LING TO TSZ MANAGEMENT LTD v. TANG CHAK (or CHOK) HING TSO AND OTHERS

HCMP 959/2020

[2021] HKCFI 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 959 OF 2020

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DECISION

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1.  This is the adjourned hearing of the Originating Summons dated 3 July 2020 taken out by the plaintiff (“P”) for an order for partition of the Remaining Portion of Lot No 1363 in DD 125 in Yuen Long, New Territories (the “Land”).

2.  The 1^st defendant is a tso (the “Tso”).  The 2^nd, 3^rd and 4^th defendants (“D2” to “D4”) are its managers. 

3.  Originally there was some uncertainties as to whether Poon Shui Chun is also a manager of the Tso.  That has been clarified by the Yuen Long District Office.  D2 to D4 are all the incumbent managers of the Tso.

4.  P and the Tso are co‑owners in equal shares of the Land as tenants‑in‑common.

5.  I am satisfied that service on all parties, and the Director of Lands, has been validly effected.  In particular, substituted service has been effected on D4.

6.  I have considered the affirmations of Poon Tak Chun Paul of 3 July 2020 and Lam Wai Yee of 12 January 2021 filed in support of the Originating Summons.

7.  I have considered sections 2, 4 and 6 of the Partition Ordinance.

8.  I have considered Wong Chun Kei v Poon Vai Chung [2007] 1 HKLRD 825 cited to me, wherein Mr Recorder Fok SC (as he then was) observed at paragraphs 18 and 19 that a co‑owner has a basic right to rid himself of the shackles of co‑ownership and, if he has no other remedy, ask for an order for partition or sale.

9.  I have considered the surveyor report of 8 June 2020 prepared by Mr C W Wong.  I have also considered his further advice clarifying the lot number of the Land.

10.  I have considered the correspondence between P, D2 and D3.  D2 and D3 have indicated that they have no objection to the application.

11.  Having taken into the following factors, I exercise my discretion in favour of making the order for partition sought:

(a)  P as a co‑owner has a basic right to rid itself of the shackles of co‑ownership;

(b)  The Tso has through its existing managers indicated its consent;

(c)  It is practicable to make an order for partition;

(d)  According to the expert, the 2 proposed new lots are of similar site configuration, both enjoy unobstructed access to and from the public road, and are of equal value;

(e)  There is no suggestion that the proposed partition will not be beneficial to all the co‑owners; and

(f)  There are no comments from the Director of Lands.

12.  In all the circumstances, I grant §(1) of the Originating Summons.

13.  I make no order as to costs.