TSUI MING SIN (FORMERLY KNOWN AS SHE MING SIN) v. TSUI CHI PING AND ANOTHER

HCA 2550/2014

ACTION NO 2550 OF 2014

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REASONS FOR DECISION
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Decision on 20 January 2016

1.  On 26 November 2015, Wong Fung & Co issued on behalf of the plaintiff a “SUMMONS” to be heard “in Open Court” (“the Summons”).

2.  On 20 January 2016, I dismissed the application and said reasons for my decision would be handed down in due course which I now do. 

Introduction

3.  On 16 December 2014, the plaintiff issued the writ in this action against:

(1) “THE ESTATE OF TSUI CHI PING (徐志平), DECEASED” as 1^st defendant; and

(2) “CHAN HAU SAU (陳巧秀)” as 2^nd defendant;

claiming adverse possession of:

(a) Section A of Lot No 4733 (“Lot 4733A”) in Demarcation District No 116; and

(b) Lot No 4734 (“Lot 4734”) in Demarcation District No 116;

(collectively “the Lots”).

4.  The Lots were stated on the face of the writ as the address of both defendants.

5.  On 6 March 2015, the plaintiff amended the writ by substituting “TSUI CHI PING (徐志平)”, in place of “THE ESTATE OF TSUI CHI PING (徐志平), DECEASED”, as the 1^st defendant.

6.  The Lots were stated on the face of the amended writ as the address of both defendants.

7.  On 6 March 2015, the plaintiff also amended the Statement of Claim.

8.  On 26 November 2015, the plaintiff issued the “Summons” for default judgment for the declarations claimed in the Amended Statement of Claim.  The application is said to be made under:

“Order 19, rule 7 of RHC

Inherent Jurisdiction.”

Application by Summons to be heard in open court

9.  The Summons was a summons.  It was not an originating summons.  Nor was it a notice of motion.  The Summons may show lack of understanding of the difference between a summons and a motion.  Be that as it may, I heard the application in open court.

Affidavit evidence in support of the application

10.  The plaintiff sought to rely on affidavit evidence in support of the application.

11.  Affidavit evidence is plainly not admissible in an application under Order 19, rule 7(1) which provides that:

“… on the hearing of the application, the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”

Citing Smith v Buchan (1888) 58 LT 710 and Young v Thomas [1892] 2 Ch 135, the learned editors of Hong Kong Civil Procedure 2016 state at paragraph 19/7/11 that:

“The court cannot receive any evidence in cases hereunder, but must give judgment according to the pleadings alone.”

The case as pleaded

12.  The Amended Statement of Claim was drafted by Wong Fung & Co and pleads, among others, that:

(1) The plaintiff was a grandchild of the 1^st defendant, see paragraphs 2 and 5:

“(2) On an unknown date, the 1^st Defendant married a woman in Indonesia. Out of the wedlock, the plaintiff’s father, She Min Chung (徐民中) was given birth on 26^th June 1939.

…

(5) In or about 1964, She Min Chung married Wai Tip Ha in mainland China, out of the wedlock, their daughter was given birth on 8^th April 1966 and the Plaintiff was given birth on 30^th September 1969.”

(2) On 14 December 1959, the 1^st and 2^nd defendants acquired Lot 4733A from Li Suet Heung (paragraph 4).

(3) On 14 December 1959, the 1^st and 2^nd defendants acquired Lot 4734 from Tsang Hon Ying (paragraph 4).

(4) Without alleging the time when, the plaintiff pleads in paragraph 4 that:

“Subsequently, a house was built on LOT 4733A”

(5) Paragraph 6 pleads what the plaintiff’s father had been told by his aunt.  It does not plead the truth of what the plaintiff’s father had been told.  It reads as follows:

“In or about 1971, She Min Chung was told by his aunt that the 1^st Defendant had returned to Hong Kong in about 1959 for the purpose of settling down in Hong Kong. She Min Chung was told that the 1^st Defendant purchased the said Lots but the said Lots and the House were subsequently abandoned.”

(6) Paragraph 8 pleads as follows:

“In or about 1976, She Min Chung and his family members came to Hong Kong by way of One‑Way Permit. They located the said Lots and the House which were abandoned, She Min Chung and his family members decided to take and own the said Lots and the House and without the permission and consent from either the 1^st Defendant and/or any other legal owner of the said Lots and the House, they resided in the House and started to cultivate on the rest [sic] part of the said Lots.”

