Li Cheong v. Lee Kwai Tai also known as Li Kwai Tai
Read the full judgment text of HCAP 32/2012 on BabelCite. This High Court CFI judgment was delivered on 5 March 2018.
1. This court dismissed the claim of the plaintiff and allowed the counterclaim of the defendant on 8 June 2016 after trial in the absence of the plaintiff: see the unreported judgment of the same date (“ the CFI Judgment ”). The plaintiff’s application for leave to appeal out of time was dismissed by the Court of Appeal on 11 April 2017: see the Reasons for Judgment dated 13 April 2017 (unreported, HCMP 3190/2016) (“ the CA Judgment ”).
Cites 4 cases
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HCAP 32/2012 [2018] HKCFI 478 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO. 32 OF 2012 ____________
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______________ D E C I S I O N ______________ Introduction 1.This court dismissed the claim of the plaintiff and allowed the counterclaim of the defendant on 8 June 2016 after trial in the absence of the plaintiff: see the unreported judgment of the same date (“the CFI Judgment”). The plaintiff’s application for leave to appeal out of time was dismissed by the Court of Appeal on 11 April 2017: see the Reasons for Judgment dated 13 April 2017 (unreported, HCMP 3190/2016) (“the CA Judgment”). 2.Ms Li Soo Tan a.k.a. Lee Soo Tan Doreen (“Ms Li”) now applies to set aside the CFI Judgment pursuant to Order 35 r.2, Rules of the High Court (“RHC”) by her Notice of Application dated 10 April 2017. In her Notice of Application, she asks for an order that:
3.The plaintiff takes a neutral stance and the defendant opposes this application. 4.This matter has a long history and the background facts have been narrated in both the CFA Judgment and the CA Judgment. I am reluctant to make any repetition here. However, to facilitate comprehension of this Decision, the basic facts leading to the present application should be outlined as follows. Background facts 5.In this action, the plaintiff claimed to be the nephew of the Deceased and sought a declaration to the effect that the Deceased died intestate without leaving any issue. The defendant claimed that the Deceased was her natural father and counterclaimed for a declaration that the Deceased died intestate and that she is the only surviving issue of the Deceased. 6.The trial initially took place on 22 September 2015 and the parties agreed at the first day of the trial that it should be adjourned pending a joint DNA report to be obtained. The consensus was that the joint DNA report would be cogent proof of the relationship between the Deceased and the defendant, or the lack of it. 7.On 1 February 2016, the defendant wrote to this court and report that the joint DNA report was available. Further, the defendant reported that a new party, i.e. Ms Li, filed a caveat on 24 September 2015 (“the Caveat”) in which she claimed to be a daughter of the Deceased and had an interest on the estate of the Deceased through her solicitors Messrs Kelvin Cheung & Co (“KCC”). In the covering letter by which KCC sent to the defendant the Caveat, an express reference was made to the present action indicating the knowledge of Ms Li about these proceedings in September 2015. 8.On that basis, the defendant sought leave to file and serve a Notice of Action to Ms Li pursuant to Order 15 r.13A. by letter dated 22 February 2016, this court acceded to her application and grant leave for the service of a Notice of Action dated 18 March 2016 (“the Notice”) on Ms Li. 9.On 3 May 2016, this court directed that the parties should fix a date for the adjourned hearing of the trial. The plaintiff did not respond at all and a trial date was fixed for 8 June 2016 in his absence. 10.On 8 June 2016, not surprisingly, the plaintiff failed to turn up. Nor did Ms Li. The defendant testified for her defence and counterclaim and this court accepted her evidence and the joint DNA report in its entirety. Accordingly, this court dismissed the claim of the plaintiff and gave judgment in favour of the defendant on her counterclaim. 11.The plaintiff took the matter to the Court of Appeal after a substantial delay and his alleged lack of knowledge of the trial date was emphatically rejected. The Court of Appeal was also skeptical about the plaintiff’s allegation that he only learnt of the outcome of the trial from the solicitors of Ms Li shortly before he made the application to the Court of Appeal on 16 November 2016. 12.In the CFA Judgment, Lam JA had this to say about Ms Li at §§28-29 and 34,
13.I note that Ms Li did not appear at the hearing of the plaintiff’s application before the Court of Appeal. 14.Ms Li indeed commenced a High Court action under HCAP 10/2016 (“the New Action”) in May 2016. At the resumed hearing of the trial on 8 June 2016, as confirmed by the transcript, Mr Poon, for the defendant, made a mention to this court of the New Action and told this court that Ms Li claimed to be another daughter of the Deceased. This court observed that it was up to Ms Li to prove her allegation in the New Action and the relevant declaration in this action only bound the parties to this action, which did not include Ms Li. 15.In making these observations, this court was obviously not alive to any service of the Notice. Mr Poon made no mention that the Notice was actually served on KCC and its ramifications including the possible binding effect of the Judgment on Ms Li. In all fairness to the defendant, the defendant’s solicitors, Messrs. Hoosenally & Neo (“HN”), sent to this court a letter dated 1 June 2016 (“the 1/6 Letter”) to inform this court that the Notice was served on Ms Li through KCC on 21 March 2016. Nevertheless, the Notice was actually not at the forefront of my mind. What was clear to this court is that despite the Notice, Ms Li was yet to be a party to the action at trial. As observed by the Court of Appeal and accepted by Ms Li, she did not file any acknowledgment of service in response thereto. 16.Order 15 r.13A(4) provides,
