Tsuei Sheng Chen and Others v. Uei Ka Yee Grace

HCA 3388/2016

[2018] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3388 OF 2016

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JUDGMENT

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I.  INTRODUCTION

1.The 1^st plaintiff Tsuei Sheng Chen (“Father”) and 2^nd plaintiff Ng Kwok Chun alias Tsuei Ng Kwok Chun (also known as Jane Ng, “Mother”) (collectively, “Parents”) have 3 children, an elder daughter Tsuei Kit Yee Joyce (“Joyce”), a son Tsuei Chun Ming (“Simon”) and a younger daughter Tsuei Ka Yee Grace (“D”) who is the defendant. The Father is 89 years old, and the Mother is 86 years old.

2.The Parents were/are the registered owners of a property known as Flat C, 8^th Floor, Miami Mansion (“Building”), Nos 13 and 15 Cleveland Street, Hong Kong (“Property”). The Parents and D used to reside at the Property, but the Property is now occupied by D.

3.On the Parents’ ex parte application made on 22 December 2016 with supporting affidavits by the Father, Mother and 林建釗 (“Lam”) all of the same date (“Father 1^st Aff”, “Mother 1^st Aff” and “Lam Aff”), Mimmie Chan J granted an ex parte injunction that D be restrained, whether by herself or by her agents and/or representatives or otherwise, from assaulting, intimidating, threatening the Father and/or Mother, and/or directly or indirectly contacting the Father and/or the Mother except through their nominated solicitors Fan & Fan (“F&F”), and/or engaging in any of the above/other conduct which would reasonably cause the Father and/or Mother to be concerned about the personal safety and the well-being of one or both of them (“Ex Parte Injunction”).

4.Pursuant to undertakings given under the Ex Parte Injunction, on 23 December 2016 the Parents (a) issued the Writ of Summons, (b) filed the Father 1^st Aff, Mother 1^st Aff and Lam Aff, and (c) filed an inter partes summons for continuation of the Ex Parte Injunction until judgment in the present action or until further order.

5.According to the Indorsement of Claim (“IoC”) on the Writ of Summons, the Parents sought the following reliefs:

(a)	an order to evict D from the Property and to require D to deliver vacant possession of the Property to the Parents within a reasonable period of time as the court directs;
(b)	an injunction to restrain D, whether by herself or by her agents and/or representatives or otherwise from (i) assaulting, intimidating, threatening the Father and/or Mother, directly or indirectly contacting the Father and/or the Mother except through F&F, and/or engaging in any of the above/other conduct which would reasonably cause the Father and/or Mother to be concerned about the personal safety and the well-being of one or both of them, (ii) interfering with the possession, use, occupation and/or enjoyment of the Property or any part thereof by the Father and/or Mother, and (iii) entering or using the Property (or any part thereof) without the consent of the Father and/or Mother;
(c)	damages for trespass to person;
(d)	interest, costs and further/other relief.

6.D was absent at the hearing of the Parents’ summons filed on 23 December 2016, and DHCJ Lee ordered that the Ex Parte Injunction be continued until judgment in the present action or until further order with costs reserved (“Continued Injunction”).

7.On 1 February 2017, D, who was self-represented, filed acknowledgment of service that gave notice of intention to defend. On 3 February 2017, D filed her 5-page Defence. On 31 July 2017, the Parents filed a summons for leave to file/serve their Statement of Claim as per the draft annexed thereto within 14 days of the order to be made.

8.On 21 August 2017, D filed (a) a summons to discharge the Continued Injunction (“Discharge Summons”), and (b) her affidavit in support of such summons (“D 1^st Aff”). On 25 August 2017, after hearing counsel for the Parents and D, Mimmie Chan J dismissed the Discharge Summons, and ordered D to pay the Parents their costs of the Discharge Summons and of such hearing.

9.On 1 September 2017, Master K Lo granted inter alia leave for the Parents to file/serve their Statement of Claim as per the draft annexed to the Parents’ summons filed on 31 July 2017 within 3 days from the date of the order, and leave for D to withdraw her Defence filed on 3 February 2017 and to re-file/serve her Defence within 28 days from the date of the order.

10.On 4 September 2017, the Parents filed their Statement of Claim (“SoC”) seeking the same reliefs in paragraph 5(a)-(d) above and also damages for wrongful occupation of the Property. On 29 September 2017, D filed her Defence and Counterclaim.

11.On 28 February 2018, the Parents filed a summons for summary judgment in respect of the following reliefs (“Parents’ Summons”): (a) a declaration that the Parents are the legal and beneficial owners of the Property, and (b) an order that D do deliver vacant possession of the Property to the Parents within a reasonable period of time as the court would think fit, with costs to be paid by D to the Parents (“Parents’ Summons”). On the same day, the Parents filed their 2^nd affidavits (“Father 2^nd Aff” and “Mother 2^nd Aff”) in support. On 11 June and 9 July 2018, D filed her 3^rd and 4^th affidavits in opposition (“D 3^rd and 4^th Affs”). Although the D 3^rd/4^th Affs were ostensibly filed for D’s Summons (see paragraph below), they contained facts/matters that might be pertinent to the Parents’ Summons, so in fairness to D I shall take into account those matters in considering the merits of the Parents’ Summons. For the same reason, I also take into account the contents of the D 2^nd Aff (see paragraph below) in considering the Parents’ Summons. On 13 July 2018, the Parents filed their 4^th affidavits (“Father 4^th Aff” and “Mother 4^th Aff”) in reply.

12.On 10 May 2018, D filed a summons to strike out the Parents’ SoC and to dismiss their claim in the present action (“D’s Summons”). D filed her 2^nd affidavit (“D 2^nd Aff”) on 10 May 2018 and also relied on the D 3^rd/4^th Affs in support of D’s Summons. The Parents filed their 3^rd affidavits (“Father 3^rd Aff” and “Mother 3^rd Aff”) on 11 June 2018, and also relied on the Father/Mother 4^th Affs in opposition.

13.On 14 November 2018, P filed a summons for leave to adduce her further affidavit deposed on the same day (“D 5^th Aff”) in support of D’s Summons (“Leave Summons”).

14.The hearing of the Parents’ Summons, D’s Summons and Leave Summons came before this court on 29 November 2018 (“Hearing”). At the Hearing,

(a)	Ms Liu, counsel for the Parents, had no objection for the D 5th Aff to be considered on de bene esse basis,[1] so I proceeded to hear D’s and Leave Summonses on such basis;
(b)	the Parents maintained without prejudice privilege over a 2-page letter dated 28 March 2017 by F&F to D marked “without prejudice save as to costs” that set out the Parents’ proposal for settlement of the present action and that was exhibited to the D 1st/2nd Affs without the Parents’ consent, so this court excluded the contents of such letter and reference thereto in the D 3rd/4th Affs (as well as D’s reply to such letter[2] being part of the chain of “without prejudice save as to costs” communications between the parties) when considering the Parents’ and D’s Summonses;
(c)	Ms Liu confirmed the Parents would not seek summary judgment for the relief in paragraph 11(a) above, which in any event had not been pleaded in the IoC and/or SoC;
(d)	both D and the Parents exhibited to their affidavits various correspondence/documents on arrangements for a proposed mediation and for appointment of a mediator, but the proposed mediation eventually did not take place, and the parties’ grievances (whether rightly or wrongly) over such arrangements did not appear to be relevant to either the Parents’ and D’s Summonses and were not canvassed in oral submissions.

II.  PARENTS’ CLAIM

15.The Parents claimed the Father[3] and the Mother[4] married in 1957. Joyce married and emigrated to the United States about 30 years ago, and Simon married and emigrated to Canada about 20 years ago. D was about 50 years old and had been unemployed for more than 10 years, so the Parents financially supported her by inter alia (a) allowing her to reside at the Property without payment/consideration, (b) paying pocket money to her, and (c) at her request paying $200,000 for her 2-year theology course in Canada in 2013 (but D dropped out after a few months and spent the Parents’ money on travelling and her own purposes).