(7) The pleading pleads other acts as acts of occupation and exclusion of others.

Grant of declaration without trial

13.  The normal practice of the court is stated in paragraph 19/7/20 of the Supreme Court Practice 2016 as follows:

“It is not the normal practice of the court to make a declaration without a trial … (Wallerstein v Moir (No. 1) [1974] 1 WLR 991); Top One International (China) Property Group Company Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606 [83] and [85], per Fok J (as he then was). However this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied (Lam Shing Shou v Lam Hon Man [2002] 1 HKLRD D3; Lai Wai Kuen v Wong Shou Kwong (unrep. HCA 3424/2003, 12 November, 2004).”

14.  In Lam Shing Shou case, Hon Chu J (as she then was) stated the principles in paragraph 13 as follows:

“In Patten v. Burke Publishing Co. Ltd [1991] 1 WLR 541, Millett J observed, at p.544A, that in the absence of a judgment reached after hearing evidence, a declaration can be based only on unproved allegations and that the Court ought not to declare as fact that which might not have proved to be such had facts been investigated. Millett J, however, went on to point out that the rule referred to in Wallersteiner v. Moir, supra, is only a rule of practice. Although it should normally be followed, it should only be followed when the plaintiff can obtain the fullest justice to which he is entitled without the declaration he seeks.”

15.  In Top One, Hon Fok J (as he then was) stated the principles at paragraph 83 as follows:

“83. In my view, notwithstanding Mr Lam’s persuasive submissions, it would not be appropriate to grant the declaratory relief sought by way of default judgment. In the absence of a judgment reached after hearing evidence, a declaration could be based only on unproved allegations and the court ought not to declare as fact that which might not have proved to be such, had the facts been investigated: Wallersteiner v Moir [1974] 1 WLR 991 per Buckley LJ at p.1029 and Patten v Burke Publishing Co. Ltd [1991] 1 WLR 541 per Millett J (as he then was) at p.544A.”

16.  Bearing in mind that the normal practice should be followed and that some authorities are fact‑sensitive, I turn to consider the Amended Statement of Claim in this case.

17.  As the plaintiff is a grandchild of the 1^st defendant, any allegation of adverse possession by the plaintiff must be examined and considered with care.

18.  The defendants are co‑owners of what may be adjoining lots.  A house was constructed on one of the lots on a date not pleaded in the Amended Statement of Claim.  In the absence of a material change in circumstances (and none is alleged), the probabilities are that the defendants would continue to hold the Lots and the House.  If the defendants had at some stage decided not to keep the Lots and the House, the probabilities are that they would try to sell them.  They are assets, not valueless, and there is no allegation that the defendants were so rich that they would simply “abandon” them.

19.  Further, the allegation of abandonment is problematic.  Paragraph 6 does not allege that the defendants had abandoned them.  It merely alleges what the plaintiff’s father had been told by his aunt.  The allegation that the aunt said “the 1^st Defendant purchased the said Lots” is contradicted by the objective fact that the 1^st and 2^nd defendants acquired the Lots as co‑owners. 

20.  There was no mention of the intention of the 2^nd defendant. Like the 1^st defendant, the 2^nd defendant was a co‑owner.  The active voice was replaced by the passive voice by alleging that “the said Lots and the House were subsequently abandoned”.

21.  By paragraph 8 the hearsay allegation in paragraph 6 was elevated to the factual allegation of “the said Lots and the House were abandoned”.  This assertion of abandonment is conspicuous in the absence of particulars.

22.  The allegation of abandonment by the 1^st defendant and the allegation of adverse possession by the plaintiff are contradicted by the plaintiff giving the address of the Lots as the address of the defendants in the writ and in the amended writ.

23.  Occupation by the plaintiff without intervention is equivocal in view of the relationship between the 1^st defendant on the one hand and the plaintiff and the plaintiff’s father on the other.

24.  All in all, this is a case which the court ought not to declare as fact that which might not have proved to be such, had the facts been investigated.

Disposition

25.  I declined to grant declaratory judgment and dismissed the application.