WONG YUK CHUN KITTY v. WONG YUK KING

DCMP 2177/2019

[2019] HKDC 1323

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2177 OF 2019

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REASONS FOR DECISION

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1.  This is an application by way of an ex parte originating summons for a declaration that Leung Cheung Shi (being the registered trustee holding the Land for Leung Tso Lun Tso) is presumed dead.

2.  On 3 October 2019, I dismissed the application after hearing Ms Mak for the applicants.  These are my reasons.

Background

3.  The applicants, both in their 50s, are two of the four daughters of their parents.  Their father, Wong Cheung (黃章) alias Leung Cheung (梁章), died on 8 February 1973 and their mother, Leung Hang Kin (梁杏見), passed away recently on 22 May 2019.  Their eldest sister, Wong Yuk Wan (黃玉雲), also passed away sometime in 2014, and their youngest sister is Wong Yuk Ling (黃玉玲).

4.  The applicants learned from their mother during her lifetime that:-

(a)  Their father had been adopted by Leung Tso Lun (梁祖粦) and Leung Cheung Shi (梁張氏) and given the name Leung Cheung.

(b)  Leung Tso Lun used to own a piece of land in New Territories North, known as Lung Yeuk Tau San Uk Lot No 13 in DD 83 (“the Land”).

(c)  After the death of Leung Tso Lun, Leung Cheung Shi (i) registered the Land in the name of Leung Tso Lun Tso with herself as the trustee; [1] and (ii) adopted the applicants’ father as the adopted son for her deceased husband posthumously and for herself, in accordance with Chinese custom.

(d)  After the death of Leung Cheung Shi, the applicants’ father got married and resumed the use of his former name, Wong Cheung.

5.  The applicants, who were brought up in their family residence at the Land, have never seen or heard from Leung Cheung Shi.

The application

6.  Whilst their mother was still alive, the applicants obtained an opinion from an expert in Chinese law and custom (Professor Wejen Chang) who opined that in accordance with Chinese custom prevailing in the New Territories:[2]

(a)  the status of the applicants’ father[3] as the adopted son of Leung Tso Lun should be recognised;

(b)  after the death of Leung Tso Lun, the applicants’ father should be entitled to succeed to his estate;

(c)  after the death of the applicants’ father, his three surviving daughters should be entitled to succeed to his estate;[4] and

(d)  the applicants and their youngest sister are the beneficiaries of Leung Tso Lun Tso and are entitled to be appointed as manager (司理) of the tso.

7.  When the applicants applied to the District Officer, North under section 15 of the New Territories Ordinance, Cap 97 (“NTO”) for approval of their appointment as manager of Leung Tso Lun Tso, they were asked to produce proof of death of Leung Cheung Shi.

8.  The applicants caused a Chinese advertisement to be published in Oriental Daily News, a Chinese newspaper widely circulated in Hong Kong, on 14 June 2019 asking for information as to the whereabouts of Leung Cheung Shi.  No one has come forward in response to the advertisement.

9.  They also conducted a search at the Births and Deaths Registry and were informed that there is no record of death of Leung Cheung Shi between the periods 1 January 1950 to 31 December 1954 and 1 January 1955 to 31 January 1959. 

10.  They therefore commenced this action to seek a declaration that Leung Cheung Shi is presumed dead.

11.  Ms Mak prayed in aid a passage from the judgment of Godfrey J (as he then was) in Re the Estate of Yu Leung Fong [1991] 1 HKC 494 for the proposition that in appropriate cases when there is a genuine need and a meritorious claim, the court ought to be ready to grant declaratory relief that the propositus is presumed dead.

12.  She cited two judgments of the Court of First Instance (“CFI”) in support of her contention, namely, In the Matter of Li Shiu Luen, unreported, HCMP 895/1998, 17 March 1998, and In the Matter of the Estate of Chan Ming [2018] HKCFI 1971. 

13.  She submitted that this is a “very special case” (as envisaged by Godfrey J) as the applicants have no alternative means to resolve their plight.

The jurisdiction problem

14.  In my view, the application does not fall within the jurisdiction of the District Court (“DC”).

15.  Under section 3 of the District Court Ordinance, Cap 336 (“DCO”), the DC has civil and criminal jurisdiction and powers as are conferred upon it by the DCO and by any other enactment.

