TANG WAI LUN v. TANG KAI TUNG
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HCA1705/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1705 OF 1998
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BETWEEN | ||
| TANG WAI LUN, the personal representative of the estate of TANG PING KWAN, deceased | Plaintiff | |
| and | ||
| TANG KAI TUNG, the manager of TANG YUK CHO TSO | Defendant | |
| ------------------------- | ||
Before : Hon Yam J in Chambers
Date of Hearing : 29 June 2011
Date of Judgment : 29 June 2011
Date of handing down Reasons for Judgment : 15 August 2011
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REASONS FOR JUDGMENT
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Background
1. The defendant Tang Yuk Cho Tso was the registered owner of six lots of land in DD No. 109 (collectively “the Lots” and individually renamed as “Lot 1, 2, 3, 4, 5 and 6” for simplicity). In 1919 there was a division of the Lots of the Tso between one Tang Chong Ming and one Tang Kin Tak, the only two members of the Tso. Thereafter Tang Chong Ming became the beneficial owner of the Lots.
The plaintiff’s case
2. The plaintiff alleged that Tang Chong Ming agreed to sell and assign the first 4 Lots in 1936 to one Tang Shu Fun and the other remaining 2 Lots in 1937 also to Tang Shu Fun. They were evidenced by the 1st and 2nd Conveyance of Sale dated respectively 28 December 1936 and 26 January 1937.
3. In an affirmation dated 24 March 2001, the plaintiff Tang Ping Kwan said that he was born on 1934 in Hong Kong. In 1939 he was adopted by Tang Shu Fun and his wife Law Mui and since then he was the adopted son of the aforesaid couple. In the same affirmation Tang Ping Kwan said his father Tang Shu Fun passed away in 1945and all interests in the Lots were succeeded by the plaintiff’s father Tang Ping Kwan.
4. Thus the plaintiff claims for an order of specific performance of the 1st and 2nd Conveyance in 1936 and 1937 and the defendant as manager of the Tso should execute a confirmatory assignment to the plaintiff.
5. Alternatively, the plaintiff also claims for a declaration that the Tso’s title to the said Lots was in or about 1957 or any time thereafter extinguished pursuant to section 17 of the Limitation Ordinance, Cap. 347 as the plaintiff has an adverse possessory title over the said Lots.
6. For the aforesaid reasons, the plaintiff Tang Ping Kwan commenced the present action on 5 February 1998.
The defence case
7. On 2 April 1998, the defendant filed his defence. The defendant first of all alleged that Tang Chong Ming did not sign on the two alleged documents. They were forged as the purported signatures of Tang Chong Ming thereon were apparently and significantly different from his signature on the memorial registered by Memorial no. 82182 in the Yuen Long District Land Registry.
8. Further or alternatively the defendant averred that the plaintiff’s claim for the interest in the Lots pursuant to the two alleged documents, did not arise within 12 years next before the commencement of this action and it is barred by section 4(3) of the Limitation Ordinance, Cap. 347.
9. Further the defendant pleaded that only the house on No. 168 was erected in 1994 or 1995 by the plaintiff despite the protest and objection of the defendant and before the aforesaid erection of the house, the said land was at all material times vacant and unoccupied.
10. For the other five Lots they are either left vacant and non-occupied or rented out by the defendant or the defendant’s mother at various times and there was no adverse possession by the plaintiff.
Registrar Betts’ Order in 1998
11. On 14 September 1998, Mr Register Betts ordered for exchange of witness statements and expert evidence on hand-writing. There was discovery and inspection of documents thereafter but no further action was done by the plaintiff. Thus there was no filing and exchange of witness statements and expert evidence.
Further development of the case
12. According to the affirmation of Tang Wai Lun being the son of Tang Ping Kwan, there was a change of solicitors to the present solicitor for the plaintiff on 8 August 1999.
13. At that time Tang Wai Lun’s grandmother, i.e. the aforesaid Madam Law Mui was about 100 years old and accordingly his solicitors prepared two affirmations for her dated 24 January and 15 June in the year 2000. Later in the same year 2000, Tang Ping Kwan was diagnosed with lung cancer and he made an affirmation on 24 March 2001.
14. On 15 February 2001, Law Mui died in Hong Kong at the age of 102. Shortly afterwards, the original plaintiff Tang Ping Kwan also died in or about 2001. On 5 September 2001, the present plaintiff Tang Wai Lun was appointed as the personal representative of Tang Ping Kwan deceased for the plaintiff by the order of Master C.B. Chan upon the ex parte application of Tang Wai Lun.
