CHEUNG SIU LING, the intended personal representative of the estate of Cheung Yin Kwong, deceased AND OTHERS v. TSE YUK LIN AND ANOTHER

DCCJ 759/2021

[2021] HKDC 1290

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 759 OF 2021

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DECISION

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1.  At the beginning of the hearing, there were five applications before the Court:-

(a)  the plaintiffs’ (“P1”, “P2” and “P3” respectively) summons for interlocutory injunctive relief against the defendants (“D1” and “D2” respectively) (“Injunction Summons”);

(b)  the plaintiffs’ summons for relief from the sanction imposed on 16 September 2021 (“Time Summons”);

(c)  the plaintiffs’ summons to amend the writ endorsed with a statement of claim (“the SOC”) (“SOC Amendment Summons”);

(d)  the plaintiffs’ summons to amend the Injunction Summons (“Injunction Amendment Summons”); and

(e)  the plaintiffs’ summons in relation to the representation of P1 and P2 (“Representation Summons”).

2.  There was agreement on the Time Summons and the SOC Amendment Summons and I made an order in terms of the corresponding consent summonses at the hearing.

3.  The defendants’ counsel (Ms Elaine Liu) informed me that the defendants were also agreeable to the Injunction Amendment Summons.  I therefore made an order in terms of paras 2-3 of the summons and granted costs of the application to the defendants in any event.

4.  The parties proceeded with argument on the Injunction Summons as amended and the Representation Summons.

Essential Background

5.  The parties own land in Yuen Long.  On a very crude basis, the lots of land belonging to the plaintiffs’ camp and the defendants’ camp are respectively coloured yellow and green on the plan annexed hereto (“the Plan”).  For ease of reference, these lots of land are marked A to I respectively.

6.  By this action, the plaintiffs claim two rights of way over the defendants’ land.  The present argument is concerned with the one over Lots A and B comprising, according to the statement of claim (“the SOC”):

(a)  “the Front Path” – coloured indigo on the Plan; and

(b)  “the Verge Space” on either side of the Front Path – cross-hatched in black.

7.  For present purposes, it may be noted that:-

(a)  Cheung Yin Kwong, deceased, P2 and P3 are brothers.  They jointly own Lot D.

(b)  Their father, Cheung Lun, deceased, is the owner of Lot C which abuts Lot D.

(c)  D1 is the owner of Lots A and B which abut Lot C.  D2 is D1’s husband.

(d)  D2’s father (Cheung Tung, deceased) and Cheung Lun, deceased, were brothers.  That makes Cheung Yin Kwong, deceased, P2 and P3 on the one hand and D2 on the other hand cousins (堂兄弟). Despite their blood relation, the two sides have not been close due to conflicts that have spanned two generations.

The Injunction Summons

8.  It is the plaintiffs’ case that they have been using the Front Path and the Verge Space for more than 60 years.  Over the years, they have acquired a right of way over Lots A and B.  Recently, the defendants have substantially interfered with their right of way:-

(a)  In September / October 2020, the defendants erected mesh wire fences along the boundary of Lot B and Lot C (“the Inner Fence”) and on part of the boundary of Lot A with abutting land (“the Outer Fence”), and installed a gate on the Outer Fence as depicted in the plan at Annex 3 of the SOC.[1] As a result, the Front Path and the Verge Space was blocked and the plaintiffs could not gain access to their houses on Lots C and D through Lots A and B. 

(b)  After intervention by the police and the plaintiffs’ solicitors, a gap of around 3-feet wide was left open from the Inner Fence for the plaintiffs to ingress to and egress from their land (“the Narrow Gap”).[2] Notwithstanding the Narrow Gap, vehicular access by cartwheels remained impossible.

(c)  In December 2020 / January 2021, the defendants erected metal poles along the Inner Fence and the Outer Fence, placed iron sheets next to the Inner Fence, scattered bricks and debris around the Front Path and the Verge Space, and removed the concrete of the Verge Space.  Significantly, the New Gate was once locked without notice to the plaintiffs rendering it impossible for the plaintiffs to access their land.

(d)  The situation as at 28 January 2021 is depicted in the plan at p 283 of Bundle B1[3] and captured by the photograph at p 285 of Bundle B1.

9.  In February 2021, the plaintiffs commenced this action against the defendants and issued the Injunction Summons for interlocutory relief to (i) restrain the defendants from placing any obstruction on the Front Path and the Verge Space (para 1(1)); (ii) prohibit the defendants from obstructing the right of way over and along the Front Path and the Verge Space (para 1(2)); and (iii) pull down and remove the obstruction on the Front Path and the Verge Space (para 2).