16.  In pursuance of Practice Direction 27, the applicants have identified sections 36 and 48 of the DCO as the jurisdictional basis of their application.  They argue that there is “a downright title problem” in this case which falls within the jurisdiction of the DC as the rateable value of the Land does not exceed $320,000. [5]

17.  Section 36 is in these terms:-

“The Court has jurisdiction to hear and determine any action which would otherwise be within the jurisdiction of the Court and in which the title to an interest in and comes into question if—

(a)  for an easement or licence, the rateable value, determined in accordance with the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the land, over which the easement or licence is claimed, does not exceed $320,000; or

(b)  for any other case, the rateable value, determined in accordance with the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the land, does not exceed $320,000.”

18.  The Court of Appeal has recently confirmed in Ng Cho Chu Judy v Chan Wing Hung [2017] 4 HKLRD 396 that section 36 is a jurisdiction-conferring provision and that the DC has jurisdiction to hear and determine “pure” title cases[6] within the monetary limit of the DC.

19.  Although the Land may form the backdrop of the application, this action is not concerned with the title to any interest in the Land.  Rather, the issue is whether the registered manager of the tso owner of the Land may be presumed dead.  No one has ever questioned the tso’s ownership of the Land.

20.  Moving on, section 48 provides that:-

“(1)  The Court has the same power as the Court of First Instance in any proceedings before it—

(a)  to grant the relief, redress, or remedy or combination of remedies, either absolute or conditional; and

(b)  subject to section 46, to give effect to every ground of defence or counterclaim, equitable or legal,

which ought to be granted or given.

(2)  The Court has to administer law and equity so that, if there is a conflict or variance between the rules of equity and the rules of the common law referring to the same matter, the rules of equity prevail.

(3)  The Court has to give the same effect as in the past—

(a)  to equitable estates, titles, rights, relieves, defences and counterclaims, and to equitable duties and liabilities; and

(b)  subject to paragraph (a), to legal claims and demands and estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by an Ordinance.

(4)  The Court has to exercise its jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and multiplicity of legal proceedings on any of those matters is avoided.

(5)  The Court may stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.”

21.  Ms Mak is invoking subsection (1). 

22.  Deputy Judge Winnie Tsui (as Judge Tsui then was) observed in the first instance decision of Ng Cho Chu Judy that section 48(1) is one of the provisions in the DCO that deal with the ancillary jurisdiction of the court “once a case is within the jurisdiction of the District Court because it is of the ‘right’ type and the amount involved is below the monetary limit”.[7] In other words, that section is not a jurisdiction-conferring provision.

23.  In any event, section 48(1) in terms only gives the DC the same power as the CFI in granting relief and remedy.  But it has been doubted whether the CFI has jurisdiction to entertain similar applications.

24.  In Liu Yun Hop v Fung Kai Public School [2017] 1 HKLRD 1009, the plaintiffs were tenants in common of a piece of land.  Proceedings were brought in the CFI against the defendant for trespass to the land.  According to the 1st plaintiff, the 2nd plaintiff had passed away and no personal representative had been appointed to represent his estate.  The 1st plaintiff therefore applied to the court for a declaration that the 2nd plaintiff was either dead or presumed to be dead so that he might proceed with the action. 

25.  At paras 12-19 of the judgment, Anderson Chow J discussed whether the CFI should entertain the application:-

“12.  On the evidence before the Court, it is, I believe, a fair inference to draw that the 2nd plaintiff must have passed away.

13.  It is, however, a different matter whether the Court can, or should, grant a declaration of death or presumed death of the 2nd plaintiff in these proceedings.  The circumstances in which the Court might properly grant a declaration or decree of death or presumed death of a person were explained by Godfrey J (as he then was) in Re the Estate of Yu Leung Fong [1991] 1 HKC 494:

‘1. … People disappear; maybe as a result of a tragedy at sea, or in the air; maybe for other reasons, or for reasons unknown. It may well be impossible, at a material moment, to say with certainty of a particular person that he is in fact dead. As time goes by, and he is neither seen nor heard of, the likelihood of his having died will become more and more a moral certainty …

2.  If the propositus has disappeared, how is the law to deal with all these matters?  The answer depends on the particular problem to be solved.

