But Wai Sum v. But Wai Keung

HCA 244/2012

[2022] HKCFI 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 244 OF 2012

________________________

________________________

____________________

DECISION

____________________

1.On 23 December 2021, I handed down a judgment (“the Judgment”) in which I declared that D is the sole beneficial owner of the TM Property and made some consequential orders. By a summons dated and filed on 20 January 2022 (“the Summons”), P applies for the following:

(1)  leave to appeal against the Judgment out of time (“the Leave Application”); and

(2)  stay of execution of the Judgment pending the outcome of the appeal (“the Stay Application”). 

This decision should be read together with the Judgment.  For ease of reference, the abbreviations used in the Judgment are adopted herein.

2.The counsel and the solicitors representing P in this hearing are not those representing him in the trial.  In other words, P is represented by a new legal team in this hearing.

Leave Application

3.The Judgment is a final judgment given by this court after trial, and P may lodge an appeal against the judgment as of right within 28 days from the date of the Judgment.[1]  Lodging an appeal means serving a notice of appeal on D.[2]  The 28-day period ended on 20 January 2022.  That would mean that on or before 20 January 2022, P may lodge an appeal against the Judgment as of right by serving a notice of appeal on D.  However, this has not been done by P.  Instead of serving a notice of appeal on D at a time on or before 20 January 2022, P (with advice and assistance from his new legal team) chose to issue the Summons on 20 January 2022.  It is puzzling why P would adopt this route.

4.As the matter now stands, P has not commenced an appeal within the 28-day period prescribed in Order 59, rule 4(1)(c).  Accordingly, P may only lodge an appeal if leave to appeal out of time is given by the court.

5.It is trite that as a matter of principle, no extension of time should be granted in respect of hopeless appeals.[3]  For the reasons set out below, I am of the view that the intended appeal is a hopeless appeal.  Accordingly, no extension of time should be granted.

6.The grounds of appeal set out in [2] of the Summons are as follows:

“(a) At the trial, the learned judge demonstrated bias and partiality against the plaintiff: -

(i) The learned trial judge entered into the arena and conducted defendant’s cross-examination of the plaintiff on behalf of the defendant. The learned judge cross-examined the plaintiff for days and with hundreds of questions.

(ii) The learned trial judge, inconsistent with his finding that it had been the defendant who had requested the plaintiff to be the registered owner of the TM property, erred in making an order that the plaintiff should pay costs of conveyance with regard to transferring the title back to the defendant; and

(iii) The learned trial judge erred in law in allowing the defendant to engage counsel to reopen cross-examine of the plaintiff again.

(b) At the trial, Counsel for the plaintiff erred in: -

(i) not objecting to the judge’s cross-examination (on behalf of the defendant) of the plaintiff;

(ii) failing to seek leave to produce plaintiff’s bank passbook which had entries to show it was the plaintiff who had paid the mortgage repayment instalments with regard to the TM property and paid off the principal;

(iii) failing to object to counsel for defendant to re-open cross-examination of the plaintiff.

(c) In all the circumstances, the plaintiff had an unfair trial.” 

7.With respect, none of these grounds has merit.

8.As to Ground 1:

(1)  The test for determining the appearance of bias, as said by the Court of Final Appeal in Deacons v White & Case [4], is as follows:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

(2)  In respect of the first point under Ground 1, P’s complaint is that in the hearing on 22, 23 and 24 March 2021, I have “entered into the arena and conducted the defendant’s cross-examination of the plaintiff on behalf of the defendant”, and I have “cross-examined the plaintiff for days and with hundreds of questions”.  With respect, I am unable to accept this submission.

(3)  By looking at the transcripts, what has been alleged by P is not the truth.  In March 2021, D was acting in person and he conducted the cross-examination of P.  Some of the questions asked by D were unclear or improper.  D sometimes tried to refer to documents which were not in the trial bundles.  D also made comments from time to time during his cross-examination.  At certain points of time, D also became emotional.  In these circumstances, I had to intervene sometimes to make sure that the cross-examination was conducted in an orderly manner.  However, it was D conducting the cross-examination of P.  In my view, it is not arguable that I have entered the arena and conducted the cross-examination of P as if I were counsel for D.

(4)  In respect of the second point under Ground 1, for the sake of discussion, even assuming that I erred in requiring P to pay the conveyancing costs[5], it would be a quantum leap to say that because of this error, I have “demonstrated bias and partiality against the plaintiff”.  That a judge may have erred in one aspect of his judgment does not mean that he has demonstrated bias and partiality against the unsuccessful party.

(5)  For the sake of completeness, I should also say that the second point under Ground 1 only concerns the conveyancing costs mentioned in [107(3)] of the Judgment.  In any event, P cannot rely upon this point as a ground for an appeal against the judgment declaring that D is the sole beneficial owner of the TM Property and requiring P to transfer the legal title and to hand over all the title deeds in his possession to D.

(6)  As to the third point under Ground 1, I have explained why I allowed D’s application for leave to reopen the cross-examination of P.[6] P has not explained in what way it can be argued that I have erred in the exercise of my discretion in allowing that application.

9.As to Ground 2, P is merely saying that he did not have a fair trial because of the incompetency of the counsel representing him in the trial (“P’s trial counsel”).  With respect, this ground is unarguable.