16.The Parents as registered, legal and beneficial owners resided at the Property since 1966 up until the events described in paragraph 18 below, and allowed D (who did not make contribution to the purchase price and who had no legal/beneficial interest in the Property) to reside there since birth except for the period from about 1985 to 1988 when D pursued university studies in Canada. But D did not make any payment or give any consideration to the Parents for her use of or residence at the Property, and it was the Parents who “mainly funded” the utilities and maintenance charges. In short, the Parents claimed D was permitted to use/occupy the Property under a bare licence which they could revoke at will.

17.The Parents claimed they could no longer reside at the Property with D by reason of the matters in paragraphs 18-19 below. By F&F’s letter dated 22 December 2016 to D (“22/12/16 Letter”), the Parents notified D of the withdrawal/termination of their consent, permission and/or licence (if any) for D to use or stay at the Property, and demanded her to forthwith deliver vacant possession of the Property to the Parents. The Parents claimed that as legal/beneficial owners they were entitled to evict D from the Property, to require her to deliver vacant possession within a reasonable period, and to seek damages for trespass and/or mesne profits at a rate to be assessed from the date when D was in wrongful occupation of the Property until delivery of vacant possession thereof to the Parents. The Parents were also concerned that unless retrained by court order, D would continue her wrongful occupation/possession of the Property.

18.The Parents next claimed that on divers dates from 2014 to 2016, D intentionally/wrongfully assaulted, threatened, intimidated ad/or committed unreasonable behavior against them:

(a)	Since about 2014, D had on many occasions thrown or attempted to throw the Mother’s personal belongings (eg water glass, penholder, trash bin etc) on the floor or at the Parents.
(b)	Since about early 2016, D had on several occasions shoved the Father away when he was standing in the way whilst she shouted at the Mother. On 10 February 2016, when the Father was carrying laundry to the washroom at the Property, D asked him whether he had made his will as she requested. When the Father replied he was still preparing his will, D suddenly shoved him against the washroom door, and further scolded/punched him with both fists for more than 10 times, thus injuring his neck, shoulders, back and arm.
(c)	On 7 March 2016, D suddenly asked the Parents the number of shares they owned, and scolded the Father and blamed him for not making his will. On 2 April 2016, D shouted to the Parents to demand for money. On 4 April 2016, D raised the Mother’s teacup and attempted to throw it at her, but in the end D threw it on the floor in the Mother’s presence. D also picked up the Father’s cup and threw it on the floor. On 10 April 2016, D suddenly shouted and demanded the Parents to prepare their wills in her presence. On 13 April 2016, D broke the glass top of the dining table, suggesting that it symbolised the breakdown of her relationship with them, and she did not even allow the Parents to clear up the glass debris. The Parents were frightened and distressed, and felt insecure and threatened as to their personal safety, so the Mother went downstairs to call her nephew Lam for assistance.
(d)	Since April 2016, D scolded the Father and/or the Mother with abusive language on various occasions, including telling them to “go to hell” and/or leave the Property. On 14 April 2016, D asked the Mother to leave the Property and said she did not want to see the Mother, so the Parents had to leave the Property to wander in the streets. On 15 April 2016, D demanded the Father to give her $50,000 that day and another $50,000 the day after, and further sum of $1,300,000 within 3 weeks, which together was almost the Father’s entire savings, so he refused such requests.
(e)	Due to safety concerns, the Parents decided to move out of the Property to stay at a hotel. On 16 April 2016 (before the Parents moved to the hotel), they left $8,000 in an envelope as pocket money for D when they were away. When the Parents moved back to the Property on 23 April 2016, D threw the envelope at them claiming the amount was insufficient, and questioned why they returned to the Property. D told the Parents that evening she did not want to live with the elderly, and asked them to die quickly. D even claimed she had thought of killing them, but had not done so because of potential criminal responsibility. The Parents made a report to the police, but it did not help to resolve matters. On the following day (ie 24 April 2016), the Parents, who were frightened, again moved to a hotel. Since then, the Parents had not returned to the Property for fear of D’s physical and/or psychological abuses.[5]
(f)	On 12 May 2016, the Parents moved to Canada to live with Simon, but they could not cope with the environment there. The Mother returned to Hong Kong in October 2016 and the Father followed suit in November 2016. D appeared caring and thoughtful towards the Parents in public but acted abusively towards them in private, and she even told the Parents others would not believe them as she was so well-behaved in public.

19.The Parents claimed they suffered pain/injury and loss/ damages: (a) the Father suffered pain and injury to his neck, shoulders, back and arms, suffered shock, psychiatric injury and injury to feelings, and incurred medical expenses, and (b) the Mother suffered shock, psychiatric injury and injury to feelings, and sought the reliefs set out in paragraph 10 above.

III.  D’S DEFENCE

20.D denied the Parents’ claim and put them to strict proof.

21.Apart from such denial, D claimed (a) the Father was a project manager of the Hong Kong Housing Society (“HKHS”), and upon retirement worked as consultant and then as part-time worker at an architect firm, and still later worked part-time at a construction company, and (b) the Mother worked as teacher/headmistress at a kindergarten for 1½ years before it closed due to poor performance, and upon retirement she engaged in various hobbies.

22.D claimed Joyce (now 60) was married to a Chinese American, but D did not know when they became American citizens. D claimed Simon (now 56) became engaged to an Indonesian Chinese in Hong Kong and they married in Canada, and Simon told her he decided to become a Canadian citizen in 2012-2014. D further claimed that in the 2^nd quarter of 2016 Simon followed her on the street and took pictures of her, which acts were disrespectful or even illegal, so she approached the caretaker of a nearby building who asked Simon to leave and who told D she could make a police report. D disagreed she had been unemployed for 10 years, and claimed she had earnings from part-time work in July 2011.

23.D admitted (a) the Parents were the registered legal owners of the Property, (b) since 1966 they lived at the Property with their children, and (c) they allowed her to live with them at the Property since her birth except for 2½ years in the 1980s when she pursued her studies in Canada.

24.D claimed the “ [Parents] 在 [D] 12歲時，[Parents] 沒有向 [D] 提出需給所住之地買入價，即五分一HKD98,989 (大約買入價) ，約HKD19,797.80”，and she “讀畢學士學位，在港每月工作收入一半，給[Parents]。到 [Father] 在 [HKHS] 榮休時，[Father] 有一筆退休金，[Parents] 和 [D] 都放鬆。[Parents] 沒再接受 [D] 每月出糧一半人工。[D] 對 [the Building] 整棟住宅貢獻廣大及深遠，非指 [Property] 一個單位，是整棟的人流，衛生，[the Building] 物業市值，和管理部份”. D claimed the Parents could withdraw their claim against her in the present action, so she and they could “各自發展黃金耆英生活。[D] 的中女生涯到61歲差不多要完”.

25.D denied the Parents’ allegations in paragraph 18 above, and averred as follows:

(a)	D denied that on 7 March 2016 she suddenly required the Parents to tell her in detail the number of shares they owned, and averred “ [Parents] 和 [D] 一同計算流動資款”.
(b)	D denied that on 19 March 2016 she scolded the Father blaming him for not making his will, and averred “ [D] 知 [Father] 敏感聽大聲”.
(c)	D denied that on 10 April 2016 she suddenly shouted and demanded the Parents to prepare their will in her presence, and averred “ [D] 不記得日期。對這方向的事絕無經驗。衹想問為何不可以向 [D] 坦白？”
(d)	D denied the Parents’ account of D’s damage to the dining table on 13 April 2016, and D averred that on an occasion at the Property’s dining room the date and subject conversation she could not recall, the Mother “態度敵對地衝口而出，說：你是不是想爭產？”, which D found insulting, so in a moment of anger she banged the cup in her hand on the dining table which caused a crack, and told the Mother in anger that “if you continue to speak in the manner of accusation through negative thoughts, our relationships will be jeopardized …… shall lead to broken relationships”. D further claimed “那一久，停住了，沉默了。[D] 嚇得平復，安靜下來。[D] 話：“明天請人理。沒有碎片，可免於傷手”。[Father] 從睡房出廳見到，話：“你們2個攪什麼？” [D] 想話 “對不起”。[D] 衹說：“明天請人理。沒有碎片。” 三人沉靜了。[Mother]出外去，回家時，後隨 [Lam] ”.