3.  If the problem is matrimonial, statute provides that the spouse of the propositus may apply to the court for a decree of presumption of death and dissolution of the marriage: see s. 26 of the Matrimonial Clauses Ordinance, Cap. 179 (under this section, 7 years’ absence is treated as prima facie evidence of death).

4.  If the problem concerns the assets of the propositus, so that it is necessary for representation to be granted to his estate, any creditor or beneficiary may apply to the court for leave to swear to the death of the propositus.  This procedure is available when it appears likely that the propositus is dead but the death cannot be proved by certificate in the ordinary way: see r. 52 of the Non-Contentious Probate Rules, made under the Probate and Administration Ordinance (Cap. 10). If the court is satisfied, on the evidence, that the propositus has died, leave will be given to the applicant to swear to the death in the oath leading to the grant; and the applicant will be granted representation to the estate of the propositus on that basis.

5.  If the problem concerns the interest, or possible interest, of the propositus in a trust fund, so that the distribution of the fund is held up by the uncertainty as to whether the propositus is alive or dead, the trustees, or a beneficiary, may apply to the court for an order that the trustees are to be at liberty to distribute the fund on the footing that the propositus is dead (this is known as a “Benjamin” Order): see Re Benjamin [1902] 1 Ch 723.

6.  If the problem arises in other proceedings in which a party has to prove the death of the propositus, then, where there is no acceptable affirmative evidence that the propositus was alive at some time during a continuous period of 7 years or more and it is proved (1) that there are persons who would be likely to have heard of him over that period; (2) that those persons have not heard of him; and (3) that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that the propositus died some time within that period, and the party upon whom the burden falls of proving the death of the propositus may rely on that presumption: see Prudential Assurance Company v Edmonds (1877) 2 App Cas 487 …

7.  So, depending on the nature of the problem, there are a number of different ways in which the court can help resolve difficulties caused by uncertainty about the death, or the date of death, of a particular person.  There is, however, no inherent jurisdiction in the court to entertain proceedings ex parte in which the applicant claims a declaration that a particular person is to be presumed to be dead.

8.  It is the erroneous belief that such a jurisdiction does exist which has led to the institution of the present proceedings…’

…

14.  In that case, a property was held by the applicant and her father as joint tenants.  The father worked as a waiter on board a vessel which caught fire while at sea on 29 August 1976.  He fell into the sea but his body was never found, and he had not been seen or heard of since.  In 1991, the applicant instituted proceedings, by way of an ex parte originating summons, seeking a declaration that the father “was presumed dead on 29 August 1976”, in order to “regularize her position as to the property”.  The learned judge held that the court had no jurisdiction to entertain those proceedings, and therefore struck them out.  In the course of his judgment, the learned judge stated that “[i]t is not the function of the court to settle the doubts of owners of property about the state of their title, in the absence of any other party interested in the matter.”

15.  In Wang Din Shin v Nana Kung alias Nina T H Wang [1999] 4 HKC 263, in the context of a probate action to propound a will in solemn form, Godfrey JA reiterated that no declaration that a missing person was dead could legitimately be made.

16.  The present case is factually distinguishable from Re Estate of Yu Leung Fong …  It is also distinguishable from Wang Din Shin …   It may also be argued that when Godfrey J said that the Court had no “jurisdiction” to make a declaration of death or presumed death, the learned judge was not using that word in the strict sense that the Court had no power to make the declaration, but simply that the Court would not exercise such power as a matter of its settled practice …

17.  I am by no means satisfied that the Court has jurisdiction (in the strict sense) to make a declaration that the 2nd plaintiff is dead or is to be presumed dead in the present ex parte application. It is, however, not necessary for me to reach a final view on this issue.  Nor would it be appropriate for me to do so in view of the fact I have not heard arguments from both sides.

18.  Even if the Court has jurisdiction in that strict sense, I do not consider it appropriate to grant the declaration sought. In this regard, it may be noted that a declaration normally takes the form of a statement of some legal right or obligation, not a statement of fact (such as that a named person has passed away).  Where the death of a named person is a fact relevant to the resolution of any cause or matter, generally that fact has to be proved by evidence, and the Court would make a finding (sometimes with the help of the presumption of death) on the issue which may then lead to its conclusion on the cause or matter in its judgment.”

