Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Tsang Woon Ming v Tsan Hing Tat Heidi And Others

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date19 July 2018
Neutral Citation[2018] HKDC 845
Year2018
Judgement NumberDCCJ3791/2016
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ3791A/2016 TSANG WOON MING v. TSAN HING TAT HEIDI AND OTHERS

DCCJ 3791/2016

[2018] HKDC 845

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3791 OF 2016

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

BETWEEN
TSANG WOON MING（曾煥明） Plaintiff
and
TSAN HING TAT HEIDI（曾慶達） 1st Defendant
TSANG HING KWONG THOMAS（曾慶光） 2nd Defendant
YAP HENRY FAT SUAN（葉發旋） 3rd Defendant
YAP HENRIETTA CHUN WAH（葉俊華） 4th Defendant
YAP JASON CHUN YING（葉俊英） 5th Defendant
YAP CHUN HUNG ALEXANDER（葉俊雄） 6th Defendant

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

Before: Her Honour Judge Winnie Tsui in Chambers (Open to Public)
Date of Hearing: 12 February 2018
Dates of Further Written Submissions: 2 and 5 March 2018
Date of Decision: 19 July 2018

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

DECISION

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

INTRODUCTION

1. The dispute concerns a piece of land at Lot No 141 in DD 313 in Tai O, Lantau Island. Erected on the lot is a single storey stone house and a wooden hut.

2. The plaintiff presently occupies the lot. He claims that it has been the home of his family since the 1940’s. His mother moved in there when she married his father in 1943 and has lived there until this day. The 1st to 6th defendants are the registered owners. The parties are relatives and, according to the plaintiff, all descendants of a Mr Tsang Hei.

3. In this action, the plaintiff claims against the defendants for adverse possession of the lot. Further or alternatively, he seeks, on the grounds set out in para 32 of his statement of claim, that the title of the lot be transferred to him praying in aid the principles of proprietary estoppel and unjust enrichment.

4. By summons dated 12 December 2016, the defendants ask for that paragraph and the corresponding relief set out in para 4 of the prayer be struck out on the ground that it discloses no reasonable cause of action, pursuant to Order 18, rule 19(1)(a) of the Rules of the District Court.

5. Mr Ross Yuen, counsel for the plaintiff, confirmed at the hearing that notwithstanding that unjust enrichment is pleaded alongside the plea of proprietary estoppel, the former cause of action does not add anything to the latter. There is therefore no need to examine the viability of the former as a cause of action separately. The only issue in the present application is whether the proprietary estoppel claim, as pleaded, is arguably sustainable such that it should be determined at trial (alongside the adverse possession claim), or is bound to fail and must therefore be struck out at this stage.

6. No affidavit has been filed in support of the striking out application as evidence is not admissible under Order 18, rule 19(2). The summons came before Master SH Lee on 7 August 2017. The master dismissed the summons after hearing arguments. The defendants lodged a notice of appeal against that decision. Shortly after that, they applied for a time extension to file their defence to 28 days after the final determination of the appeal. That application was effectively refused by the Registrar who ordered that time be extended to 19 October 2017 instead. On appeal to a judge, the Registrar’s decision was affirmed. Following that, a defence and counterclaim was filed, followed by a reply and defence to counterclaim.

7. The upshot of all these is that while Master Lee had before him only the statement of claim when he heard the summons, at the appeal stage, I have also before me the subsequent pleadings. This matters because there are indeed factual allegations pleaded by the plaintiff in the reply and defence to counterclaim, which he now seeks to rely on in this appeal. At the hearing, Mr Frederick Chan, counsel for the defendants, said that as a matter of law, I should not consider these subsequent factual allegations as they were not there when the master heard the application. Mr Yuen disagreed.

8. In my view, it is permissible for me to look at the entire set of pleadings. An appeal against a master’s decision is by way of re-hearing. Pleadings are not evidence. The restriction set out in Order 58, rule 1(4) therefore does not apply, namely that the receiving of further evidence at the appeal stage is not allowed unless special grounds are made out. Because of the way in which events have unfolded as this action progresses, subsequent pleadings have been filed. As a general rule, the factual matters contained in the reply and defence to counterclaim form part of the plaintiff’s pleaded case. To the extent that they are relevant to the striking out application, I fail to see why they should be disregarded. Mr Chan did not point to any specific rules or practice or any good reason which would support the contrary.