17.Therefore, by the operation of Order 15 r.13A(4), though not being a party to the action, Ms Li shall be bound by both the CFI and the CA Judgments as if she was a party. This application 18.On behalf of Ms Li, altogether 7 grounds have been advanced and Mr Cheung of KCC made two affirmations in support of her application. Basically, Mr Cheung alleges that Ms Li merely became aware of the CFI Judgment on 20 October 2016 and the Notice on 2 November 2016. He alleges that the defendant concealed from Ms Li the trial hearing on 8 June 2016 and the defendant failed to inform or remind this court of the Notice. He complains that notwithstanding her purported knowledge about the relationship between Ms Li and the Deceased, the defendant still misled this court into believing that she was the only daughter of the Deceased. 19.Mr Cheung in his affirmation accepts that an identical copy of the Notice, together with a full set of pleadings, was served on KCC on 12 January 2016. He also accepts that a letter of 14 January 2016 was received from the solicitors of the defendant whereby KCC was informed that they should obtain leave from the court to file and serve the Notice by way of ex-parte application and should let them know the result in due course. After receiving the said letter, Mr Cheung claimed that KCC did not receive any further letter from the defendant’s solicitors concerning the Notice. 20.Against this background, KCC commenced the New Action for Ms Li on 26 May 2016. In the Statement of Claim filed therein, it is pleaded that that Ms Li was the sole surviving issue of the Deceased and that the defendant was not a natural daughter of the Deceased. She further alleges that in any event, the defendant is not a lawful daughter of the Deceased by reason of the valid marriage between her mother Madam Chow and the Deceased. She refers to the present action and the pleaded case of the defendant herein. She prays for declarations that the Deceased died intestate with her being the only surviving issue of the Deceased and that she has priority in the grant of the Letters of Administration of the Deceased’s estate. Accordingly, she asks for an order that the Letters of Administration be granted to her with all the necessary consequential directions. 21.On 20 October 2016, during the hearing of a summons of Ms Li in the New Action before a master, HN disclosed for the first time to KCC that judgment was obtained in the present action. On 2 November 2016, the defendant applied to strike out Ms Li’s claim in the New Action on the ground of res judicata. Mr Cheung says it was only until then that KCC became aware of the Notice when they received the supporting affirmation from HN. 22.Mr Tse of HN in his affirmation avers that on 18 March 2016 the defendant served the Notice on KCC by a clerk named Mr Yam Chun Wing at the address stated in the Caveat, which is the address of KCC. Mr Yam made an affirmation of service dated 11 April 2017 after Mr Cheung complained about the lack of the same. 23.Mr Tse’s account is somehow supported by a chop of KCC appearing in a copy of the back sheet of the Notice. The chop was quite blurry and apparently it showed that the Notice was received by KCC on 21 March 2015. I believe that the service of the Notice was actually effected on 21 March 2016 as stated in the 1/6 Letter. No issue was raised about the exact date of service nevertheless. 24.Despite this, Mr Cheung maintains that he has not been able to find any hard or scanned copy of the Notice in his firm. He says he is making investigation into the circumstances under which the chop appeared in the back sheet and why the documents purportedly served have not been brought to his attention. He stresses that he makes these contentions on oath as an officer of the court to make them more credible. Analysis 25.I have a difficult decision to make here. To start with, I am unimpressed with the evidence of Mr Cheung including all his allegations made against the defendant. The way that this matter has been handled by KCC leaves much to be desired. On the other hand, justice is not served if I simply turn a blind eye to the documentary evidence in support of Ms Li’s allegation that she is the natural daughter of the Deceased and forbid her from establishing her relationship with the Deceased in the New Action. 26.I am satisfied that, as shown by the chop in the back sheet, in the absence of any challenge to its authenticity, HN did validly and properly serve the Notice on Ms Li through KCC. How such documents have gone missing in the office of KCC is another question and in any event should not concern the defendant. The allegation that KCC was not authorized to accept service of any documents in this action on behalf of Ms Li at that time is demonstrably hopeless. 