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Kwan Hung Shing As Executor Of The Estate Of Ho Shuk Ming, Deceased v Fong Kwok Shan, Christine And Others

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date09 July 2019
Neutral Citation[2019] HKCFI 1687
Year2019
Judgement NumberHCA265/2012
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA265A/2012 KWAN HUNG SHING AS EXECUTOR OF THE ESTATE OF HO SHUK MING, DECEASED v. FONG KWOK SHAN, CHRISTINE AND OTHERS

HCA 265/2012

[2019] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 265 OF 2012

________________________

BETWEEN
KWAN HUNG SHING (關雄盛),
AS EXECUTOR OF THE ESTATE OF HO SHUK MING (何淑明), DECEASED		 Plaintiff
and
FONG KWOK SHAN, CHRISTINE (方國珊) 1 st Defendant
SHEK WAI MAN (石偉文) 2nd Defendant
LI HON FUNG (李漢豐) 3rd Defendant
SHEK KAM SING (石錦勝) 4th Defendant
LAU KAM YAN (劉錦仁) 5th Defendant
SHEK KAM HUNG (石錦鴻) 6th Defendant
LAU CHAN KOON KIU (劉陳觀嬌),
THE ADMINISTRATRIX OF THE ESTATE OF LAU SHUI SANG (劉水生), DECEASED		 7th Defendant
SHEK HO TAI (石好娣) 8th Defendant
LAU KAM WAH (劉錦華) 9th Defendant
SHEK WAI KEUNG (石偉強) 10th Defendant
LI HON FAI (李漢輝) 11th Defendant
SHEK WAI MING (石偉明) 12th Defendant
WONG TO WING (黃道榮) 13th Defendant
SHEK KWAI SANG (石季生) 14th Defendant
GRAND RESOURCES PROPERTIES LIMITED
(宏億置業有限公司)		 15th Defendant
SHEK KWAI CHOI (石貴彩) 16th Defendant
SHEK YAU CHOI (石有彩) 17th Defendant
CHEUNG CHUNG YIU LING KONG
(張聰耀玲光)		 18th Defendant
CHEUNG WO PING (張和平) 19th Defendant
CHEUNG TUEN KET ( 張團結) 20th Defendant
SECRETARY FOR JUSTICE
(SUED ON BEHALF OF THE DIRECTOR OF LANDS)		 21st Defendant

________________________

Before: Hon Wilson Chan J in Court

Dates of Hearing: 8-11, 14-18 January and 6 March 2019

Date of Judgment: 9 July 2019

________________________

J U D G M E N T

________________________

A. INTRODUCTION

1. This action concerns small house development in the Sai Kung District, New Territories. The plaintiff is the executor of the estate of Ho Shuk Ming (何淑明), deceased (the “Deceased”).

2. The Deceased (the original plaintiff in this action) was the registered and beneficial owner of the subject land. Mr Kwan Hung Shing (“Kwan H.S.”), as her executor, seeks, inter alia, recovery of the subject land from the “dings”, mesne profits against the 1st defendant, and other consequential injunctive and declaratory relief. In this Judgment, as appropriate, the reference to the plaintiff refers to both the Deceased and her estate.

B. FACTUAL BACKGROUND

3. The subject land includes Sections A to H of Lot 104, the Remaining Portion of Lot 104, Lot 391 and Lot 396 all in Demarcation District No. 252 (collectively the “Properties”).

4. At all material times before 4 April 1995, the plaintiff was the registered and beneficial owner of Lot 104. On or about 29 January 1995, the plaintiff entered into a development agreement entitled “丁屋合作發展協約” with one Kennis Ltd trading as “Green House Property Agency” (of which the 1st defendant was a shareholder and director) (“Green House”) to build small houses on Lot 104 under the Small House Policy (the “1995 Development Agreement”). Under the 1995 Development Agreement: –

(1) Green House was responsible for identifying suitable dings (ie New Territories indigenous inhabitants) to exercise their dings’ rights and apply for licence to build small houses on the Properties (Clause 3).

(2) The plaintiff should transfer the legal title of the Properties to persons specified by Green House so that they could make the relevant applications (Clause 4).

(3) Green House would be responsible for paying all the related ding fees, building cost, and land premium (Clause 5).

(4) The plaintiff would be allocated 2 houses, and the remaining houses would belong to Green House (Clause 8).

5. In 1997, Green House assigned all its rights and liabilities in respect of the development project regarding the Properties to the 1st defendant. This led to 2 further development agreements between the plaintiff and the 1st defendant in 2000, namely: –

(1) An agreement for joint development of the Properties entitled “丁屋合作發展協約” dated 19 February 2000 (the “2000 Development Agreement”); and

(2) An agreement entitled “揀樓協約” also dated 19 February 2000, which stipulated that the plaintiff’s 2 houses would be built on Lot 104B and Lot 104C (the “2000 House Selection Agreement”).

