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Chan Suk Hing v Lau Yuet Cho

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date23 September 2016
Year2016
Citation[2016] 5 HKLRD 262
Judgement NumberDCMP1795/2016
Subject MatterMiscellaneous Proceedings
CourtDistrict Court (Hong Kong)
DCMP1795/2016 CHAN SUK HING v. LAU YUET CHO

DCMP 1795/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1795 OF 2016

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BETWEEN
CHAN SUK HING (陳淑卿) Plaintiff
and
LAU YUET CHO (劉乙初) Defendant

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Before: Deputy District Judge J. Chow in Chambers (Open to Public)
Date of Hearing: 31 August 2016
Date of Decision: 23 September 2016

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DECISION

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INTRODUCTION

1. The plaintiff applies for mandatory orders against the defendant by way of originating summons.

Background

2. Both the plaintiff and the defendant are the registered owners, tenants in common, of 77B Wing On Street, Peng Chau, New Territories, Hong Kong (“the Land”).

3. On 6 February 1964, the Land was assigned to Yeung Yun by way of a New Grant. On 15 May 1970 and 22 May 1970, Yeung Yun assigned to Ho Koi and Yeung Chi Kwan half share of the Land respectively.

4. Ho Koi passed away on 26 April 1984, his half share was vested to Ho Kam Tim (the plaintiff’s husband). On 15 October 1997, Ho Kam Tim sold his share to Ho Yuen Ling. On 3 June 2005, Ho Yuen Ling sold her share to the plaintiff.

5. On 19 March 1984, Yeung Chi Kwan sold her half share of the Land to both Wong Sau Kiu and Lau Yu Ping as joint tenants. Lau Yu Ping assigned her share as one of the joint tenants to the defendant. On 13 November 2008, Wong Sau Kiu passed away. The defendant, as the surviving joint tenant, became the sole owner of the half share of the Land.

6. Mr Lai, counsel for the plaintiff clarified (not deposed in the plaintiff’s affirmation), that both the plaintiff and the defendant are unrelated parties. A two-storeyed building was erected on the Land. The 1st floor of the building was occupied by the defendant and the ground floor of the building was occupied by the plaintiff. There is no internal staircase in the building, the two units have their own entrance and are self-contained.

7. The disputed area was a strip of land at the right side of the building and was described as “delineated and coloured red hatched black” in the plan of the New Grant. The disputed area was coupled with a special condition in the grant that no building shall be erected thereof.

8. As seen from the photos, the unit on the ground floor is somehow used as a commercial shop with a metal gate at the front entrance. The unit on the 1st floor (in accordance to the plan depicted) was built with an entrance at the side of the building leading to the 1st floor by staircases. The said entrance was leading to the disputed area.

9. The dispute arose when the defendant (i) erected a concrete structure at the rear of the disputed area and (ii) installed a metal gate at its front leading to the main road. The defendant kept the keys of the metal gate. Both the concrete structure and the metal gate effectively enclosed the disputed area for the defendant’s exclusive use. The plaintiff was deprived of the enjoyment and the access to the disputed area.

10. The plaintiff claimed two mandatory orders that (i) the defendant do remove the said concrete structure and the metal gate, or (ii) alternatively, to provide the plaintiff with the keys.

11. The ratable value of the Land was $135,000 which is less than $240,000, and within the District Court jurisdiction.

Hearing of the originating summons

12. The defendant did not appear at the hearing.

13. Order 32 rule 5(1) of the Rules of the District Court, Cap 336H (“hereinafter referred to as “the Rules”) expressly provides,

“Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do. Rule 5(2) thereof.”

and Order 32 rule 5(2) of the Rules provides,

...

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