26.D claimed she did not know whether the Mother made a report to the police, and further claimed “Mother曾至電 [D] 一起午膳。[Mother] 告訴有 [Lam] 伉儷。[Father] 一回 [Property] 後與 [D] 傾兩句便午睡去。[Mother] 親述報案了。警局裹，警務人員記錄的對話內容請公開，以示 [Parents] 當天控訴 [D]，而警務人員回覆刑事案、而 [Parents] 想變民事訴訟爭產案”.

27.D denied the Parents moved out of the Property because of fear of abuse. She claimed when the Parents did not return home she was anxious for their safety and made telephone calls to family and friends to look for them. She also claimed she had no idea that the Parents moved to reside with Simon in Canada, and “ [Parents] 渡洋、離港、遊走一會別的國。導寫成 [Parents] 似欲移居Simon崔俊明和崔麥焌瑩一對的所住之國，所住之住宿處”.

28.D claimed she felt aggrieved by the Parents’ allegations. She had lived with the Parents for 48 years and they liked to live with her, but it appeared they “對 [D] 生出厭棄之情”，“把女毀壞，以咀害女。藉堆砌控詞把 [D] 剔除於生活內”. D claimed the Parents, who had keys to the Property, could return home, but instead they “重覆地播放懼怕之詞，述 [D] 影響生活”. D claimed F&F “出信, [Parents] 竟無發出有商有量之善意”，“ [Parents] 在 [D] 毫無警覺下拋棄 [D]，在 [Parents]、[D]沒有固定收入之年，剝奪 [D] 在家長久建立的身份地位”.

IV.  LEAVE SUMMONS

29.The last round of affidavit evidence filed for D’s Summons was completed in June/July 2018. In taking out the Leave Summons 4 months later on 14 November 2018 with the Hearing just 2 weeks away, and having the Leave Summons returnable at the Hearing, D was obviously making a late application to adduce evidence which left little or no time for the Parents to respond. Having perused the documents exhibited to the D 5^th Aff, they concerned D’s correspondence with F&F in September 2017 and September/October 2018. D did not offer any explanation in D 5^th Aff as to why she left it until a month later on 14 November 2018 to file the Leave Summons. I am not persuaded there was good reason for the delay.

30.Nevertheless, at the Hearing, Ms Liu had no objection for the D 5^th Aff to be considered on de bene esse basis. The merits of the Parents’ and D’s Summonses are discussed below, but suffice to state here I am not persuaded the SoC ought to be struck out and/or the Parents’ claim ought to be dismissed. However, I agree summary judgment ought to be granted. The D 5^th Aff would not aid either the Parents’ Summons or D’s Summons, and in such circumstances I decline to grant leave for D to adduce the D 5^th Aff. I therefore dismiss the Leave Summons, and grant a costs order nisi that D shall pay the Parents their costs of and occasioned by the Leave Summons to be taxed forthwith if not agreed.

V.  LEGAL PRINCIPLES

31.Summary judgment A plaintiff may invoke the procedure under Order 14 of the Rules of the High Court (“RHC”) where there is no valid defence to his claim or otherwise a triable issue. The rationale is set out in Hong Kong Civil Procedure 2019:[6]

“ ...... The underlying policy of the summary procedure is to prevent a defendant from delaying the plaintiff from obtaining judgment in case in which the defendant clearly has no defence to the plaintiff's claim: Man Earn Ltd v Wing Ting Fong [1996] 1 H.K.C. 225.

‘Order 14 proceedings for summary judgment when there is no defence to a claim are an important feature of the legal process. It enables plaintiffs in cases where there is no defence to obtain expeditious summary judgment to avoid unnecessary delay. When applied for, it is for the defendant to show that there is a triable issue or an arguable defence if he is to be allowed his day in court. To deny him his day in court, if he shows a triable issue or an arguable defence, is indeed a fearful injustice. On the other hand, if he has no defence and he obtains leave to defence, equally, there is injustice to the plaintiff’ (Manciple Ltd v. Chan On Man [1995] 3 H.K.C. 459 at 466, per Mortimer J.A.).

The machinery of O.14 works on the basis that if the plaintiff's application is properly constituted, he is prima facie entitled to judgment unless the defendant shows cause to the contrary or the application is dismissed. ......”

32.In Ng Shou Chun v Hung Chun San,[7] Godfrey J noted it was not appropriate to embark on a mini‑trial of the action on affidavit evidence.[8] The court should ask itself the question whether what the defendant says is credible or believable. If so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment. Hong Kong Civil Procedure 2019 goes on to say that:[9]

“...... ‘In considering whether there are triable issues the Court will, of course, not take the alleged defence on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite opportunity being given to the defendant to respond earlier. The Court will also consider the inherent probability of the defence. But what the Court should not do is to conduct a mini‑trial on complicated factual issues’: Paul Y Management Ltd v. Eternal Unity Development Ltd (unrep., CACV16/2008, [2008] H.K.E.C. 1359) at [19] per Cheung J.A. ……”

“...... The defence set up need only show that there is a triable issue or question or that for other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law such as could have been raised on the former demurrer to the plea and no possibility of a real defence on the question of fact (Jacobs v. Booth’s Distillery Co. (1901) 85 L T 262; Runnacles v. Mesquita (1876) 1 Q.B.D. 416). Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the court should not make tentative assessments of the respective chances of success of the parties or the relative strengths of their good and bad faith, and should not on such an examination grant the defendant conditional leave to defend, but should give unconditional leave to defend: Billion Silver Development Ltd v. All Wide Investments Ltd [2000] 2 H.K.C. 262, applying Extraktionstechnik Gesellschaft für Anlagenbau Gmbh v. Oskar (1984) 128 S.J. 417 ......”

33.But to raise a triable issue or arguable defence, the defendant cannot be sparing of the particulars of his defence, and then claim that as a result of his own parsimony in details there is an obscurity which must await trial for illumination.^[10] Further, “‘[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to a sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism’ (per Megarry V.-C. in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] F.S.R. 298)”.^[11]

34.Striking out  Although not specified, Ds’ Summons was likely to have been made pursuant to Order 18 rule 19(1) of the RHC[12] and the inherent jurisdiction of the court. The principles governing striking out applications are well established. Hong Kong Civil Procedure 2019 provides as follows:[13]

“…... It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under this rule. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. 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. ……

Plain is not the same as simple and obvious is not the same as short. …… The mere fact that the case is weak and not likely to succeed is no ground for striking it out ……

It is for the party seeking to strike out an indorsement or pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……”

But the fact a question of law appears difficult/obscure does not necessarily preclude the court from striking out a claim if it is satisfied it has all the necessary information to decide the question, and has come to the conclusion after full argument in the face of all relevant information that the case is plainly and obviously one for striking out. In such circumstances, the court “should not decline to do so on the ground that the issues are difficult or complicated”.[14]

35.In respect of the ground of no reasonable cause of action, a reasonable cause of action means “a cause of action with some chance of success when only the allegations in the pleading are considered …… So long as the statement of claim or the particulars …… disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out …….”[15] In respect of the ground that the plea was frivolous or vexatious, Hong Kong Civil Procedure 2019 states that:[16]

“…… A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides.