26.  It may be noted that the part of the judgment of Godfrey J relied on by Ms Mak is towards the end of the judgment and not included in the above quotation. It is in these terms:-

“But, as I have already pointed out, the court has no jurisdiction to entertain these proceedings. The role of the court in civil proceedings is to resolve differences between opposing parties. If there is no present dispute between parties as to their legal rights, there is nothing for the court to resolve. Except in very special cases, the court will not resolve academic, hypothetical or future questions. Certainly, it will not do so if, not only has the issue not yet arisen, but the parties in disagreement over the issue are merely prospective. A person claiming a declaration must be able to secure someone presently existing who has a true interest to oppose the declaration sought. Proceedings in which an owner of property attempts ex parte to obtain a declaration in order to arm himself against some difficulty which may arise in the future are proceedings which fundamentally misconceive the function of the court in civil proceedings. It is not the function of the court to settle the doubts of owners of property about the state of their title, in the absence of any other party interested in the matter.” (emphasis added)

27.  Reading the above in the context of the whole judgment, I do not believe Godfrey J was there saying that in “very special cases” the court may entertain ex parte applications for a declaration that the propositus is presumed dead.  That would be contrary to what the learned judge had said earlier (as quoted in Liu Yun Hop) and the starting premises of the above quotation.  In my view, the learned judge was merely lamenting that the application before him was “academic, hypothetical or future” and that he should not entertain it on an ex parte basis even if the court had jurisdiction. As we have seen, the same sentiment was expressed by Anderson Chow J in Liu Yun Hop at para 18.

28.  In neither of the CFI judgments cited by Ms Mak had Re the Estate of Yu Leung Fong been referred to.

29.  On the other hand, Anderson Chow J applied Re the Estate of Yu Leung Fong and concluded in Liu Yun Hop that he could not be satisfied that the CFI had jurisdiction to make the declaration sought on an ex parte application. 

30.  In a similar vein, Carlye Chu J commented in In the Matter of the Estate of Fong Iong, deceased, unreported, HCMP6014/2001, 7 December 2001 at para 6 that:-

“I am also unable to see how the inherent jurisdiction of the court can be invoked to entertain ex parte proceedings for the determination on whether the applicants are entitled to share in the estate of the Deceased. As Godfrey J (as he then was) observed in In re the estate of Yu Leung Fong (unreported) HCMP1130 of 1991 (albeit on another subject matter), depending on the nature of the problem, there are a number of different ways in which the court can resolve difficulties of the applicants. … There is, however, no inherent jurisdiction to hear ex parte proceedings of the kind herein.”

31.  There are thus good authorities that cast doubt on the jurisdiction of the CFI in entertaining ex parte applications to determine whether the propositus is dead or presumed dead.  The applicants may not therefore invoke section 48(1) of the DCO to ground their application.

Disposition & Postscript

32.  Despite the efforts of Ms Mak, I am not persuaded that the DC has jurisdiction to entertain this ex parte application.  The action is therefore dismissed.

33.  As discussed with Ms Mak at the hearing, it appears to me that the real predicament of the applicants is not so much about whether Leung Cheung Shi is dead but the inability of the current registered manager of the tso to discharge her duties under section 15 of the NTO in relation to the Land.  Her long absence is a fact that can be proved by the applicants.  Insofar as it is necessary, Professor Chang’s opinion contains other useful information:-

(a)  During the lifetime of the applicants’ father, the applicants’ family attended the grave(s) of Leung Tso Lun and Leung Cheung Shi to pay their respect. (at para (2)9)

(b)  After the grave of Leung Cheung Shi had been removed by villagers some 20 odd years ago, the applicants’ mother subscribed for a memorial tablet in Wun Chuen Sin Kwoon (雲泉仙館) to commemorate Leung Cheung Shi. (at para (2)10)

All these should be within the personal knowledge of the applicants.  There may even be documentary evidence on the subscription and maintenance of the memorial tablet.  Thus, it may not be necessary after all for the applicants to procure a declaration from the court in order to convince the District Officer to replace a non-functioning manager.