10.  When the Injunction Summons first came before this Court on 26 February 2021, the defendants gave an undertaking in the following terms (“the Undertaking”) and, on that basis, the summons was adjourned for substantive argument:-

“1. At their costs remove the frame next to the New Gate and replace it with a moveable gate within 14 days from the date hereof; and

2. Not to block access of the current pathway within [Lot A] and [Lot B] and leading to [Lot C]; and maintains the same for passageway with 5 feet in width including the place where the said moveable gate is to be [erected]. The said pathway is shown on the 1st photo handed to the Court by [D1] as between the wall and the flower bed.”[4]

11.  By the Injunction Amendment Summons, para 1(2) of the summons is amended so that the plaintiffs now seek an injunction to prohibit the defendants from obstructing the right of way over and along either (i) the Front Path and the Verge Space or (ii) “such alternative means via any part or parts of [Lots A and B] as the Court shall think fit”.

12.  At the hearing, the plaintiffs’ counsel (Mr Valentine Yim and Mr Jeff Yau) proffer five legal bases for the plaintiffs’ claim of a right of way over and along the Front Path and the Verge Space: (i) easement by prescription under the doctrine of lost modern grant; (ii) easement by implied grant within the rule of Wheeldon v Burrows; (iii) easement by implied grant necessary to give effect to parties’ intention; (iv) easement of necessity; and (v) easement by proprietary estoppel. ^[5] They emphasise that absent the free use of the Front Path and the Verge Space for ingress to and egress from their land, the plaintiffs’ houses built on Lots C and D would be unuseable.

13.  Apart from challenging the plaintiffs’ bases, the defendants advance three substantive defences:- [6]

(a)  Cheung Lun and his successors-in-title were allowed to use the Front Path on the basis of an oral agreement reached between Cheung Lun and Cheung Tung back in 1971 (“the 1971 Oral Agreement”).  At that time, Cheung Lun had just built a house on Lot C and needed an access road.  In consideration of and conditional upon allowing Cheung Tung and his successors-in-title to use a “Cut-Off Area” on Lot C (coloured blue on the plan at p 437 of Bundle B2), Cheung Lun and his successors-in-title were allowed to use the Front Path over Lots A and B for access. 

However, the plaintiffs rescinded the 1971 Oral Agreement in around 2017 and the same was therefore terminated. 

The Verge Space is likely to be a recent invention of the plaintiffs so as to increase the value of their houses.

(b)  There are at least 2 alternative routes giving free ingress to and egress from the plaintiffs’ land without using the Front Path and the Verge Space over the defendants’ land.  They are called “the Two Pink Paths” in paras 24 and 25 of the Defence and marked in pink on the plan at p 437 of Bundle B2.

(c)  The plaintiffs sought to purchase a right of way from the defendants through an estate agent.  If the plaintiffs had the right of way as alleged, they would not have to purchase it from the defendants.

14.  Ms Liu emphasises that the defendants are entitled to use their land as they please and the Undertaking was indicative of a lack of intention on their part to interfere with the plaintiffs.

15.  In reply, the plaintiffs’ counsel:- [7]

(a)  doubt the genuineness of the 1971 Oral Agreement;

(b)  maintain that the Two Pink Paths are inaccessible and have never been used by the plaintiffs; and

(c)  reiterate that the estate agent was acting for a third party (who had wanted to purchase the plaintiffs’ land) when he dealt with the defendants in respect of the right of way.

16.  Towards the end of the hearing, the parties came to a consensus for para 2 of the Undertaking to continue until trial without prejudice to the Defence (para 1 having been complied with).  I commend both sides for taking a sensible approach. 

(a)  This action is at an infant stage.  It is unrealistic to expect the Court to resolve the substantial disputes spanning generations on affidavit/affirmation and submissions alone. 

(b)  In the context of an application for interlocutory injunction, the Court is broadly concerned with whether there is a serious question to be tried and the balance of convenience.  As DHCJ MK Liu explained in Zhao Zhi Qiang (趙志強) v Zhao Zhiguang (趙志光) [2020] HKCFI 2990 at para 40 (omitting the footnotes):“It is well established that ‘a serious question to be tried’ is not a steep hurdle.  All that has to be shown is that the claimant has prospects of success which in substance and reality exist, and odds against success do not defeat him.  As long as there is a serious question, it matters not whether the court thinks that the chances of success at trial is 90% or 20%.  If the opposing party seeks to show that there is no serious issue to be tried, the threshold is high, as it would be necessary to demonstrate that the claim should be struck out.” 

