Cheng Hong Pui v Yuen Sung Ching And Another

Judgment Cited authorities (2) Cited in Precedent Map Related
Judgment Date24 June 2016
Judgement NumberDCCJ221/2015
Year2016
CourtDistrict Court (Hong Kong)
DCCJ221/2015 CHENG HONG PUI v. YUEN SUNG CHING AND ANOTHER

DCCJ221/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 221 OF 2015

--------------------

BETWEEN
CHENG HONG PUI（鄭康沛） Plaintiff

and
YUEN SUNG CHING（元崇徵）, the 1st Defendant
executor of the estate of YIP WAI KI
（葉偉基）, deceased
HO LAI KUEN（何麗娟） 2nd Defendant

--------------------

Before: Deputy District Judge Eric Tam in Chambers
Date of Hearing: 19 May 2016
Date of Reasons for Decision: 24 June 2016

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REASONS FOR DECISION

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Introduction

1. This is an appeal by way of rehearing of the two applications of the 1st and the 2nd defendants (collectively “the defendants”) before Master on 14 January 2016 for:-

(1) striking out the Amended Statement of Claim under O 18 r 19 of the Rules of the District Court and the inherent jurisdiction of the court on the grounds that it discloses no reasonable cause of action and is vexatious or otherwise an abuse of the process of the court and dismissing the plaintiff’s action against the Defendants with costs; and

(2) striking out the Affidavit of Cheng Hong Pui (“the Affidavit”) under O 41 r 6 on the grounds that it is irrelevant and scandalous.

Both applications were dismissed by the Master upon conclusion of the hearing.

2. The Suit Land comprises 5 pieces or parcels of lands in Demarcation District No 113, Yuen Long, New Territories (“the Suit Land”). Together, they form a strip of land fit for use as an access road.

3. At all material times, the estate represented by the 1st defendant was the registered owner of Lot 1070C, whereas the 2nd defendant was the registered owner of Lot 1070D3. Both lots use the Suit Land for vehicular access.

4. Each of the constituent lots of the Suit Land was and is registered in the name of 2 co-owners as tenants-in-common in equal shares, namely the plaintiff and the 1st defendant in his personal capacity (“Yuen”), or the plaintiff and Cheery Consultants Limited, a limited company under Yuen’s control as the majority shareholder (“the Company”).

5. On 13 September 2013, the plaintiff, Yuen and the Company, granted a right of way on other lands in consideration of a total sum of one million Hong Kong dollars.

6. On 24 September 2014, Yuen and the Company (without joining the plaintiff) executed a Deed of Grant of Right of Way (“the Deed”) of the Suit Land to “formally grant” the right of way to the 2nd defendant and other persons without any considerations.

7. The plaintiff's claim is based on various alleged trespasses of the defendants on the Suit Land.

8. The period of alleged trespasses spanned from 12 September 2013 to 18 December 2014 and is continuing.

9. The defendants' case is that the acts of alleged trespasses were acts of or authorized by Yuen or the Company as a co-owner of the Suit Land. Furthermore, Yuen and the Company have executed the Deed to grant the defendants full right and liberty at all times to pass and repass over and upon the Suit Land.

10. The plaintiff alleged that some of the trespasses were acts of the 2nd defendant or her agent, and such acts cannot be authorized or ratified by Yuen or the Company alone.

Applicable legal principles

11. The following principles could be summarized from the commentary set out in Hong Kong Civil Procedure 2016, §18/19/4 at pp 448-449.

12. It is only in “plain and obvious” cases that the court should exercise its summary powers to strike out a pleading. The burden is on the party seeking to strike out a pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. The claim must be obviously unsustainable, the pleadings unarguably bad, and it must be impossible, not just improbable, for the claim to succeed, before the court will strike it out. If the court does not think the matter to be “clear beyond doubt”, there should be no striking out.

13. There should be no trial on affidavit. Disputed facts are to be taken in favour of the party sought to be struck out.

14. The court should not decide difficult questions of law in a striking out application. The court is loath to strike out a case that involves an area of the law which is in the process of developing – summary dismissal would deprive the court of hearing full...

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