Man Loy Hei v. The Estate of Man Cheuk Hi, Deceased

HCMP 1694/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1694 OF 2015

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REASONS FOR DECISION

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Dismissal of Summons dated 23 May 2017

1.On 13 June 2017, I dismissed the Summons (“the Summons”) dated 23 May 2017 issued by the plaintiff seeking:

“ leave to adduce expert evidence, namely: a Report to the prepared and drawn up by a firm of Surveyors in relation to (i) Lot No. 931 in D.D. 104; (ii) Lot No. 933 in D.D. 104; (iii) Lot No. 1363 in D.D. 104; (iv) Lot No. 1366 in D.D. 104; (v) Lot No. 1368 in D.D. 104; (vi) Lot No. 1375 in D.D. 104; (vii) Lot No. 1376 in D.D. 104; (viii) Lot No. 1377 in D.D. 104; and (ix) Lot No. 1379 in D.D. 104.”

2.My reasons follow.

Whether “the estate” a proper party

3.“The Estate of Man Cheuk Hi, Deceased” is sued as the defendant.

4.I asked Mr Anthony Ko whether this action was properly constituted and whether an estate could be sued in its own name.  He was unable to persuade me that the answers to my two questions were in the positive.

Service of summons on the “defendant”

5.I asked Mr Anthony Ko whether the Summons had been served on the “defendant”.  He had the audacity to answer “yes”.

6.I asked him how.  He said it had been served on the Official Solicitor.  I drew his attention to the fact that under the Order of Master M. Wong made by consent (“the Consent Order”):

“ the Official Solicitor [was] appointed to represent the estate of Man Cheuk Hi, deceased for the limited purpose of accepting service of the Amended Originating Summons filed on 14^th December 2016.”

Significantly, the appointment of the Official Solicitor to represent the estate was “for the limited purpose of accepting service of the Amended Originating Summons”.

7.Plainly, the Official Solicitor had not been appointed and had not agreed by the Consent Order to accept service of the Summons.  T. K Tsui & Co. should have known better than to “serve” the Summons on the Official Solicitor.

8.The “service” drew a rebuff from the Official Solicitor by fax dated 31 May 2017 which stated in the final paragraph that:

“ We reiterate that pursuant to the Order dated 24 February 2017, the Official Solicitor has become functus officio after he accepted (as opposed to acknowledged) service of the Amended Originating Summons by our letter dated 27 March 2017. In the circumstances, we will not attend the hearing fixed for 13 June 2017. You are suggested not to serve us any document which are not related to our limited appointment so as to save unnecessary costs.”

9.It is clear that the Summons has not been served on the “defendant”.  Mr Anthony Ko knew and should know the terms of the Consent Order and the fax from the Official Solicitor.  I do not see how he could properly assert that service had been effected.

Issue for expert evidence

10.In any event, I would dismiss the Summons on merits.  The issue for expert evidence has not been properly defined. 

11.“Expert evidence … in relation to” the lots mentioned is not an issue upon which expert evidence could be sought.  “In relation to” is non-specific, something which is general rather than precise or exact.  Expert evidence on a such a non-specific and ill-conceived phrase is not going to assist the trial judge and leave should be refused.

Dismissal of the Summons

12.The Summons was a waste of costs and time.  I dismissed it.  As the defendant was absent, I did not make any costs order.

Mr Anthony Ko, instructed by T K Tsui & Co, for the plaintiff

The defendant was not represented and did not appear