TSANG KAM FUNG v. LO YUE LUM

HCMP5528/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS ACTION NO.5528 OF 2000

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J U D G M E N T

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1. This is an originating summons issued under section 6 of the Married Persons Status Ordinance, Cap.182.

Introduction

2. The plaintiff ("the wife") and the defendant ("the husband") were married about 30 years ago. On 5 September 1990, a public light bus bearing registration No.EP1670 was acquired and registered in the name of the wife. Both the wife and the husband claim to have exclusively funded the acquisition costs and mortgage payments. In March or April 2000, the wife removed the vehicle licence and the passenger service licence from the vehicle. Shortly after that, the defendant drove the vehicle away. In July 2000, the husband filed a petition in the Family Court for divorce. On 5 September 2000, the vehicle licence of the vehicle expired and on 16 September 2000, the passenger service licence also expired. On 27 October 2000, the wife issued the originating summons in these proceedings. In December 2000, the wife filed a cross-petition in the Family Court.

Directions for trial

3. The originating summons came before Yuen J on 19 January 2001. The learned judge gave leave to the husband to file and serve affidavit in opposition within 14 days and leave to the wife to file and serve affidavit in reply within 14 days thereafter, and ordered the hearing to be adjourned to not before 35 days from that date with costs of that date being in the course. By summons dated 29 April 2001, the wife asked for leave to file a further affidavit. This summons came before Yuen J on 9 May 2001. The learned judge dismissed this summons with costs, if any, to the husband; set the proceedings down for hearing with an estimated length of one day; and noted the cross-examination of the deponents.

Hearing on 31 May 2001

4. The trial of the originating summons came before me on 31 May 2001. The wife was represented by Mr Daniel Tang, instructed by Messrs H.H. Lau & Co. The husband appeared in person.

5. Mr Tang's Revised Opening and Revised Minutes of Order gave me the impression that he was asking for an interim injunction. I asked him whether he was asking for an interim injunction and whether he was proceeding with the trial of the originating summons.

6. Mr Tang first told me that he was asking for an interim injunction and not proceeding with the trial of the originating summons.

7. About 15 minutes later, he changed his mind. After discussing the matter with the representative from his instructing solicitors and the wife, he came back to tell me that he would proceed with the trial of the originating summons; and that he would not ask me to decide the question of title which would be decided by some other court. He asked me to "decide" possession. He argued that, with undertakings to be given by the wife, the husband's interests could be "compensated".

Orders sought in the originating summons

8. The reliefs sought in the originating summons, signed by Messrs H.H. Lau & Co., were:-

"1. The Defendant do deliver to the Plaintiff possession of the Public Light Bus bearing registration No.EP1670;

2. An injunction to (sic) the Defendant whether by himself or his agents or servants or whosoever on his behalf from using or driving the said Public Light Bus bearing registration No.EP1670;

3. Damages;

4. Interest;

5. Further and/or other relief; and

6. Costs."

Orders sought on 31 May 2001

9. When the hearing resumed in the afternoon, Mr Tang handed me a hand-written draft order and told me that he would be asking for an order in terms of such draft, in place of the earlier draft orders; and in place of the reliefs sought in the originating summons. His hand-written draft order reads as follows :-

"Upon the Plaintiff undertakes to put the hiring charges of the Public Light Bus bearing registration No.EP1670 or that of a replaced Public Light Bus (as the case may be) to a separate bank account, to keep a record of transaction of that bank account.

That

1. The Defendant do forthwith deliver to the Plaintiff possession of the Public Light Bus bearing registration No.EP1670.

2. The Plaintiff do have the leave of the Court to sell the said Public Light Bus. The proceeds of sale must be used to purchase a replaced Public Light Bus.

3. Alternatively, the Plaintiff do have leave of the Court to mortgage the said Public Light Bus. The mortgaged money must be used to re-condition the said Public Light Bus for the purpose of obtaining the Vehicle Licence and/or Passenger Service Licence and/or any other necessary permits, licence for the said Public Light Bus.

