Yung Siu Chee Margaret and Others v. Choy Ching Wa Fionne and Others

HCMP 1682/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1682 OF 2016

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Before: Hon Chow J in Chambers (Open to Public)

Date of Hearing: 11 October 2017

Date of Decision: 11 October 2017

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D E C I S I O N

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1.By the Order of Master J Wong dated 6 September 2017, the 1^st defendant was given leave to file and serve affirmation(s) in reply to the 5^th affirmation of Wong Tak Shing on or before 27 September 2017.

2.On 27 September 2017, the 1^st defendant filed her second affirmation (“the Second Affirmation”) comprising 96 paragraphs.  In paragraph 2 of that affirmation, she said that it was made to provide more background information or events which she had observed throughout the long period of her previous dealings with Dr Yung Yau (“the Deceased”) and his wife as well as on the administration of the estate of the Deceased, to supplement what she had stated in her first affirmation and to respond to the allegations contained in various affirmations filed by different parties in this action.

3.On 28 September 2017, the 2^nd to 5^th defendants applied to expunge the Second Affirmation with the exception of paragraphs 1-3, 44-47 and 92-96 thereof, on the grounds that (i) the contents of the affirmation (save those specifically mentioned above) are not relevant to the proceedings, and (ii) she had no leave to file evidence other than in reply to the 5^th affirmation of Wong Tak Shing.

4.Mr Isaac Yung (for the 1^st defendant) accepts that (i) she needs leave to file the Second Affirmation (other than those paragraphs not objected to), and (ii) some of the paragraphs objected to are not strictly relevant to the issues in this action, including paragraphs 48-51, 60-62, and 67-91.  Of the remaining paragraphs, according to Mr Yung, they are relevant to the following issues, namely (i) the Deceased’s alleged waiver of a loan of about HK$9m made to Nicholas Yang, and (ii) the reasons why the executrices of the estate of the Deceased pursued the 1^st set of PRC proceedings.

5.Mr Ken To, on behalf of the 2^nd to 5^th defendants, submits that:-

(1) The purported reasons given to justify the 1^st set of PRC proceedings are not relevant because the complaint is that the executrices ought to have obtained legal advice in good time. Had they done so, they would have sued the right party or realized that they had sued the wrong party, and the estate would not have incurred unnecessary legal costs.

(2) The 1^st defendant had opportunities to make and file the Second Affirmation earlier but instead did so only barely 2 weeks prior to the hearing.

(3) The Second Affirmation adds nothing new to the materials already before the court, including in particular a letter previously letter sent by the 1^st defendant to Messrs Wong, Shum & Co and Messrs Wilkinson & Grist dated 11 August 2017.

6.In respect of (1), I consider that the contents of the disputed paragraphs of the Second Affirmation are relevant to the issues currently before the court.  In particular, in relation to the question of whether the court ought to require the executrices to reimburse the estate of the Deceased for costs and expenses incurred in the 1^st set of PRC proceedings, the whole background of those proceedings should be looked at before the court can decide whether the executrices acted reasonably in pursuing them notwithstanding the absence of legal advice obtained in good time.  The other paragraphs in dispute are, Mr To accepts, relevant to the issue of waiver of the loan.

7.In respect of (2), I consider that the 1^st defendant had opportunities to file, and could have filed, the Second Affirmation earlier.

8.In respect of (3), I consider that the contents of the disputed paragraphs of the Second Affirmation go beyond the contents of her letter dated 11 August 2017 and provide a more complete picture to the court for determining the issue of waiver.

9.I bear in mind the lateness of the Second Affirmation, and the difficulty that the 2^nd to 5^th defendants face to respond to the matters therein set out within a short period of time.  On the other hand, I consider it important that the 2^nd to 5^th defendants are making substantial claims against the 1^st defendant, including a claim that she should fully indemnify the estate of the Deceased against all loss and damage which it is alleged the estate has suffered arising from the failure to recover the loan of HK$9m odd advanced by the Deceased to Nicholas Yang.

10.Balancing all the factors mentioned above, I am prepared to exercise my discretion to permit the 1^st defendant to file and rely on the Second Affirmation, with the exception of those paragraphs identified in paragraph 4 above which Mr Yung accepts are not strictly relevant to the issues in this action.

Mr Richard Leung and Mr Ronald Pang, instructed by Wong, Shum & Co, for the 1^st to 3^rd plaintiffs

Mr Isaac Yung, instructed by KCL & Partners, for the 1^st defendant

Mr Ken To, instructed by Wilkinson & Grist, for the 2^nd to 5^th defendants