In the present case, notwithstanding the substantial argument advanced by the defendants, they have not sought to argue that the plaintiffs’ claim is without merits.

(c)  On the other hand, the defendants have removed the obstruction since the commencement of this action and complied with para 1 of the Undertaking. ^[8] The plaintiffs are apparently content, at least as an interim measure, to have access through the alternative route offered by the defendants in terms of para 2 of the Undertaking as shown by the SOC Amendment Summons and the Injunction Amendment Summons.

(d)  As Lord Hoffmann said in National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] 1 WLR 1405 at paras 16-17, the purpose of an interlocutory injunction is to “improve the chances of the court being able to do justice after a determination of the merits at the trial” and so “the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other”.  Even in the context of an application for an interlocutory mandatory injunction, “[w]here it is shown, as an exception to [the] general approach, that the case is one in which the withholding of an interlocutory mandatory injunction ‘would in fact carry a greater risk of injustice than granting it even though the court does not feel the high degree of assurance’ as aforesaid, it would be right to grant an interlocutory mandatory injunction, see Films Rover International Ltd v Cannon Film Sales Ltd, p 681A-B.” ^[9]

In the present case, there is evidence from the plaintiffs that the Two Pink Paths are factually and legally inaccessible to them.[10] There is a chance that the plaintiffs’ land will become landlocked if no interlocutory relief giving access to their land is granted.

17.  In the premises, I accept the defendants’ undertaking and make no order on the Injunction Summons as amended.  Counsel have agreed that the costs of the application should be reserved with certificate for one counsel and I so ordered.

The Representation Summons

18.  In paras 15 and 16 of the Defence, the defendants take objection to (a) Cheung Siu Ling suing on behalf of the estate of Cheung Yin Kwong, deceased, in terms of P1; and (b) Cheung Wai Wing suing on behalf of the estate of Cheung Lun, deceased, in terms of P2.

19.  In her submissions, Ms Liu:- [11]

(a)  makes good the objection by reference to some well-known authorities for the proposition that “intended” personal representatives have no locus to sue on behalf of the estate they purport to represent; and

(b)  submits that without the involvement of the owner of Lot C (ie the estate of Cheung Lun, deceased) in this action, the claim by the remaining plaintiffs for a right of way over Lots A and B would be meaningless as Lot C is the only land that connects with Lots A and B and it is not the remaining plaintiffs’ case that they have independently acquired any right of way over Lots A and B, citing Yik Wai Pong v Yick Pak Kin [2019] HKCFI 21 at para 58.

20.  By the Representation Summons, the plaintiffs seek:-

(a)  leave to substitute Cheung Siu Ling (“Ling”), an executrix of the estate of Cheung Yin Kwong, deceased, as P1; and

(b)  an order that Cheung Wai Wing (“Wing”) be appointed to represent the estate of Cheung Lun, deceased, for the purpose of this action.

21.  According to the plaintiffs:-

(a)  Ling is one of the executrices named in the will of Cheung Yin Kwong, deceased.  At common law, she has always had the locus to commence this action even before grant of probate.[12] Her act as one of the executrices is regarded as the act of all and is binding on the estate.[13]  The plaintiffs therefore apply for leave under Order 15, rule 6 or Order 20, rule 5(1) & (4) of the Rules of the District Court (“the RDC”) to effect the necessary changes to the title of P1.  Alternatively, they seek an order under Order 15, rule 15 for Ling to represent the estate.

(b)  In this action, the plaintiffs seek to assert a right of way over the defendants’ land for the benefit of the plaintiffs’ land including Lot C belonging to the estate of Cheung Lun, deceased.  As easement is a proprietary right forming part of the estate, this action may be viewed as an act to preserve the estate or maximize its value.  Either way, it is for the purpose of and/or in connection with the proper administration of the estate. 

Wing as P2 commenced this action in two capacities – his personal capacity and as intended personal representative of the estate of his late father Cheung Lun, deceased.  Insofar as he has purported to represent the estate in instituting this action before a representation order, the proceeding is irregular but not void: see Ip Cheung-kwok v Sin Hua Bank Trustee Ltd [1990] 1 HKLR 497 at 516B.  Be that as it may, all potential beneficiaries of the estate have consented to Wing representing the estate and the plaintiffs therefore seek an order under Order 15, rule 15 to rectify the irregularity.