15. The defendant alleged in the defence that prior to 5 December 1919, the daughter-in-law of Tang Yuk Cho, one Tse Shi, and his lawful concubine one Tang Man Shi were the trustees of Tang Yuk Cho Tso. By the division of property on 5 December 1919, Tang Man Shi was appointed the sole trustee in respect of the said Lots. At that time Tang Chong Ming was about 9 years old, i.e. he was born in or about 1910.
16. Further, shortly after the defendant filed and served his defence in April 1998, he was violently attacked by four to five men who broke into his house at Shui Tau Tsuen, Yuen Long. As a result of the said attack his head suffered severe injury and was hospitalised for three weeks. Thereafter he was required to attend follow‑up treatments by brain specialist many times before he returned to his usual residence in Vancouver, Canada. He was 66 years of age at the time he made his affirmation on 8 June 2010 and due to his health condition, he found it very difficult to remember things clearly and his memory deteriorated a lot. Originally he intended to call his key witness, one Madam Ngan who was the lawful concubine of his father Tang Shu Wo, as she resided at the village for over 70 years already. As the plaintiff had not filed any witness statement, Madam Ngan had not made any witness statement on his behalf although she had told him shortly after receiving the plaintiff’s writ of summons about the history of his family affairs and the land held by Tang Yuk Cho Tso. The defendant had only managed to scribble down something on rough papers which were used for the preparation of his defence in 1998. Madam Ngan was about 13 years old in 1936. Unfortunately she had already passed away on 6 January 2010 at the age of 87.
17. Now that the original plaintiff Tang Ping Kwan and his mother Madam Law Mui had died and the defence cannot cross-examine them on their affirmations.
18. After the aforesaid order Master C.B. Chan in September 2001 appointing Tang Wai Lun as the personal representative of the deceased plaintiff, nothing further was done by the plaintiff until 19 March 2010 whereupon the defendant filed and served his notice of intention to proceed. Thereafter on 23 April 2001 the defendant took out the present summons to strike out the plaintiff’s claim for want of prosecution. It was only there and then on 11 May 2010 the plaintiff filed his notice of intention to proceed.
The Master’s decision
19. Master S. Kwang struck off the plaintiff’s claim on 11 March 2011 and the plaintiff appealed therefrom to this court.
The appeal
20. Both the plaintiff’s counsel represented by Mr Kenneth Y.F. Wong and the defendant’s counsel Mr Tony Ko, filed and served a detailed submission as to the legal principle involved.
21. On the date of the hearing before me, I decided that the learned Master was entirely justified in holding that the plaintiff is guilty of inordinate and inexcusable delay. There was a slight delay of the deceased plaintiff after the order of Mr Registrar Betts in September 1998 and this however might well be explained by his ill health in the year 2000. However after his son Tang Wai Lun became the personal representative in this case in September 2001, there was absolutely nothing done by him in the ensuing 8½ years. His explanation of lack of fund is not an excuse. If he is desirous of proceeding with the action, he could have acted in person and enquired at the High Court Litigants in Person Resource Centre as to how he should proceed with the action.
22. However the plaintiff just warehoused the proceedings showing no intention to proceed to the trial. By 2010, three important witnesses had died : the original plaintiff, his mother Law Mui, and the lawful concubine Madam Ngan of the defendant’s father. The defendant himself was only appointed as the manager in 1995 and therefore he must rely on Madam Ngan’s evidence and the cross-examination of Tang Ping Kwan and Madam Law Mui.
23. The aforesaid inordinate and inexcusable delay of the plaintiff is a kind of abuse of the process of the court, which will caused prejudice or even irreparable prejudice to the defendant.
24. The plaintiff submitted that the action for specific performance have no statutory limitation. However the delay in this action is so serious which, to my mind, amounted to the equitable defence of laches. The court would not exercise its equitable jurisdiction to assist the plaintiff by way of a decree of specific performance when the plaintiff himself was guilty of long delay. Thus I am of the view that the plaintiff’s action should be struck out.
25. It has been submitted that after the striking out the plaintiff could have started another action and he can still rely on the claim for specific performance and adverse procession. However the claim for specific performance will still have to face the defence of laches. Further the claim of adverse procession has a different way of counting the length of occupation. The plaintiff’s original case, which is still the case here, is that the plaintiff and his successor occupied the Lots pursuant to the 1st and 2nd Conveyance and not as adverse possessors and that will have to face the defence of laches because of the long delay.
26. Accordingly on the date of the hearing, I dismissed the appeal and ordered that the plaintiff should pay the costs of the defendant, to be taxed if not agreed.
| (D Yam) Judge of the Court of First Instance |
Mr Kenneth Y.F. Wong, instructed by Messrs Wong, Hui & Co., for the Plaintiff
Mr Tony T.L. Ko, instructed by Messrs George Y.C. Mok & Co., for the Defendant
Please refer to CACV162/2011 for the relevant appeal(s) to the Court of Appeal.