In Yifung Properties Ltd v. Manchester Securities Corp, (unrep., HCA1341 and 1359/2014, [2015] H.K.E.C. 2182), Au Yeung J stated:

12. … Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process …… the court should see what the party in question knew or ought to have known if he had gone about the matter seriously ……

13. … Vexatiousness implies the doing of something over and above that which is necessary for the conduct of the litigation and suggests the existence of some spite, or desire to harass the other side to the litigation, or some other improper motive ……

14. To decide that the litigant has been frivolous or vexatious and thus abused the process of the court is a serious finding to make, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised.[17]

In exercising a judicial discretion to determine whether proceedings are vexatious ……, the court may admit affidavit evidence ……”

As regards “abuse of the court’s process”, the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.[18]

VI.  PARENTS’ SUMMONS

36.The reliefs sought in the Parents’ Summons concerned recovery of vacant possession of the Property, and the Parents left the other claims in relation to the Property (eg damages and injunctive relief in paragraphs 10 and 5(b)(ii)-(iii) above) and in relation to assault, intimidation and other unreasonable behavior towards the Parents (eg damages and injunctive relief in paragraphs 5(c) and (b)(i) above) to be pursued at trial.

37.The Parents claimed (as evident from the land search record) the Property was purchased in 1965 in the names of the Mother and Lily Wong Seik Hwa (“Wong”) as tenants-in-common. In 1971 the Mother acquired Wong’s half share, and in 1982 the Mother transferred half share of the Property to the Father such that they held and still hold the Property as joint tenants. D in her Defence admitted the Parents were registered legal owners of the Property. On 10 May 2016 the Parents granted a power of attorney to Hui Wai Hung (“Hui”) and Lam (“PoA”), and on 4 November 2016 the same was registered against the Property at the Land Registry. D in the D 3^rd Aff queried why Hui (who was unknown to her) and Lam were named as the Parents’ attorneys in the PoA. She suspected the Parents appointed Hui and Lam as attorneys under the advice of F&F. In my view, having admitted that the Parents were the registered legal owners of the Property, D (as mere occupant of the Property)[19] was in no position to question/challenge the PoA which the Parents were free to grant, and it did not matter whether or not the PoA came about pursuant to advice by F&F to the Parents.

38.The Parents claimed they were also the beneficial owners of the Property as (a) they paid for the purchase price of the Property, (b) D never made any contribution towards such purchase price, and (c) throughout the years the Parents (and not D) paid for repair/miscellaneous expenses, management fees and utilities charges in respect of the Property except for D’s payment of management fees for a few months when the management company could not contact the Parents who had to leave the Property due to D’s intimidation/assault/threats that led them to fear for their personal safety as explained in the SoC and the Father/Mother 1^st Affs.

39.For paragraph 38(b) above, I agree with Ms Liu that D’s assertion the “ [Parents] 沒有向 [D] 提出需給所住之地買入價, 即五分一HKD98,989 (大約買入價)，約HKD19,797.80” was an implicit acknowledgment that she did not make any payment towards the purchase price of the Property.

40.In respect of paragraph 38(c) above, whilst D disagreed with the Parents’ allegation that they had to flee the Property because of her intimidation/assault/threats, and claimed she was perplexed/discouraged by the Parents’ secret departure for an “extended tour trip” to Canada without leaving “any instruction” for her and without letting her know when they would return to Hong Kong. D admitted she had “taken up the ad-hoc role of paying the management fees” (my emphasis) and had to deal with daily routine and ad hoc household issues which were quite taxing for her as she was worried about the Parents, but had to attend to housekeeping matters, pay bills and management fees, and attend meetings in relation to renovation of the Building.

41.In my view, irrespective of the reason for the Parents’ departure from the Property, and even on D’s case that they went on an extended tour trip to Canada, it was plain from D’s affidavit evidence that she regarded the primary obligation fell on the Parents to pay the management fees for the Property, and she only made such payment on ad hoc basis just because the Parents were away from the Property for a few months. There was nothing in the affidavit evidence to show D made such ad hoc payments with a view to acquire any beneficial or proprietary interest in the Property. This was borne out by D’s own submissions at the Hearing in relation to the proposed sale of the Property referred to in paragraphs 62 – 63 below, and also recognised by the Parents who had since taken up the obligation to pay management fees. This was borne out  in D’s 10/10/18 Letter (see paragraph 52 below) that queried why “someone” paid management fees for the Property for July to October 2018. D’s written submissions clarified such “someone” was the Mother who paid the management fees to the day-time caretaker of the Building, and informed such caretaker that D no longer had to pay the management fees. Instead, even as at the Hearing, D herself recognised she had no beneficial or proprietary interest in the Property, and there was nothing to suggest (which suggestion was in any event not made) that the Parents held the Property on trust for D.

42.On D’s other assertions in paragraph 24 above, the Parents agreed D at first gave them part of her income for their pocket money and as contribution for her meals at home, but D soon asked the Parents to help with her tax payment and her investment (but she kept the investment returns herself), and she sometimes even asked the Parents to settle her credit card payments. I agree with the Parents that these matters had nothing to do with any legal right to occupy the Property. As for D’s allegation of having made contributions for the benefit of the whole Building, the Parents had no idea of such contributions. But in my view, any contribution by D towards the overall management of the Building had nothing to do with any legal right to occupy the Property, and raised no triable issue in this respect.

43.The Parents by the Father/Mother 2^nd Affs confirmed that since 1966 they lived at the Property and permitted D to live at the Property since her birth (except when she pursued her studies in Canada in/about 1985-1988). D did not dispute this save for minor disagreement over how long she studied in Canada. But in my view, such disagreement had no relevance to D’s right (if any) to continue to use/stay and/or reside at the Property.

44.From the above, it was clear the Parents as registered, legal and beneficial owners of the Property had merely permitted D to occupy and reside at the Property under a bare licence at will which was revocable by the Parents at any time, and D’s occupation was gratuitous and without consideration. The Parents were therefore entitled to terminate their permission/licence for any third party (including D) to occupy the Property, and to recover vacant possession of the same. The Parents so terminated such permission/licence for D to occupy the Property by service of the 22/12/16 Letter, so any further occupation of and residence at the Property by D after such notice was wrongful as there was no longer any permission/licence by the Parents. D admitted at the Hearing she was still in occupation of the Property. In light of the above analysis, her continued occupation of the Property was wrongful, and she was liable to be evicted therefrom.

45.D raised a number of matters in her affidavit evidence and in her oral/written submissions, not all of which were relevant to the issue under the Parents’ Summons. I will only deal with the more salient matters below. But I have carefully considered all D’s arguments, and suffice to say I am not persuaded they raise any triable issue or arguable defence as to any legal basis for her continued occupation of the Property.

46.D in the D 3^rd/4^th Affs claimed (a) her grandfather was a businessman and her grandmother was a housewife who spoke in a provincial dialect, (b) she loved, respected, honoured and admired her Parents (who were born in Mainland China) with the Father willing to say sorry for his mistakes but the Mother less willing to do so, and (c) she was brought up by the Mother whom she respected as a professional working lady. Whilst these matters might provide background information as to the Tsuei family history, I am unable to see their relevance to the Parents’ claim for vacant possession of the Property and/or, more importantly, to any attempt to raise any triable issue or arguable defence as to any legal right for D to remain at the Property.

47.In the D 4^th Aff, D claimed both she and the Parents regarded the Property as their home. D in the D 3^rd/4^th Affs claimed the Parents had verbally informed her of their plans to secure her future interest, and such plans had been reduced into writing in 3 handwritten notes by the Parents for her comfort. D claimed even though the Father might not fully understand her vulnerability as a single woman, the Mother worried over her future and her need to have a roof over her head. D submitted that such concern by the Mother was unsurprising since the Parents had financial resources but she did not. For easy reference, I set out in paragraphs 48-49 below the 3 handwritten notes by the Parents.