27.Prior to the service, KCC received a copy of the Notice in January 2016 from NH and NH told them that they would further notify them about the progress of their intended application for leave to file and serve the same on KCC. If KCC did not have authorization to represent Ms Li at that time for the purpose of this action at all, there is no reason why KCC did not tell HN so there and then. 28.Mr Cheung is yet to tell this court what the findings of his investigation are. The Notice and the related documents have allegedly gone missing after the chop was stamped in the back sheet returned to HN acknowledging the receipt of such documents apparently. 29.Mr Cheung also attacks the validity of the Notice on the basis that the ex parte application for leave to file and serve the same was not supported by an affirmation pursuant to Order 15 r.13A. I see little merit in this complaint. The grounds of the application were sufficiently contained in the letter dated 1 February 2016 and there is no suggestion that it was inadequate or that any of such grounds was inaccurate. There is no point insisting on the formality when the same purpose was served without causing prejudice to anyone. 30.Regardless of what has happened to the Notice inside the office of KCC, my conclusion that the Notice has been validly served on Ms Li, coupled with the fact that no acknowledgment of service of the Writ filed herein for whatever reasons, pursuant to Order 15 r.13A(4), means that Ms Li shall be bound by the Judgement given in the action as if she was a party thereto. This court has no discretion to remove the binding effect at all. 31.Thus, it can be seen that the CFI Judgement became binding on Ms Li as a matter of law irrespective of whether or not this court was aware of such a binding effect at trial. 32.In the absence of an acknowledgement of service filed by Ms Li, Ms Li has never been a party to this action. I accept the explanation of HN that they did not see fit to serve on Ms Li any further documents including the notice of the trial hearing of these proceedings. I do not find any substance in the allegation of Mr Cheung that the defendant failed to inform and or deliberately concealed from Ms Li the trial date of 8 June 2016. There was no reason why HN should serve the letter dated 1 February 2016 on Ms Li at all, either. It was an ex parte application. 33.Nor do I find any merit in his complaint that the defendant failed to remind or inform this court at the trial hearing about the existence of the Notice and the possible interests of Ms Li in this matter. The 1/6 Letter already served the purpose to begin with and in any event Ms Li did not respond to the Notice at all. 34.There is no evidential basis in the allegation that the defendant had any knowledge of the documentary evidence purportedly supporting the claim of Ms Li at the time of the trial. There is no substance in, and I reject, the allegation that the defendant deliberately misled this court into making the declaration at trial to the effect that she is the sole surviving issue of the Deceased. 35.At trial, there was no evidence placed before this court to contradict the defendant’s evidence (paragraph 5 of her witness statement) that she is the only surviving issue of the Deceased despite Ms Li’s assertion in the Caveat. I accepted her evidence and made the declaration accordingly. Mr Poon duly informed this court of the New Action and I do not accept that the defendant has ever misled this court. 36.As regards the alleged ignorance of the Notice, Ms Li can only blame KCC. Ms Li herself has not filed an affirmation to support the present application. Mr Cheung’s allegation that Ms Li was not aware of the Notice is not contradicted by any evidence. Given the alleged disappearance of the Notice and the fact that apparently she has a genuine claim, not without hesitation, I can only accept that she had no such knowledge about the Notice and that explains why she did not file an acknowledge pursuant to Order 15 r.13A(4). 37.Ms Li should also blame herself for allowing herself to be in the present predicament. By the Caveat, Ms Li indicated her knowledge of this action, which concerned her purported interests in the estate of the Deceased. She did not take any step to intervene, however. Even the receipt of a copy of the Notice back in January 2016 failed to prompt her into action. KCC did not find it necessary to follow up with HN in respect of the progress of the defendant’s intended application so that the claim of Ms Li could be determined in this action as soon as possible and in the most cost-effective manner. Curiously enough, instead of applying for a joinder to this action, Ms Li commenced the New Action against the same parties to argue the same issues. 38.Mr Lam, for Ms Li, explains to this court that this application has been necessitated by the striking out application because the CFI Judgment may preclude Ms Li from pursuing her claim in the New Action. The master has adjourned the hearing of the striking out application pending the determination of the application of Ms Li in this action. Mr Lam submits that the binding declaration that the defendant is the sole surviving issue of the Deceased is the prime concern of Ms Li and he is content if this court can apply the slip rule to revise the declaration to that the defendant is the surviving issue of the Deceased so that Ms Li could still proceed to establish herself to be another surviving issue of the Deceased in the New Action. 