22.  The defendants dispute both aspects of the application.  According to Ms Liu:-

(a)  The Defence (challenging the locus of P1 and P2) was filed in June 2021 but the plaintiffs only took out the Representation Summons just a few days before the hearing.  There is no explanation for the apparent delay and the defendants have been deprived of the opportunity to file evidence in opposition.

(b)  An executor is not allowed to sue to judgment without production of grant. [14]  Cheung Yin Kwong died in the UK and the other executrix named in the will (ie Ling’s mother) is likely to be outside Hong Kong.  For a foreign executor, he must obtain a grant in Hong Kong before he can prove his title in the Hong Kong courts, [15] and the registrar may require sureties to be provided as a condition for the issue of grant. [16]  In her submissions, both executrices should be named as P1 and, in the meantime, P1’s claim should be stayed pending the production of grant. [17]

(c)  The defendants dispute whether P2’s claim is connected with the proper administration of the estate, and the Court should not exercise its discretion in favour of appointing Wing to represent the estate of Cheung Lun deceased under Order 15, rule 15. [18]

23.  In reply, the plaintiffs submit that:-

(a)  The defendants have clearly anticipated the argument, as they mounted the challenge in the first place.  The defendants have filed two rounds of elaborative affirmations exhausting all factual matters relevant to the dispute.

(b)  An executor out of the jurisdiction of the court is not a necessary party, citing Hong Kong Civil Procedure 2021, para 15/14/11; and Drage v Hartopp (1885) 28 ChD 414.

(c)  An action ought not be stayed if the proceedings is still at an early stage, citing Ng Im Fong Loretta v Charm Investments Ltd [2021] 3 HKLRD 327 at paras 35 & 48; Yeung Yuk Yin, ante, at para 11.

24.  In my view,

(a)  There is no real prejudice to the defendants.  Despite their contention, they did not seek leave to file evidence in opposition but proceeded to argument straightaway.

(b)  A copy of the last will and testament of Cheung “Yim” Kwong dated 11 May 2015 is exhibited to the second affirmation of P1 to confirm the appointment of the executrices. [19] Ling has “made inquiries with the other executrix, namely my mother Cheung Tang Yuk Tai, and she also consents to my becoming the 1^st Plaintiff herein in my capacity as an executrix of Cheung Yin Kwong’s estate and, if necessary, on her behalf as well.” [20]  

I agree with the plaintiffs that Ling’s mother is not a necessary party.  In the circumstances of this case, I am in favour of making an order in terms of para 2 of the summons to enable the estate of Cheung Yin Kwong, deceased, to participate in this action to safeguard the interest of the estate in terms of the rights of way claimed.

(c)  There is evidence that Cheung Lun died intestate on 5 January 1996. [21] He was survived by three sons, namely, Cheung Yin Kwong, P2 and P3.  It is the plaintiffs’ case that Cheung Yin Kwong having died, his issue (including Ling) are not beneficiaries of the intestate estate of Cheung Lun, deceased, under the applicable intestacy rules.  Wing is in the process of applying for letters of administration in respect of the estate and P3 has consented to Wing representing the estate in these proceedings.

There is no inflexible rule that an action brought by an executor in that capacity must be stayed whilst his status is being disputed.  As Godfrey Lam JA said in Ng Im Fong Loretta v Charm Investments Ltd [2021] 3 HKLRD 327 at para 39: “Ultimately,… the question of temporary stay of proceedings in a case such as this is, as stated in Lee Chaio Shing, a matter of discretion and case management, to be approached on the basis of the balance of convenience and fairness as between the parties and with a view to ensuring the court’s procedures are used in a logical, fair and cost-efficient manner.”

I am in favour of granting the order sought in para 4 of the summons to enable the estate of Cheung Lun, deceased, to participate in this action to safeguard its interest. 

25.  There should also be an order in terms of para 5 of the summons for consequential amendments to the writ and the SOC.

26.  On the question of costs, I make an order nisi that the defendants (having lost the argument) should pay the plaintiffs’ costs of the argument on the Representation Summons with certificate for one counsel and the remaining costs be in the cause.  On a very crude basis, I apportion half of the hearing time to the Representation Summons for the purpose of taxation.

27.  It remains for me to thank counsel for their able assistance.

The Plan