48.The D 4^th Aff claimed that according to “ [Father’s] heartfelt thought expressed verbally to [Mother] and [D] in the 4^th quarter of 2015”, the Father wrote down the Parents’ future plan as follows (“Parents’ Note”):

“父母心聲		二０一五年十一月廾三日下午三時 父母係嘉儀 [D] 親聽無誤
(一)	我們如蒙主召，安息禮簡單儀式在醫院教堂牧師主理便可，骨灰散在薄扶林基督教墳場門口的花園裡；
(二)	父母現在的資源(金)夠生活，如有病要醫治或請人服事的需要，可出售美亞美 [Property]，換兩間細屋，一間居住，一間收租作費用，請各兒女放心好了，自願探訪看顧非常歡迎，不可勉強，天父看顧！”

49.The D 4^th Aff claimed the 2 handwritten notes dated 20 January 2016 by the Mother (at 6:30pm) and the Father (at 9:15pm) (“Mother’s Note” and “Father’s Note”) reflected in writing the Parents’ genuine verbal promises to D, and D denied the Parents made such notes with reluctance:[20]

“2016年1月20日下午6時半

我如有機會賣了美亞美大廈8C [Property]，會買兩間屋，一間住，一間租給別人。用租金作生活費 [Mother’s initials] 其中一間會送給崔嘉儀 [D] 住 [Mother’s initials]”

“如果有機會，我可以將現有美亞美8C [Property] 賣到合適的價值，可以換兩間小單位，第一間收租作生活費，第二間自己住，到時嘉儀 [D] 如有需要，第二間送給嘉儀 [D] 。

父字 2016.1.19 2016.1.20 (星期三) 9.15p.m. 大寒之勘 [Father’s initials] [Father’s initials]”

50.D claimed that sale of the Property was part of the Parents’ plan contemplated under the Parents’, Father’s and Mother’s Notes (collectively, “Notes”), and she did “not want to lose the [Property] that is specified and is written in [the Mother’s/Father’s Notes]”. In the D 4^th Aff, D claimed she was getting on in years, and whilst she would not give up on the Parents who cared for her and whom she cared for, she would also not give up on “…… what the [Parents] have promised and have gifted [her]”. D claimed it was the present action, SoC and the Ex Parte / Continued Injunctions that separated her from the Parents, and affected “…… the house that [D] is going to get from her [Parents]”, so the SoC must be struck out and the Parents’ claim in the present action be dismissed so that D could “receive the house promised from her [Parents] when [the Property] is sold”. I will deal with D’s Summons in greater detail in Part VII below.

51.In the D 3^rd Aff, D claimed that since she “needs full protection over [her] inheritance” and “wants the realization of [the Parents’] assurance, promise”, and the Parents needed cash to pay various bills and to buy things they needed, such needs could be fulfilled from the substantial sale proceeds if the Property was sold. So, D in the D 2^nd Aff said if the Parents were worried about money, they could sell the Property immediately, and she would vacate the Property on the date of completion[21] whereupon the Parents would have to give her a reasonable sum for her to buy/rent another property. D worried about her safety if she were evicted from the Property, and had concern over “the assets of [D, the Father, the Mother] have, what we are going to have as written in [the Mother’s/Father’s Notes]”.

52.D exhibited to the D 5^th Aff her letter dated 10 October 2018 to F&F (“10/10/18 Letter”) for the Parents that enclosed her earlier letters dated 20 September 2017 (“20/9/17 Letter”), dated September 2018 and mailed on 15 September 2018 (“15/9/18 Letter”), and dated 9 October 2018 (“9/10/18 Letter”) together with a Chinese poem.

53.In the 20/9/17 Letter, D professed her love for the Parents, extended an invitation to them for a restaurant meal on 2 or 5 October 2017, forgave them for not trusting her despite her devotion to them for the past several decades, and hoped they would forgive her if she had upset them. She believed the Mother wished to sell the Property, and further believed her presence at the Property was the envy of her siblings’ families and relatives on the Mother’s side, so she invited the Mother to arrange for her designated agent to contact her to make arrangements for potential buyers to view the Property and she would cooperate by allowing such viewing at the weekend by appointment. “Regarding [the Parents’] willingness and intention to reward [D] one of the properties after selling the [Property], and replacing it with two properties, we have to discuss how to make it work. [D] sincerely invite [the Father] and/or [the Mother] to discuss the future plan”.

54.In the 15/9/18 Letter, D said on that day she met a well-off neighbour, who (a) wished to buy real property but who was not interested in miscellaneous building matters, (b) had bought a unit without letting it out for years, and (c) had several properties in the vicinity, and D suggested the Parents should discuss between themselves and then tell her the sale price and terms for sale for the Property,[22] and such neighbour would buy the Property without having to pay agent’s commission if the terms were acceptable.

55.In the 9/10/18 Letter, D reiterated that the aforesaid neighbour was willing to buy suitable property, and asked the Parents to name a sale price and terms of sale for the Property,[23] but if the terms of sale could not be agreed there was another potential purchaser, ie a long-time neighbour who wanted to buy a property for their younger daughter called Ada Wong but who missed out buying another unit in the Building, so D urged the Parents to seize the opportunity to directly contact such long-time neighbour by telephone as “你的今時今日想賣、套取流動資金”.

56.On the other hand, the Parents in the Father/Mother 3^rd Affs claimed that for 2 years before writing the Father’s/Mother’s Notes they suffered D’s daily mental harassment, eg D would point at them to scold them, break numerous objects, and eavesdrop on their telephone conversations with relatives. The situation worsened by the end of 2015 when apart from making a fuss during the day D would kick the bedroom door to curse them, so the Parents had poor sleep and were on the brink of mental breakdown such that the Father had to take anti-depressants and often had fainting spells. When the Parents became physically/mentally exhausted, “ [D] 處心責累地誘惑 [Parents] 寫下她提出的建議書”. D even threatened to kill the Parents, and said no one would believe their allegations about her behaviour and no one would help them. The Parents claimed that for their own safety they had no alternative (despite their unwillingness) but to write the Mother’s/Father’s Notes.

57.From the above, it was evident the Parents and D disagreed as to how the Father’s/Mother’s Notes came about as the Parents claimed (but D disagreed) they were unwilling but were reluctant to give such notes. However, for the purpose of the Parents’ Summons, I am prepared to proceed on the basis of D’s case that the Parents willingly gave the Father’s/Mother’s Notes without any reluctance.

58.I am unable to see how the Parents’ Note would give rise to any legal right on D’s part to continue to occupy/reside at the Property. First, the Parents made clear in the Parents’ Note that a sale of the Property “might” be effected only if they needed monies to pay for medical treatment and/or care needs. There was no evidence of any such need at the moment. Secondly, according to the Parents’ Note, the sale proceeds from a sale of the Property would be used to purchase 2 smaller units, one for the Parents’ own residence, and the other to be let to earn rental income to pay their expenses (ie payment for medical treatment and care needs). Quite simply, the sale proceeds from sale of the Property were stated to be for the benefit of the Parents, ie their residence and their expenses. There was nothing in the Parents’ Note about gifting anything to D. Indeed, the whole tenor of the Parents’ Note was that the Parents had sufficient assets/monies to look after themselves, and such note actually set out the intended arrangements to look after their needs during their lifetimes. This was borne out by the closing remark that “請各兒女放心好了，自願探訪看顧非常歡迎，不可勉強，天父看顧！” In my view, D’s reliance on the Parents’ Note to suggest she was entitled to reside at and/or occupy the Property was misplaced.