39.This suggestion has its attractiveness but I do not think I can apply the slip rule here. I allowed the counterclaim and granted the declaration on the basis of the unchallenged evidence that the defendant is the sole surviving issue of the Deceased. It was not an accidental slip. 40.The binding effect of the Judgment on Ms Li is owing to her failure to file any acknowledgment of service and not because she is a party to this action. Order 35 r.2 is, as the matter now stands, not applicable because Ms Li is not yet a party to this action. 41.Ms Li had 14 days to file her acknowledgment of service after the Notice was served on her. What she should make an application for an extension of time to file the same under Order 3. r.5 notwithstanding the expiry of the original deadline. It is not until Ms Li has filed her acknowledgment within the new deadline if an extension of time is granted that she shall become a party to this action. She then may apply to set the CFI Judgment aside under Order 35 r.2. 42.In my consideration as to whether to exercise my discretion to grant such a time extension, which Ms Li has asked in her Notice of Application, this court is guided by the well-established principles expounded in a number of authorities such as The Decurion [2012] 1 HKLRD 1063 and Nantong Angang Garments Co. Ltd v Hellmann International Forwarders [2005] 4 HKC 86. I do not think it is necessary to set them out here. Suffice it to say, this court should have regard to the usual considerations and no doubt take into account all the circumstances to make sure the overall justice is met. 43.I am not at all convinced that there is an acceptable explanation for the delay even given my acceptance of Ms Li’s ignorance of the Notice until October 2016. She still had waited until April 2017 to take the first step to remedy the situation in the proceedings and I do not find the excuses Mr Cheung made in his affirmation to be reasonable. Ms Li should be well aware of the advanced age of the defendant (now 84 years old). She was in a noticeably poor medical condition at trial and this court clearly remembers her difficulties in giving evidence. The CFI and the CA Judgments mentioned her physical condition. Ms Li should not have made any further delay and KCC should have advised her not to do so. The delay is inordinate and inexcusable in all the circumstances. 44.On the other hand, I accept the evidence of the defendant that she would be prejudiced if Ms Li is allowed to reopen all the issues in these proceedings. Administration of the estate of the Deceased must inevitably be delayed further and in light of her advanced age and medical condition confirmed by her latest medical evidence, it is not unlikely that she in her lifetime would be deprived of her legitimate interest in the estate of the Deceased. 45.However, the overriding concern of this court is that this court expressly indicated that the relevant declaration in the CFI Judgment was not intended to be binding on Ms Li and that the documentary evidence presently placed before this court shows that Ms Li’s allegation in the New Action that she is the natural daughter of the Deceased is indeed bona fide. Mr Poon cannot argue otherwise. This court is unwilling to disallow a bona fide claim to be pursued and instead insist that Ms Li should be bound by the relevant declaration by reason of her default in filing her acknowledgement of service in the absence of her knowledge of the Notice in the first place. Conclusion and disposition 46.In view of all the circumstances, I believe that the fairest order is that Ms Li should be given 7 days from the date of this Decision to file her acknowledgement of service thereby becoming a party to this action. The CFI Judgment should then cease to be binding on her. Her application to set aside the CFI Judgment as against her albeit out of time should be heard together with or after the conclusion of the trial of the New Action by the same judge, preferably this court, to avoid duplication or repetition. Little further delay is caused as far as the present action is concerned. The defendant has to deal with the New Action anyway. 47.I, moreover, give liberty to the defendant and Ms Li to apply. I should make it clear that the Decision I make herein should not in any way fetter the master’s discretion in dealing with the striking out application of the defendant in the New Action. 48.Ms Li could have avoided all these troubles if she and/or KCC had acted properly and prudently. Now she requires the indulgence of this court and the defendant is bound to be prejudiced as a result. In the premises, I make an order nisi that Ms Li should pay the defendant her costs of and occasioned by this application incurred thus far on an indemnity basis, to be taxed if not agreed. 49.Lastly, I thank all counsel for their assistance in this matter.
Mr Lawrence Cheung instructed by Yu Hung & Co. for the plaintiff Mr Kevin Poon instructed by Hoosenally & Neo for the defendant Mr Simon Lam instructed by Kelvin Cheung & Co. for the intended intervener | |||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAP 32/2012