(1)  In Cheung Yiu Wing v Celestial Asia Securities Holdings Ltd[7], Le Pichon JA said:

“8. …… [counsel] seemed quite unable to grasp the elementary principle that had there been any fault or blameworthiness on the part of [the plaintiff’s former solicitors] in failing to call potential witnesses, his client’s remedy lay in proceedings in negligence against [the former solicitors] and not in an order for a retrial. The court system would grind to a halt if an unsuccessful litigant could obtain an order for a retrial on the basis that relevant evidence could have been obtained with reasonable diligence but had not been adduced at the trial, not to mention the injustice of depriving the successful party of a judgment in his favour after a full trial.”

(2)  Cheung Yiu Wing was applied by me in Progetto Jewellery Co Ltd v Lau Chiu Ying and Another[8], in which I said at [5(4)]:

“An appellant cannot succeed in a civil appeal by pointing to any fault or blameworthiness on the part of the legal team representing him at the trial. His remedy lays in proceedings in negligence against the legal representatives and not in an order for a retrial. The court system would grind to a halt if an unsuccessful litigant could obtain an order for a retrial by relying upon the negligence of his own legal representatives, not to mention the injustice of depriving the successful party of a judgment in his favour after a full trial.”

(3)  What I have said in the Progetto case has been expressly endorsed by the Court of Appeal. See [2021] HKCA 604, [20]. 

(4)  In the Court of Appeal’s judgment in the Progetto case, Lam VP (as he then was) did not say that flagrant incompetence of counsel could be a ground of appeal in civil litigation.  The learned judge merely mentioned that even assuming that such a ground could be relied upon in a civil litigation, the intended appellant in that case had failed to demonstrate an arguable ground by cogent evidence.  See the CA’s judgment, [25] to [29].

(5)  The principle laid down by the Court of Appeal in the Cheung Yiu Wing case has been applied by me and reaffirmed by the Court of Appeal in the Progetto case.  The Court of Appeal is bound by its own previous decision unless that decision is plainly wrong.[9]   I do not see any argument suggesting that the principle laid down by the Court of Appeal in the Cheung Yiu Wing case and reaffirmed by the Court of Appeal in the Progetto case is plainly wrong.

10.To be fair to P’s trial counsel, I should mention that in the trial, P’s trial counsel has objected to D’s application for leave to re-open the cross-examination of P.  After hearing the submissions, I allowed D’s application.

11.Since there is no merit in both Ground 1 and Ground 2, there is nothing in Ground 3.

12.Apart from the grounds set out in the Summons, P has put in further grounds in [7] of the written submissions of his counsel dated 26 January 2022 in support of the intended appeal:

“a. the cheque stubs (see [Trial Bundle D-1/810-957]) cannot corroborate the defendant's evidence;

b. when these cheque stubs are put alongside the entries in the plaintiff's H.K. Bank repayment schedule (See [C-2/554]), this assertion of the defendant no longer holds any water.[10]

c. regarding Copy Wing Hing Hangbag Mrf Co. List of Employees record as found by the trial judge (see [A/657-658]), Plaintiff’s trial counsel failed to ask the trial judge not to attach any weight to this document.

d. Also, plaintiff’s counsel failed to draw the learned trial judge’s attention to the Land Search on the TM Property (see [C-2/594-603]) which shows defendant had never provided a guarantee for the mortgage loan and/or if the defendant had been allowed to act as a guarantor, the defendant would not have been required to make the plaintiff the legal owner, he could have been registered as legal owner and obtained the same mortgage loan.”

13.With respect, there is also no merit in these further grounds.

(1)  As to point (a), it is not understood in what way the cheque stubs cannot corroborate with D’s evidence.  Further, the alleged inconsistence between the cheque stubs and D’s evidence has not been put to D during cross-examination.  In the circumstances, P would not be allowed to rely upon the alleged inconsistency in support of his case. 

(2)  As to point (b), it is not understood how the repayment schedule identified by P’s counsel (“the repayment schedule”) can contradict the analysis made in [46] of the Judgment.  All the mortgage repayments as per the repayment schedule are repayments in 1997, 1998 and 2005.  The analysis made in [46] of the Judgment concerns the cheque stubs in 1991, 1992 and 1995.  It is plain and obvious that the repayment schedule and the cheque stubs cover different periods of time.  In any event, if there is any inconsistence between the repayment schedule and the cheque stubs, the alleged inconsistency has not been put to D during cross-examination.  That being the case, P would not be entitled to rely upon the alleged inconsistency (if any) to support his case.

(3)  As to point (c) and point (d), these are criticisms against P’s trial counsel.  For the reasons set out in [9] above, P cannot rely upon these criticisms in support of his intended appeal.

(4)  For the sake of completeness, I would also say that a personal guarantee is an instrument by which a personal liability owed by the guarantor to the bank is created.  The bank cannot have any interest in land by virtue of the personal guarantee.  A personal guarantee is not an instrument affecting land and is not a registrable document under the Land Registration Ordinance.

14.For the reasons above, the intended appeal is hopeless.  I would dismiss the Leave Application.

Stay Application

15.The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay.  If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.^[11]

16.Since the intended appeal is hopeless, the Stay Application must also be refused.

Deposition

17.I dismiss the Summons.  Counsel for D seeks costs of the Summons on an indemnity basis.  In my view, while costs should follow the event, there is insufficient reason in support of indemnity costs.  Although the intended appeal is unmeritorious, without anything more, indemnity costs cannot be justified.  I order that costs of the Summons be paid by P to D forthwith on party and party basis, and those costs be summarily assessed at HK$80,000.

18.I thank counsel for the assistance rendered to the court.

Mr Luiz Augusto Alves Da Silva Pedruco, instructed by A Lee & Partners, for the plaintiff 

Mr Vincent Li, instructed by K B Chau & Co, for the defendant