59.According to the Father’s/Mother’s Notes, any sale of the Property was qualified by “如有機會賣” (Mother’s Note) or “如果有機會，我可以將 [Property] 賣到合適的價值” (Father’s Note). The Parents were joint tenants of the Property, so any sale of the Property would require agreement by both of them, so the qualifications in both the Mother’s Note and Father’s Note had to be considered. Plainly, the above qualifications made clear it was up to the Parents to decide whether and when there would be any sale of the Property, and the Father made clear such sale was optional (“可以”) and not mandatory, and subject to what he considered to be an appropriate sale price. There was nothing to suggest D could dictate any sale or D had any legal right to occupy or reside at the Property pending any sale.

60.Both the Father’s/Mother’s Notes stated that upon any sale of the Property the sale proceeds would be used to purchase 2 units, one for the Parents’ occupation as their residence, and the other one was to be let to earn rental income for their living expenses. Again D did not feature in such usage of the sale proceeds of the Property, or indeed usage of the 2 units to be acquired from such sale proceeds during the Parents’ lifetimes. Since such sale proceeds were to be derived from sale of the Property, they would belong to the Parents jointly, and both of them would have to agree on their disposal, and if they were used to acquire the 2 units as aforesaid, the Parents would become joint owners thereof. According to the Father’s Note, the “gift” to D was in respect of “第二間” which was to be used for the Parents’ own occupation as their residence (“第二間自已住”), so such “gift” of the 2^nd unit was subject to 2 conditions: (a) Parents would occupy and reside at such unit during their lifetime, and (b) the “gift” was not immediate and would only materialise if “到時” D had a need, which matter was unknown at this stage. Even according to the Mother’s Note, which did not designate which unit was to be “gifted” to D, such “gift” was subject to (a) the Parents’ occupation/residence of a unit during their lifetimes, and (b) the letting of the other unit to generate rental income for the Parents’ living expenses. In my view, there was nothing in the Father’s/Mother’s Notes that gave D any legal right to reside at the Property until the date of completion of any sale and purchase of such Property. Upon service of the 22/12/16 Letter, D’s occupation of the Property became wrongful as it was without the Parents’ consent/ agreement.

61.As Ms Liu submitted, the Notes dealt with Parents’ arrangements after sale of the Property (which sale in my view could not be forced on the Parents) that were not the subject of the present action, so it was for D to pursue any claim she might have in relation to the Notes in separate legal action, but it would not amount to any arguable defence to the Parents’ demand for delivery of vacant possession of the Property.

62.But in light of D’s submissions at the Hearing, I would go further. D submitted “我無租客身份，賣樓唔關我事”, “佢賣樓同我無關”, the sale proceeds from the sale of the Property “全部俾 [Parents] 佢一個「仙」唔俾我都係佢個選擇”, “佢賣完 [Property] 鐘意幾時改變主意都得㗎，佢成日都咁講”, “佢點樣安排錢點做佢可以改變主意，但我無錢我搬唔到其他地方”, “ [Parents] 俾我一切一定要，為何 [Parents] 寫好俾我既嘢我唔要, [Mother] 俾一間樓我, 佢送俾我的禮物我點解唔要，我有需要 ……” (my emphasis), and submitted that she was a single woman who had no money and who used to live with her Parents, but the Parents were separated from her by the Ex Parte / Continued Injunctions, and her relatives also shunned her.

63.In my view, the aforesaid submissions clearly showed that all along D knew the provision in the Father’s/Mother’s Notes for giving a unit to her was nothing more than a gratuitous gift (even if it was certain and immediate which I doubt in light of D’s recognition that she had to discuss with the Parents on “how to make it work” (see paragraph 53 above)) and she was a mere volunteer, so the Parents could change their mind about the disposal of the sale proceeds of the Property and such alleged gift any time. This also showed an implicit recognition that the Parents were the legal/beneficial owners of the Property.

64.D’s understanding in the paragraphs 61-62 above was correct since as a matter of law, a promise is not, as a general rule, binding as a contract unless it is either made in a deed or supported by some “consideration”, and this limits the enforceability of such promise by a volunteer. “It follows that an informal gratuitous promise does not amount to a contract. A person or body to whom a promise of a gift is made for purely …… sentimental motives gives nothing for the promise; …… The invalidity of informal gratuitous promises of this kind can also be supported on the ground that their enforcement could prejudice third parties such as creditors of the promisor. ……”[24] In short, D had not shown any arguable basis that she could enforce any promise in her favour in the Notes. On the materials before me, there was nothing that would prevent the Parents from changing their mind and dealing with the Property, potential sale thereof and the sale proceeds in any way they now wished. Consequently, there was no arguable basis for D to press the Parents for sale of the Property as set out in the 20/9/17, 15/9/18, 9/10/18 and 10/10/18 Letters or otherwise. Quite simply, any such sale would be up to the Parents, whom D could not dictate. In any event, D failed to demonstrate any legal basis for her to remain at the Property. Her alleged impecuniosity and alleged lack of ready alternative accommodation did not amount to legal justification to dispute the Parents’ claim for vacant possession of the Property.

65.Ms Liu also added that D’s proposal to remain at the Property until the date of completion for any sale and purchase of the Property was not realistic or feasible as there was no assurance that D would definitely vacate the Property before completion, which uncertainty would put such transaction at risk to the detriment of the Parents. Whilst I can see the force of such concern, there is no need for me to consider this argument because D simply had not shown any arguable legal right to remain at the Property irrespective of any possible sale thereof.

66.I turn to other miscellaneous matters raised in D’s affidavit evidence. D claimed she was not informed of the Parents’ return to Hong Kong in the fourth quarter of 2016, but someone took advantage of her vulnerability and added a recording function to her residential telephone. D claimed she was scared/stressed in not knowing where the Parents were and in finding out the telephone had no dialing tone. It was later discovered that a “Mr Tsuei” arranged to transfer the Property’s residential telephone line to a place at Happy Valley. D claimed she still feel stressed when she learned in February 2017 that the Parents had returned to Hong Kong because they treated her as an adversary and wanted her to move out of the Property and did not enter into reconciliation with her. I am not persuaded these matters amount to any arguable/triable answer to the Parents’ claim to evict D from the Property.

67.The D 3^rd Aff claimed the Parents with their eyes wide open had found another place to stay that offered easy access to different locations, so they did not want to return to the Property and its neighbourhood. The Parents disagreed. The Father/Mother 2^nd Affs claimed that since April 2016 they moved out of the Property to stay temporarily at a hotel as they could not live with D who they feared would continue to harm them, but they (who were elderly and suffered from various ailments) could not afford to stay indefinitely at a hotel on their savings of a few 100,000s, which savings would be quickly depleted as their monthly expenses for staying at a hotel and having outside meals amounted to about $40,000. The Parents claimed if they could not recover possession of the Property (which D presently occupied) any time soon and sell it for their future living expenses, they would not be able to make ends meet. In my view and as explained above, it was not for D to dictate when, how and to whom the Parents might sell the Property (if at all), and she had not shown any arguable right to remain at the Property until such sale. In any event, D’s allegation that the Parents had found satisfactory alternative accommodation was irrelevant for this would not give rise to any legal right on her part to remain until sale of the Property or at all.

68.The D 4^th Aff claimed that since August 2017 the old Building underwent renovations, and D had to endure “the inconvenience of massive dirt, a series of negotiation with foreman, the pipe workers, the painters”, which no one (including D) would like. I am unable to see how this would give rise to any triable issue or arguable legal right for D to continue to occupy the Property until its sale.

69.D believed the Ex Parte Injunction based on the Father/ Mother 1^st Affs and Lam Aff was the result of the Parents being influenced by “organised crime” perpetrated by crime-organisers associated with the Mother’s side of the family (including Lam) and Joyce’s/Simon’s families. D questioned Lam’s motives, and urged the Parents not to fall into the trap of trusting relatives/friends/sibling who did not love them/D, who wanted to keep them and D apart with injunction orders, who manipulated them to drive D (seen as a “blocking stone”) from the Property, and who would cause extensive loss to the vulnerable Parents by getting their consent and by seizing their asset[25] and/or cash. So D asked for help from the court and the Hong Kong government (by the police) to investigate potential crimes by these people. In my view, the allegation that the Parents were manipulated by relatives/friends with a view to drive D out of the Property was nothing more than D’s surmise. It will be discussed further in Part VII below, but suffice to state here the Parents by the Father/Mother 3^rd Affs confirmed on oath they had given careful thought before they commenced the present action against D and were not influenced by others. More importantly, such speculation as to the Parents’ motives in seeking recovery of vacant possession of the Property would not translate into any legal right on the part of D to remain there.

70.D next complained that the Parents never appeared at court hearings, so the judges/masters would not know how they were. There was no merit to this argument since the Parents were not required to appear in court for interlocutory hearings. In any event, D admitted she knew from past experience the Mother did not like to enter courtrooms, and D recently learned from the Father’s former HKHS colleague that he often had meals with the Father and the Parents were healthy. In any event, these matters did not demonstrate any arguable legal right on the part of D to continue to occupy the Property.

71.For all of the above reasons, I find D had failed to raise any triable issue or arguable defence to the relief sought under the Parents’ Summons. The remaining question would be what reasonable period of time should be allowed for D to pack up her things and vacate the Property. Ms Liu suggested 14 days, which D claimed was wholly unreasonable. In my view, given (a) the familial relationship between D and the Parents, (b) the age of the Parents and their need to settle their affairs as soon as possible, and (c) D’s awareness since December 2016 that the Parents required her to vacate the Property, I find it appropriate that D should deliver vacant possession of the Property within 35 days. I therefore grant an order that D shall deliver vacant possession of the Property to the Parents within 35 days from the date of this order. There is no reason why costs should not follow event, I also grant a costs order nisi that D shall pay the Parents’ costs of and occasioned by the Parents’ Summons (including all costs reserved if any) to be taxed forthwith if not agreed.

VII.  D’S SUMMONS

72.As alluded to in paragraph 69 above, D by the D 2^nd Aff claimed the Parents told their relatives (including Lam) and friends (solicitor at F&F) about the promise made to her in the Mother’s/Father’s Notes, but these persons manipulated the Parents to sue D. D submitted these persons were envious of the Parents’ “gift” to her, but she was the natural daughter of the Parents and did not care what they thought. D claimed that since this litigation, neither Joyce/Simon nor other relatives telephoned to ask after her, which she claimed demonstrated “這群居心叵測”. D in her written submissions claimed as follows:

“我在家中發生的插曲被作惡者做謠生出HCA3388/2016一案。

(作惡在此指一班來自不同知識水平但好做謠生事，藉著他人的事大做文章，務要給他人不要不快的經歷，達至這班空虛寂寞的一群可大快地談講一場虛罔、虛謊之事。

這群一步一步建構出另一故事，簡易地有慾望地用政府資源把我，嘉儀，的生存空間擾亂，而且是分批地或重複地。

我和聲振、國珍本已有共識如何處理。)”

73.D claimed that but for the intervention of these persons who did not love her and/or the Parents the familial dispute between her and the Parents (who loved and cared for each other) could have been easily resolved without creating deep division and mistrust between them. D claimed it was inappropriate to resolve familial matters via the courts, and the Parents’ legal claim as abetted by others only served to pull them and her further apart and indirectly caused both of them further hurt, so the SoC must be struck out and the Parents’ claim be dismissed in order to prevent “一班人從中作梗，定我們倆方 (我們三人) 都生出恐懼”, and thereafter the Parents and D should try to heal their emotions and psychological mistrust through counselling by social workers. D also claimed the Continued Injunction must also be discharged as it obstructed  the Parents and D from liaising with each other, and if she were evicted from the Property the Parents would not know her whereabouts.

74.D claimed the Father’s impaired hearing, the Mother’s hurtful words that caused her harm, the Mother’s selective description of their conversations, the disrespect the Mother’s relatives showed her on their visits to the Property, and her lack of awareness of the Parents’ earnest wants/needs and vice versa all conspired to cause deep hurt between her and the Parents such that they were all victims. D claimed D’s Summons was a good way “to end these hurt on [D] and equally to the relationships on three of us”, and to give “hope to resume the vision that home shall not be disintegrated easily”. D claimed that striking out the Parents’ claim would actually afford protection to the Father, Mother and D.

75.D also exhibited a bundle of communications, eg letters, notes, messages and diary entries, amongst herself and her Parents/siblings and also between the Parents and other relatives that dated back for some years. D raised query over Joyce’s different attitude towards her and the Parents in March/April 2016, and over the letter by Simon’s wife to the Parents in June 2011.

76.On the other hand, by the Father/Mother 3^rd Affs, the Parents confirmed they had given careful thought before they commenced the present action, and they were not influenced by others. They explained the difficulties they faced in the Father/Mother 1^st Affs, and claimed to have been tolerant of D’s behaviour with a view to resolve the matter peacefully. But their patience brought even greater injury and harm to themselves, so much so they had to seek (and they eventually obtained) the Ex Parte / Continued Injunctions. With such injunctions the Parents were a bit more confident in going out, but their fear of D had not receded, and even though at times they wanted to return home to pick up some personal belongings they dared not go near the Property when they thought of D. The Parents confirmed they commenced the present action to seek the law’s assistance/protection to put an end to D’s wrongful tortious conduct and trespass to the Property.

77.D claimed the SoC and Parents’ claim were premised on false allegations and unsupported by evidence, “由於完全沒有證據，至今又不想在群內沒有面子，索性先話要錢用，要賣屋”, so they must be struck out and dismissed. D claimed she was not the person described in the Parents’ affidavit evidence, and she was sorrowful but not angry about such misdescription. But she needed vindication, and denied having ever assaulted, attacked, beaten, threatened and/or intimidated the Parents. D required the Parents to prove such allegations. D claimed the Parents’ alleged fear was imagined, and they now intentionally focused on the Property by “repeatedly re-construct the story saying it is not safe to return home” when it was in fact safe for them to return home.

78.In the D 3^rd/4^th Affs, D claimed that to her delight she ran into the Parents in the street in April 2017 after their return from their 6-month tour trip to Canada. D found the Father’s response unusual/strange and the Mother’s response rude/angry (ie when D asked the Mother when she would return home the Mother said she would not go home).[26] D claimed she was disappointed with the Mother’s attitude, but still she was happy to talk to the Mother and happy to see the Father. D claimed there was no fear/argument and the Mother was able to look into D’s eyes without fear, and then the Parents walked away without any panic. D claimed this showed the alleged fear pleaded in the SoC was not real.

79.The D 4^th Aff claimed that although the Parents repeatedly stated D spoke in a loud tone at home, it was an over-generalisation (as D only sometimes but not frequently raised her voice), and such allegation ignored the fact the Father had hearing impairment. As regards the Parents’ allegation that D shoved and punched the Father, D said the Father walked towards her, and she just stood in front of him without moving or touching him. There was no threat, and the Father exaggerated in his affidavit evidence. As for the Parents’ allegation that D abusively shouted at them to get out of the Property, D denied the same and further denied she double-locked the door of the Property.