LEGAL PRINCIPLES ON STRIKING OUT

9. The principles governing striking out are well-known and trite.

10. It is only in plain and obvious cases that the court should exercise its summary powers to strike out any pleading. It should not decide difficult points of law at this interlocutory stage. 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: see Hong Kong Civil Procedure 2018 at 18/19/4.

11. It is common ground that under Order 18, rule 19(1)(a), the court should look at the pleadings without resort to any extrinsic evidence and that the facts as pleaded by the plaintiff are to be taken as true for the purpose of the striking out application: see Hong Kong Civil Procedure 2018 at 18/19/3.

THE PLAINTIFF’S PLEADED CASE

12. I set out below the plaintiff’s pleaded case.

13. As noted in the introduction, the plaintiff says that the parties are all descendants of Tsang Hei. The following family tree shows how they are related, as pleaded by the plaintiff. (“D” denotes a deceased individual.)

14. Apart from the parties, Madam Tsan Luk Yuk Yin (“Luk”) features prominently in the plaintiff’s case. She was the mother of the 1st and 2nd defendants and the 3rd defendant’s wife. The 4th to 6th defendants are the 3rd defendant’s children. Luk was their maternal grandmother. The plaintiff is therefore the uncle of the 1st to 3rd defendants and granduncle of the 4th to 6th defendants.

15. The legal ownership of the lot changed hands over the years as follows:-

(a) Since about January 1969, it was owned by a company, of which Tsan Yung, the plaintiff’s uncle, was the director and shareholder.

(b) Since about September 1981, Luk became the owner. As revealed in the reply and defence to counterclaim, she held the lot, together with other lots in Tai O, “for her children”.

(c) Luk passed away some time before December 2014. The date of death is not pleaded. By an assignment in September 2015, the 1st to 3rd defendants became co-owners of the lot, with different holdings. The 3rd defendant was assigned the lot in his capacity as the administrator of his wife’s estate.

(d) By an assent in December 2015, the 3rd defendant’s share was assigned to himself and the 4th to 6th defendants, again, with different holdings.

(e) As a result of the above, the six defendants became, and remain, the legal co-owners of the lot. Their respective holdings are not presently material.

16. The plaintiff’s parents had lived on the lot since at least the 1940’s. He was the second son and was born in 1949. His father passed away in around 1955. His mother has continued to reside on the lot up to now. That is, for over 70 years. Between the 1960’s and early 1980’s, the plaintiff moved out and lived on the Hong Kong Island for his studies and his work. During that period, he would return home during weekends to see and stay overnight with his mother. In about 1984, the plaintiff moved back to the lot to look after his mother. The two of them have continued to reside there up to the present day, without any interruption.

17. Since then and over the years, the plaintiff has continuously repaired, maintained, improved and renovated the lot and guarded it against other persons. In doing so, the plaintiff has expended substantial amounts of his own money. All along, he has treated the lot as his own property. His works included:-

(a) Upgrading the wooden door at the main entrance to iron gates;

(b) Erecting fences and gates at the backyard;

(c) Keeping the premises in good repair, including fixing the ceiling, replacing the water pipes, repairing the walls, gates and window frames, installing roof tiles, restoring flood damage, replacing the electrical wiring and renovating the interior; and

(d) Erecting a mail box at the wall of the main entrance of the house.

18. These works were carried out from 1984 to about 2014.

19. The plaintiff’s case is that since at least 1984, he has been in continuous and exclusive possession of the lot and that he has used it without the permission or consent of anyone. This forms the basis of his claim for adverse possession. His further or alternative case is set out in para 32 of the statement of claim. The relevant parts read:-

“(a) the aforesaid use, possession, occupation, improvement, maintenance and works done by the Plaintiff and his family were open and notorious and for a substantial period of time;

(b) the Defendants and/or their predecessors-in-title at all material times have had or ought to have knowledge of the aforesaid use, adverse possession and/or occupation of the Lot by the Plaintiff and his family, but nevertheless they at all material times did not commence any legal proceedings against the Plaintiff for possession of the Lot; nor had they exercised any control or ownership of the Lot for a very...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT