on average. He produced rates receipts for the year 2002 and these apparently were paid by the company. The defendant claimed that he is not liable for any damages that may be awarded.

Finding

22. The plaintiff's title to the said car park is clear and obvious. The defence put up by the defendant in the defendant's pleaded case is that he has an irrevocable licence to the said car park. Unfortunately, the defendant has been unable to produce any proof to support his claim that an irrevocable licence had been granted by his father and the plaintiff to him or to the company.

23. His evidence was, throughout, his father had allowed the company's cars to be parked at the said car park space. His father had sometimes himself parked the company's car and had driven the car, registration AY 7778, and parked at the said car park, and so had the company driver. After his father's death the company driver had driven his mother and parked at that space. Yet, in the defendant's witness statement of 22 April 2002 in paragraph 6 he had stated:

"However, it was always my father's intention that I could use and occupy the car park as long as I wish, or at least not earlier than the time when I moved out my residence in Wonderland Villas. My father's aforesaid intention had been very clearly notified to the plaintiff. The plaintiff has never made any objection to the same. In fact, it was because the plaintiff did not make any objection to the aforesaid arrangement my father did not insist to add my name or otherwise severance his interest in the car park before he passed away."

24. In paragraph 7 he went on to say:

"In fact the vehicle now occupying the car park is registered under the name of the company of which my father and I have shares or interests."

25. The defendant under cross-examination tried to blame his two former solicitors for the omissions made in paragraphs 2 and 3 of the defence and on his statement. He, however, was unable to point out exactly where in his witness statement he disagreed with, though he made a vague attempt to blame his former legal advisors for taking up the defence after discussing his case with him and with his full instructions.

26. I do not find the defendant a truthful witness. I find him extremely evasive under cross-examination. I do not accept his explanation that he was badly or wrongly advised on his pleaded case. On his own admission, his legal advisors have discussed his case with him before the defence was pleaded and his witness statement was drafted. The defendant himself signed his name in his witness statement.

27. In his witness statement he clearly attempted to assert facts that he hoped may establish an irrevocable licence of the said car park, which was to support his pleaded case. Unfortunately, those facts are insufficient to prove that there was ever an irrevocable licence. Consequently, at the hearing, knowing he would not be able to establish an irrevocable licence of the said car park. He tried to escape liability by claiming the car park at the said car park did not belong to him but to the company.

28. He was evasive when he was confronted with his ownership of car park No. 36 of Level 3. He claims he had no knowledge until he was shown by the plaintiff's counsel a copy of the land search of that car park No. 36 on Level 3, which was registered with his name as the registered owner.

29. From such evidence it is clear that he did not want the court to know that this car park No. 36 on Level 3 was given by his father to him, because he has claimed in his witness statement that his father had wanted him to use an enjoy the said car park.

30. The company search exhibited in P1 established that the defendant owned 199,998 of the 200,000 shares issued since 1997 of the company. It was long before his father's death on 2 June 2001. It must also be noted that the company returns for the years 1999, 2000 and 2001, were all signed by the defendant alone. Only his signature appeared on the company's returns.

31. The defendant claimed that he is only one member of the company and there are others. When asked to name the others he was only able to name his father and his mother. On the balance of probability I am satisfied the defendant controls the company after his father's death.

32. Clearly, when a shareholder owns all of the shares except two - one in the name of his father, one in the name of his mother - the irresistible inference must be he being the majority shareholder must have control of the company. The fact that his father has parked the company car and had allowed him and other company drivers to park the company's cars at the said car park, does not give the defendant or the company's drivers an unlimited licence to occupy the same car park after his death. In law a licence is by nature revocable on notice.

33. In the case of Ho Hang-wan v Ma Ting-cheung as the personal representative of Ma Tsz-tsang, deceased, [1990] 1 HKLR 649, the Court of Appeal held that a revocable licence is automatically terminated by the death of the licensor.

34. In the present case, whatever licence the plaintiff and the defendant's father had given to the defendant or the company or the company's driver must have terminated at the death of the father. The defendant had notice that the plaintiff wished him to stop using the said car park. The notice had been given through the management company, Hong Yip. It was the plaintiff's case that in the early part of December he complained to Hong Yip on an almost daily basis about the defendant occupying the said car park.

35. In any event, the notice by letter from the plaintiff's solicitors dated 18 December 2001 stated in no uncertain terms the plaintiff's intention. Therefore the date of receipt of this letter, presumably the same day, or one day later if by post, on 19 December 2001, the defendant should have notice of the plaintiff's intention requesting him to cease using the said car park.

36. The plaintiff's witness No. 2, the surveyor, his valuation of the said car park at $1,900 per month if rented out, has not been disputed. I accept the valuation to reflect the true open market value of rental.

37. In the circumstances, I am satisfied the plaintiff has proved the case against the defendant and I grant an order in terms of the prayer of this plaintiff's statement of claim. The order is:

(1)	an order of possession of the car park;
(2)	a declaration that the defendant is not entitled to drive over or park a motor vehicle or use the said car park;
(3)	an injunction restraining the defendant himself or his servant or agent to drive over or park a motor vehicle or use the plaintiff's said car park;
(4)	damages is assessed at the rate of $1,900 per month from 19 December 2001 to the date of this order. (It is about eight months and three days inclusive of today, the date of the order);
(5)	interest from 19 December 2001 to the date of judgment and thereafter at full judgment rate until payment in full.

(Discussion re costs)

38. I am satisfied that the costs should be to the plaintiff on an indemnity basis with certificate for counsel.