80.As regards the Parents’ allegation that on 13 April 2016 D broke the glass of the dining table which caused them to feel distressed and frightened such that the Mother went downstairs to call her nephew Lam for assistance, D disputed Lam’s assertions in the Lam Aff and claimed it was an accident. D claimed that instead it was Lam who insisted on removing the glass of the dining table after the Mother invited him into the Property, and it was then that the glass broke into pieces, which pieces were then removed from the Property. D repeated her Defence that there was just a crack on the table with no broken glass, and she thought the Mother might prefer to clear the glass the following day (and it was not her intention to have the Mother worry overnight). D claimed Lam was a gambler who often in debt for large sums and who had to ask relatives (including D) for cash. D also complained that Lam never greeted her since May 2016, but turned up at the Building to represent the Parents in relation to the Property and even tried to take photographs and record conversations at the Building’s general meeting.

81.D denied she was ever shown the alleged letter dated 23 April 2016 by the Parents (see footnote 5 above). D questioned the Parents’ allegation of leaving “pocket money” of $8,000 for her when they returned home after “sleepover” at Lam’s rented apartment in April 2016, and suggested “pocket money” was a favourite term that the Mother coined when she gave money to Joyce, Simon, Simon’s wife (for inter alia her studies in Canada and for her father who lived in an elderly home) and Lam’s sister. D denied she said $8,000 was not enough, and claimed she had “capability, courage and strength to receive resources and to receive assets that are offered, provided and promised out of genuine caring love”.

82.D complained the Parents’ legal representatives obtained the Ex Parte Injunction on ex parte basis, so she did not know how they persuaded the judge to grant such injunction order. D said she filed the Discharge Summons to discharge the Continued Injunction that kept her and the Parents apart because she was worried about losing the Parents’ affection and her “reputation as a young lady”, but she failed as she was not allowed to adduce evidence at the hearing. D then claimed that between the filing of the Father/Mother 1^st Affs and the Father/Mother 2^nd Affs, the Mother via “her long-term fellow sister” twice indicated her wish to meet and talk to D, but was persuaded to give up by her “long-term fellow brother”, which D claimed showed the Mother missed D (and D also missed her mother), and the present action obstructed their reconciliation.

83.D also complained that F&F’s process server (who did not identify himself) was rude and intimidating (which caused disturbance and anxiety) in trying to effect service of documents on her, trying to follow her and push papers towards her, and trying to reach her by repeatedly pushing the doorbell of the Property, which conduct she believed was deliberate behaviour to inter alia delay her receipt of the Parents’ summons filed on 23 December 2016. In the D 4^th Aff, D questioned whether F&F’s process server had violated tort law or was guilty of contempt of court, but believed the Father would not sue such process server who treated her so. On the other hand, the Parents expressed doubt over D’s complaints about F&F’s process server since recent service of documents was by post or insertion into the letterbox at the Property (as D also admitted), and such service was verified by affidavits of service filed with the court.

84.D claimed she wanted to resolve the dispute with the Parents by mediation, but complained there was no goodwill from F&F who indicated the Parents would not meet her even in the presence of the mediator. There were also differences between D and F&F as to the choice of mediator which was not resolved even after half year’s effort. On the other hand, the Parents claimed they were willing to mediate, but there was disagreement over choice of the mediator. The Parents felt a good choice of mediator was important for an effective mediation, and given their age and near-exhaustion of their savings they preferred that the present action proceed without stay in tandem with any mediation.

85.In my view, D’s complaints about F&F’s process server and arrangements for mediation which did not eventuate (see paragraphs 83-84 above) had nothing to do with the issues in dispute in the present action. Whether D had any cause of action to pursue legal remedies separately in relation to such matters was irrelevant to P’s present claim against D.

86.From the above account, it was plain D queried the motives of the Parents (and others who might have influenced them) in commencing the present action against her, but the Parents asserted on oath it was their own clear intention to sue D. Then, the Parents made allegations of assault and intimidation and trespass of the Property against D, which they had verified by the Father/Mother 1^st Affs and Lam Aff. D denied such allegations in her Defence and her affidavit evidence alleging they were false evidence. Having considered the Parents’ claim as pleaded in the SoC, I am unable to say there was no reasonable cause of action. The Parents had pleaded the particulars for the alleged assault, intimidation and theats. Irrespective whether the pleaded cause of action would eventually succeed or fail at trial, on the SoC there was clearly a cause of action with some chance of success. I take note that under Order 18 rule 19(2) of the RHC no evidence shall be admissible on an application for striking out on the ground that there is no reasonable cause of action.

87.I further note that Mimmie Chan J and DHCJ Lee had seen fit to grant the Ex Parte and Continued Injunctions respectively, and Mimmie Chan J refused to discharge the Continued Injunction. One of the key criterion for obtaining an interlocutory injunction under the American Cyanamid test is for the applicant to satisfy the court that there is a serious question to be tried, and the Parents must have satisfied such criterion in successfully obtaining the Ex parte / Continued Injunctions. According to Hong Kong Civil Procedure 2019, “serious question to be tried” meant, “[all] that has to be seen is whether he has prospects of success which, in substance and reality, exists. Odds against success do not defeat him, unless those are so long that the plaintiff can have no expectation of success, and only a hope ……”[27] In my view, there was insufficient basis to suggest that the Parents’ claim had no reasonable cause of action, and D’s subjective belief otherwise did not detract from this view. On the contrary, I find the Parents had demonstrated a serious question to be tried.

88.In any event, there were serious factual disputes between the parties (see also paragraphs 25-28 above) that could not be resolved on affidavit evidence, and that must be resolved at trial upon assessment of witness veracity and documentary evidence. This was not a plain and obvious case that was liable to be struck out. D seemed to be under the impression that because she subjectively believed the Parents’ allegations were premised on what she considered to be lies and false evidence, their claim ought to be struck out. This reflected a misunderstanding of legal procedure. If there are disputes of facts between the parties, the proper venue for resolution of those contradictions and disputes is trial.

89.In light of the above analysis, I see no basis to suggest that the Parents’ claim was scandalous, frivolous or vexatious, or it might prejudice, embarrass or delay the fair trial of the action, or it was otherwise an abuse of the process of the court. In coming to this conclusion, I also take into account discussion of all matters raised by D in Part VI above.

90.Ultimately it appeared D wanted to be rid of the present claim so that, according to her, she could approach the Parents for reconciliation without interference by third parties whom she considered to be scheming individuals who wanted to make financial gain out of this, and so she could liaise with the Parents directly to sell the Property and discuss with them how her interest could be looked after upon such sale (see paragraphs 53 above) otherwise she would be left with nothing (which she did not want to happen). Whilst these might well be D’s personal sentiments, they did not constitute any sufficient reason for striking out the SoC and/or dismissing the Parents’ claim, which in my view had a viable cause of action and which the Parents intended to pursue. As explained above, the Parents’ claim could not be aborted by viewing the matter entirely from D’s subjective perspective, and in light of the multifarious factual disputes, the Parents’ remaining claims had to be resolved at trial.

91.There was also no basis to discharge the Continued Injunction as D would have me do although she had not placed formal application before this court. Hong Kong Civil Procedure 2019 stated that where an interim order has been made after an inter partes hearing, the person seeking to discharge the order is not entitled to do so as of right or to re-argue it as if it were a re-hearing. The court will generally only consider discharging an interim injunction on good grounds or due to a change in circumstances or facts coming to light that cannot reasonably have been found out beforehand.[28] Here, D did not show any change in circumstances, and she had an even more uphill task since she had applied and failed to discharge the Continued Injunction, and she did not appeal against the dismissal of the Discharge Summons. All D had shown was nothing more than a serious question to be tried, which would not detract from the vitality of the Continued Injunction.

92.In the circumstances, D’s Summons is dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that D shall pay the Parents costs of and occasioned by D’s Summons (including all costs reserved if any) to be taxed forthwith if not agreed.

VIII.  POSTSCRIPT

93.Should D require translation of this judgment into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to her at the High Court Building at a mutually convenient time.

Ms Elaine Liu, instructed by Fan & Fan, for the 1^st and 2^nd plaintiffs

The defendant, acting in person and present