4. After the purchase of the replaced Public Light Bus or the re-conditioning of the said Public Light Bus (as the case may be), the Plaintiff do have the leave of the Court to hire out the said Public Light Bus or the replaced Public Light Bus (as the case may be), and collect the hiring charge of it as her source of income to support her living, the daughter of the family's living, to repay instalments of the said mortgage loan or the said purchase price (as the case may be), to pay running costs and maintenance of the said Public Light Bus or of the replaced Public Light Bus (as the case may be), to pay gas, water, electricity and management charges and other expenditures of the matrimonial property.

5. That the Defendant be restrained whether by himself or his servants or agents or otherwise, from further using or driving the said Public Light Bus until further other of the Court.

6. Costs."

Authorities cited

10. The following authorities were listed in Mr Tang's two lists of authorities :-

(1) s.52(3) & (4) of Road Traffic Ordinance, Cap.374;

(2) s.4 of Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272;

(3) s.25(1)(b)(vii) (sic) of Public Bus Services Ordinance, Cap.230;

(4) Married Persons Status Ordinance, Cap.182;

(5) Chitty on Contracts, 28th ed., Vol.1, paras.13-004-13-007;

(6) Chitty on Contracts, 28th ed., Vol.1, paras.17-007-17-009;

(7) Chitty on Contracts, 28th ed., Vol.1, paras.28-055-28-056;

(8) Atkin's Court Forms, Vol.22(1), pp.63-64;

(9) s.101C of Criminal Procedure Ordinance, Cap.221; and

(10) Chitty on Contracts, 28th ed., Vol.1, para.13-009.

Decision

11. Section 6 of the Married Persons Status Ordinance provides as follows :-

"(1) In any question between husband and wife as to the title to or possession of property the husband or the wife may apply by summons or otherwise in a summary way to a judge to determine the question.

(2) On any such application the judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over and any inquiry touching the matters in question to be made in such manner as he thinks fit.

(3) An order made under subsection (2) shall be subject to appeal in the same way as an order made by the judge in an action in the Court of First Instance would be.

(4) If either party so requests, the judge may hear the application in private."

12. As there is no question as to the title, section 6 is only applicable if there is a question between husband and wife as to possession of property and the judge is asked to determine that question.

13. What is the "property" in dispute? Mr Tang referred to it loosely as the "Public Light Bus bearing registration No.EP1670". In this context, one must not confuse the passenger service licence with the vehicle itself. The wife admitted during cross-examination that she had removed the licences, and it did not appear that Mr Tang was asking me to determine any question as to possession of the licences. On the wife's own case, the vehicle, having been on the road for about 10 years, probably had no more than scrap value. As the wife had every intention to scrap the vehicle, I am not persuaded that there is any question as to the possession of the vehicle for my determination.

14. Further, what she is asking me to do is to make an order giving her possession of the vehicle without determining the question as to possession and without determining the question as to title - hence the undertakings and leave to sell, mortgage and otherwise deal with the vehicle. Jurisdiction under section 6 is to determine possession, not to give an order for "interim" possession pending determination of the question of the right to possession in the Family Court. The wife's application is bound to fail and fails.

15. Even if I had jurisdiction, I would have refused to grant any of the orders sought in the hand-written draft in the exercise of my discretion. More than 12 months have elapsed since the vehicle was driven away in March/April 2000. The licences expired in September 2000. The present proceedings were issued three months after the husband's petition for divorce had been filed in the Family Court. Damages would be an adequate remedy for any loss or damage which the wife might suffer and the husband is a co-owner of the matrimonial home and the vehicle itself probably had no more than scrap value. Apart from her co-ownership of the matrimonial home, the wife had not been able to identify any other asset or income.

16. The wife's application is wholly misconceived and I dismiss the originating summons. The husband told me that he had not incurred any costs. He is as firm as the wife in refusing to consider any suggestion to preserve family assets pending decision in the Family Court. I make an order nisi that there be no order as to costs.