LAU YIN CHEUK v. LAU TO AND ANOTHER

HCA 965/2020

[2025] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 965 OF 2020

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BETWEEN

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REASONS FOR JUDGMENT

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1.  This is the application of Lau Yin Cheuk (婁彥卓) (the “Plaintiff”) by summons dated 25 March 2025 to enter default judgment under Order 19 rule 7 against Lau To (婁濤) (“D1”) and Dong Jie (董潔) (“D2”) (collectively, the “Defendants”).

Relevant background

2.  The Plaintiff (who is 91) is D1’s father. D1’s mother (Ms Lau) and D1 emigrated from Hong Kong to Canada when D1 was young while the Plaintiff remained working in Hong Kong. In 2007, the Plaintiff and Ms Lau divorced.

3.  When the Plaintiff retired in 2008, he sold his only property in Hong Kong and moved to Shenzhen. While living there, he employed Ms Wu as a domestic helper and caregiver.

4.  In 2011, after more than a decade, D1 visited the Plaintiff in Shenzhen. He had lost financial support from his mother and hoped to reunite with the Plaintiff. The Plaintiff encouraged him to return to Hong Kong to pursue his studies and career opportunities.

5.  At the end of 2013, D1 visited the Plaintiff, informed him of D1’s decision to pursue his studies in Hong Kong, and requested financial support from the Plaintiff. He promised the Plaintiff that he would care for him for the rest of his life.

6.  With the Plaintiff’s financial support, D1 enrolled at Lingnan University in Hong Kong and lived with the Plaintiff in Shenzhen. During this period, D1 met Ms Wu’s daughter, D2. They married in May 2014 in Hong Kong. After the marriage, the Defendants lived with the Plaintiff in Shenzhen.

7.  Since the Plaintiff needed to travel frequently to Hong Kong for medical treatment and D1 needed to attend school almost daily and seek employment there, D1 persuaded the Plaintiff to relocate to Hong Kong. With the Plaintiff’s consent, D1 searched for a suitable property for the family to live together and provide mutual care.

8.  Relying on the promises and guarantees of the Defendants and Ms Wu, the Plaintiff agreed to sell his only property in Shenzhen and purchase a property in Hong Kong. Before the property was purchased (to be held in the joint names of the Defendants), the Plaintiff expressly told the Defendants that this was not a gift to them as this would be the Plaintiff’s only asset and the Defendants would hold the property on trust for him.

9.  On that basis, Unit A, 21^st floor, Tower Park Signature, 68 Kung Um Road, Yuen Long and car park number 52 (collectively, the “Properties”) were purchased in the joint names of the Defendants on trust for the Plaintiff who is the beneficial owner. The Plaintiff provided the purchase price of $9,495,000 and paid for all expenses associated with that purchase.

10.  After the purchase, the Plaintiff, the Defendants and Ms Wu all lived together at the Properties.

11.  Since the acquisition of the Properties and until now, the Plaintiff has paid all expenses and outgoings associated with the Properties including management fees, government rates, electricity, water charges and utilities.

12.  In early 2017, the marriage between D1 and D2 deteriorated. D2 then left Hong Kong together with Ms Wu and moved back Shenzhen. In April 2017, D1 returned to Canada and took the title deeds of the Properties with him. D1 explained to the Plaintiff that he did so to prevent D2 from taking them.

13.  At the Plaintiff’s request, D1 agreed to return the title deeds to the Plaintiff and expressed his willingness to transfer his legal title to the Properties to the Plaintiff.

14.  Despite the Plaintiff’s repeated requests, D2 continues to refuse to transfer the title of the Properties back to the Plaintiff.

Procedural history

15.  The Plaintiff issued the writ of summons on 15 June 2020 against the Defendants seeking a declaration that the Properties (described in §2 of the Summons) held in the joint names of the Defendants are held in trust for the Plaintiff and an order that the Defendants transfer the Property to the Plaintiff.

16.  The Plaintiff’s solicitors duly served the writ on D1’s solicitors on 18 June 2020 who, by letters dated 19 May 2023 and 7 March 2025, informed the Plaintiff’s solicitors that D1 does not object to the Plaintiff’s claim provided the Plaintiff does not seek costs against D1. D1 did not file any acknowledgement of service.

17.  The validity of the Writ was extended three times[1] since its issuance because of difficulties encountered in serving D2. D2 who resides in Shenzhen has been refusing to accept service since 2020.

18.  On 11 September 2024, Master D To made an order dispensing with personal service of the Concurrent Writ on D2: on the evidence there were attempts by D2 to evade service; and D2 had knowledge of the proceedings upon receipt of the writ of summons served on 9 November 2023 through a WeChat communication with the Plaintiff.

Disposition

19.  It is well-established that the Court cannot receive any evidence in applications for a default judgment pursuant to Order 19 rule 7 but only considers whether to give judgment based on the pleadings alone.

20.  While it is not the normal practice for the Court to grant a declaration without going to trial, that is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied: see Hong Kong Civil Procedure 2025 at §19/7/20.

21.  In deciding whether to exercise its discretion to grant declaratory relief, the Court will scrutinize the application with care since the application is uncontested. It will consider whether the applicant has established a strong case for proprietary relief based on the pleadings.

22.  Declaratory relief based on common intention constructive trust by default judgment has previously been granted: see for example, Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933 and Cheung Sai Long v Cheung Sai Ho [2020] HKCFI 2511.

23.  In the present case, the Plaintiff seeks

(1) a declaration that he is the sole owner of the Properties;

(2) a vesting order pursuant to section 45 (g) of the Trustee Ordinance Cap 29; and

(3) an order that D2 be notified of the Order to be made by mode of electronic communication of WeChat.

24.  Based on the facts as pleaded, I have no hesitation in concluding that this is an appropriate case for the Court to exercise its discretion to grant the relief sought in §§1-3 of the summons having regard to the following matters:

(a) the cost of acquiring the Properties and associated expenses were funded entirely by the Plaintiff, it being the common intention of the parties that he is the sole beneficial owner of the Properties;

(b) the 2 letters from D1’s solicitors make it abundantly clear that D1 does not oppose the Plaintiff’s application;

(c) service of the writ on D2 was effected by WeChat communication and personal service was dispensed with by the order of 11 September 2024. D2 has not filed any acknowledgement of service.

25.  Mr Billy Poon, counsel for the Plaintiff, confirmed that the Plaintiff agrees that as against D1, there be no order as to costs.

26.  In those circumstances, I order that the costs of the summons, with certificate for counsel, be paid by D2 to the Plaintiff, such costs to be summarily assessed and payable forthwith.

27.  I further direct that (i) the Plaintiff’s statement of costs be served on D2 within 14 days through a WeChat communication; (ii) D2 do have leave to file her list of objections (if any) within 14 days thereafter.