CHAN SHEE YUEN v. CHAN SHU FONG

cacv 194/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 194 of 2006

(on appeal from HCA NO. 93 of 2002)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from the judgment of Deputy High Court Judge To given on 28 April 2006.  The plaintiff’s claim was for loss of use of a piece of land (“the property”) and for an order for partition or sale of the property.  In addition, the plaintiff claimed an order for an account and an enquiry into his share of rents and other profits arising from the property.  Unfortunately, the plaintiff died shortly before the trial of the action and the action was ordered to continue with his son as the executor of his estate.  The judge ordered that the property should be sold and that a date should be fixed for consequential directions with notice of the hearing to be served on two brothers of the plaintiff and defendant namely Chan Shu Chun and Chan Shu Nam (“the two brothers”).  The judge also ordered that the plaintiff should receive the sum of $32,000 in damages.  At the conclusion of the hearing of this appeal, this court dismissed the appeal with costs, with reasons to be handed down in writing.

Background

2.  The plaintiff’s case was simple.  It was that he was the holder of a 1/5 interest in the property, the defendant was the holder of 2/5 interest in the property and the two brothers also owned 1/5 each.  It was the plaintiff’s position that he had resided in the property between 1971 and 1991 at which time he was excluded from the property by the defendant and deprived of the use of it.  In claiming the 1/5 share the plaintiff based his claim on a deed of gift dated 13 October 1981 (the “deed”).  The effect of the deed was that the defendant assigned 3/5 of the interest in the property, which was registered in his name, in the proportion of 1/5 to each of the plaintiff and the two brothers, retaining 2/5 of the interest to himself.

3.  The defence was, again, relatively simple.  It was that the defendant himself, whilst he was still under the age of 21, had earned enough money from farming, namely growing vegetables and rearing pigs and chickens on land which had been loaned to him, to purchase the property.  Since he was under age, the property was put in the father’s name.  When the father died in February 1960, the defendant succeeded to his father and had the succession to the property registered in his name.  In 1981 the plaintiff and the two brothers had requested the defendant to add their names as registered owners of the property so that they could qualify for compensation if the property were resumed by the government.  It was said that the plaintiff and the two brothers represented that they would not claim any interest in the property.  In consequence, the pleading continued, the plaintiff and the two brothers were trustees holding their interest under the deed as trustees for the defendant.  One of the other matters which the defendant sought to raise was that the father had had two other sons (“the other sons”) by his Kit Fat wife.  They had been born earlier than the plaintiff, the defendant and the two brothers.  The other sons had lived in the United States.  Whether or not they could be located is not entirely clear although it does seem that one of the other sons had died leaving two of his own sons.

The judgment below

4.  The judge considered the defendant’s evidence very carefully.  Over the course of about 10 pages he set out what that evidence was and in five of those pages proceeded to analyse his findings in respect of it.  He said that the defendant did not impress him as an honest and credible witness.  The judge held that he was evasive when giving evidence about the succession in 1960.  That is not surprising because the defendant had seemingly represented to the District Officer that he was the sole son of the father.  That clearly could not have been so on any footing.  The judge considered the contradictions in the defendant’s evidence.  He considered in some detail the probability of the defendant’s evidence being true.  He took into consideration such evidence as there was as to the father’s means.  Having done that, carefully and fairly, he came to the conclusion in paragraph 50 of the judgment:

“Having considered the totality of the evidence, I do not consider the Defendant credible.  I reject his evidence.  He has failed to discharge the burden of proving that he provided the funds for the purchase of the Property.  That would be sufficient for me to find for the Plaintiff.  But on the evidence, I am quite prepared to go further to find that it was more likely than not that the Property was purchased by the Father with his own money.”

5.  At the trial, the defendant sought an adjournment on the basis that the other sons or their representatives should be joined as parties to the proceedings.  The judge rightly rejected that argument relying, in part, on section 3(3) of the Partition Ordinance, Cap. 352 (“the Ordinance”).  In my view the judge was correct in this.  It was open to any party to bring proceedings under the Ordinance and a defendant was not entitled to object on the basis that other persons should have been joined as parties.  In my view the judge correctly rejected the defendant’s argument and also quite rightly refused an adjournment to facilitate an interlocutory appeal.

6.  The judge went on to consider what order should be made under the Ordinance and correctly assessed the situation on the basis that the four headings in section 6(1) of the Ordinance applied and that the property should be sold.  In view of the size of the property namely 13,200 sq. ft. and the layout thereof, with one house thereon, and the number of persons who had an interest in the property, the judge had no difficulty in coming to the conclusion that the only viable course was to make an order for the sale of the property with a view to a division of the proceeds.

7.  The judge then considered shortly the plaintiff’s claim in respect of loss and damage suffered since 31 December 1999.  Again he had no difficulty in holding in the plaintiff’s favour.  The defence which was run was that since the plaintiff’s claim was based on his eviction in 1991 his claim was statute barred.  As the judge pointed out, the deprivation by the defendant of the right of entry to the plaintiff was a continuing tort and since the writ was issued in January 2002 there was no difficulty in the plaintiff claiming loss and damage suffered over the two years prior to the issue of the writ.

8.  Since the plaintiff had in 2000 commenced proceedings against the defendant in the Small Claims Tribunal to recover rent received from letting the property as a coach park and the Small Claims Tribunal was thus seized of that matter, the judge declined to make an order for an account or enquiry in that respect.

This appeal

9.  On this appeal Mr Siu sought to reiterate the point which he had failed upon in the court below namely that the plaintiff’s evidence was that as of 1960 there were six claimants to the land (namely the plaintiff, the defendant, the two brothers and the other sons) and that the plaintiff’s pleading contradicted that by reason of his claim to 1/5 interest.  As the judge said, the plaintiff’s claim rests entirely upon the deed.  It is unnecessary to consider why the deed was executed if the plaintiff were content to claim simply under the deed.  The only defence to that was that the plaintiff owned his interest given to him under the deed in trust for the defendant.  That was rejected.  Thus the defence failed.  The plaintiff was therefore entitled to an order under the Ordinance for sale of the property.  The proceeds will be divided, as between the plaintiff and the defendant, on the basis that the plaintiff is entitled to 1/5 of the proceeds and the defendant is entitled to 2/5.  If the other sons seek to join in the proceedings whether at the instigation of the defendant or otherwise, they may well be entitled to make a claim against the plaintiff and the defendant for part of the proceeds.

10.  Mr Siu attempted to suggest that the judge’s assessment of the defendant’s evidence was unsafe.  In my view nothing he said came anywhere near to suggesting that the judge’s assessment of the defendant’s evidence was anything other than correct.

11.  In respect of the claim for damages Mr Siu sought to argue that the plaintiff had not established that he had been deprived of access to the property in the period after 31 December 1999.  In view of the way these proceedings have continued, the defendant’s action in renting out the property and in defending the claim on the basis that he was the sole owner of the property, such an argument is futile.  The defendant clearly kept the plaintiff out of the property and he continued to do so.  Having done so his subsequent actions were consistent in his continuing to do so.  It is not the law that once deprived of access to property to which one should be entitled a plaintiff has to seek entry on a continuous or repetitive basis, if, in the circumstances, that would be to no avail.

12.  In my view there was no merit in this appeal and it fell to be dismissed.

Hon Le Pichon JA:

13.  I agree.

Hon Sakhrani J:

14.  I also agree.