6. In 2002, the plaintiff commenced DCCJ 8027/2002 against the 1st defendant for, inter alia, failing to complete the construction of the small houses within the stipulated time under the 2000 Development Agreement. DCCJ 8027/2002 was eventually settled and resulted in the plaintiff and the 1st defendant entering into another development agreement (the “2004 Agreement”). Under the 2004 Agreement: –

(1) The 1st defendant should pay into the account of the plaintiff’s then solicitors (Messrs Wong Hui & Co) a sum of HK$200,000.00 as surety (Clause 2).

(2) By 1 August 2004, the 1st defendant must obtain plan approved by the Buildings Department for site formation work or certificate of exemption of site formation work issued by the Buildings Department (Clause 3.1).

(3) By 1 May 2005, the 1st defendant must complete the site formation work on the Properties in accordance with the approved plan and should provide a statement of completion of work from an authorized/qualified person to the plaintiff for record (Clause 3.2).

(4) By 1 May 2006, the 1st defendant must complete the construction work of the 3-storey small house on Lot 104B and Lot 104C according to the standards eligible for applying for Certificate of Compliance and provide proof of completion of work to the plaintiff for record (Clause 3.3).

(5) The plaintiff would be entitled to withdraw HK$20,000.00 per month for any breach of any conditions in Clause 3 from the HK$200,000.00 paid-in surety (Clause 5).

(6) When the paid-in surety had been fully deducted, the 1st defendant would cause the 2000 Development Agreement to be automatically terminated, and the 1st defendant should reinstate the Properties into its original state and return the same to the plaintiff; and that the 1st defendant should procure the relevant dings to transfer the legal title of the Properties back to the plaintiff within 3 months, and to pay the costs thereby incurred (Clause 6).

7. Between 1995 and 2007:

(1) Green House/the 15th defendant (of which the 1st defendant was a director) entered into various Chinese agreements/deeds with the 2nd to 14th defendants and the 16th to 20th defendants (who are all male indigenous inhabitants of the Sai Kung District). Under these agreements/deeds, (a) the 2nd to 14th defendants and the 16th to 20th defendants would apply to the 21st defendant for building small houses on the Properties under the Small House Policy; (b)Green House/the 15th defendant was the owner of the Properties, and the 2nd to 14th defendants and the 16th to 20th defendants would hold the Properties as trustee for Green House/the 15th defendant; and (c) each of the 2nd to 14th defendants and the 16th to 20th defendants would receive a fee in return;

(2) Each of the 3rd defendant, the 7th defendant, the 9th defendant, the 11th defendant, the 13th defendant, and the 18th to 20th defendants further executed a will, appointing the 15th defendant as the executor and devising to the 15th defendant their interests in the respective sections of the Properties held in their names; and

(3) Each of the 3rd defendant, the 5th defendant, the 7th defendant, the 9th defendant, the 11th defendant, the 13th defendant, and the 18th to 20th defendants executed various power of attorney, appointing the 1st defendant as their attorney to handle their small house applications in relation to the respective sections of the Properties held in their names.

8. On 4 April 1995, a deed poll was executed whereby Lot 104 was divided into 9 sections, namely Sections A to H and the Remaining Portion of Lot 104.

9. Subsequent to the said deed poll:

(1) The plaintiff, and the 2nd to 20th defendants entered into various sale and purchase agreements and assignments in respect of Sections A to H and the Remaining Portion of Lot 104;

(2) The 13th defendant surrendered Lot 104F to the 21st defendant in exchange of Lot 391 in 1998, and the 3rd defendant surrendered Lot 104A to the 21st defendant in exchange of Lot 396 in 2005 (“New Grants”); and

(3) The end result is that the plaintiff ceased to be the registered owner of the Properties, and the 3rd defendant, the 5th defendant, the 7th defendant, the 9th defendant, the 11th defendant, the 13th defendant, and the 18th to 20th defendants became the registered owners of the Properties.

10. The 1st defendant did not complete the construction of the small houses within the stipulated time under the 2004 Agreement. Therefore, the plaintiff in about March 2005 started withdrawing HK$20,000.00 per month from the surety which was fully deducted by November 2005. On 29 November 2005, Messrs Wong, Hui & Co, the plaintiff’s then solicitors, wrote to the 1st defendant demanding her to give vacant possession of the Properties back to the plaintiff forthwith. Nonetheless, the 1st defendant has remained in wrongful possession of the Properties, and the 3rd defendant, the 5th defendant, the 7th defendant, the 9th defendant, the 11th defendant, the 13th defendant, and the 18th to 20th defendants are still keeping their title as registered owners of the Properties to date.

11. The construction of small houses on Lot 104B and Lot 104C was completed but no certificate of compliance has been issued therefor. The plaintiff’s case is that 1st defendant has leased out the said 2 small houses for profit without the plaintiff’s consent since about 2013.

C. PLAINTIFF’S CASE ON THE PLEADINGS

12. In the Re-Re-Re-Re-Amended Statement of Claim (“Statement of Claim”), the plaintiff’s claim is on various bases: –

(1) The...

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