Ng Nim Chung, Deceased and Another v. Ng Wing Man Terry

HCA 2221/2016

[2022] HKCFI 2670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2221 OF 2016

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BETWEEN

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Before:  Deputy High Court Judge Leung in Chambers (By Paper Disposal)

Date of the 1^st and 2^nd Plaintiffs’ Written Submissions:  20 May 2022

Date of the Defendant’s Written Submissions:  23 May 2022

Date of Decision:  31 August 2022

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DECISION

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1.The 1^st plaintiff and the 2^nd plaintiff are respectively the late father and the mother of the defendant. The 2^nd plaintiff claims on behalf of her late husband’s estate and herself. Before the trial of this case commenced in 2021, the defendant from abroad wrote to seek adjournment of the trial of this action without a formal application, which this court refused after hearing the plaintiffs on the first day of the trial. The plaintiffs therefore proceeded with the trial in the absence of the defendant. This court found that the claim was proved, and entered judgment against the defendant. The defendant subsequently formally applied and this court set aside the judgment on terms. The plaintiffs now seek to appeal against the decision to set aside the Judgment.

Background

2.The reasons for allowing the plaintiffs to proceed with the trial on 16 August 2021 were given in court, which was also reduced into writing (“the 16/8/2021 Decision”).

3.The written judgment after the trial in the absence of the defendant was handed down on 27 August 2021 (“the Judgment”).

4.The defendant then caused his summons to be filed on 2 September 2021 for setting aside the Judgment, fixing however a hearing for 3 minutes.  At the scheduled hearing on 28 October 2021, this court adjourned the summons and gave direction for its disposal on paper only.

5.Considering the written submissions of the parties, this court handed down on 8 March 2022 the decision setting aside the Judgment on terms (“the 8/3/2022 Decision”).

6.By summons dated 22 March 2022, which was filed on 12 April 2022 (after the then general adjournment period), the plaintiffs seek leave to appeal against the 8/3/2022 Decision.  After consulting the parties, this court adjourned the summons for disposal on paper only.

7.For the present purpose, this court will not repeat what has been set out in the various decisions mentioned above, save where appropriate, references would be made to the specific parts of them.  The same definitions and abbreviations are adopted as before.

Circumstances surrounding the various decisions

8.For reason that will be explained in due course, this court considers that it is necessary to highlight the circumstances surrounding in particular the 16/8/2021 Decision and the 8/3/2022 Decision.

9.For the purpose of the defendant back in August 2021, a formal application for adjournment supported by evidence on oath would have been expected.  There was none.  This court nevertheless considered the defendant’s request in the absence of evidence verified on oath.  Apart from the observations made about the circumstances appearing at the time, this court noted areas in respect of which the defendant failed to satisfy this court by evidence, let alone that verified on oath.  Put in such position at that point of time, this court found that it was only just to conclude, as mentioned in §21 of the 16/8/2021 Decision, that the defendant failed to discharge his burden to satisfy the court that he had taken all the necessary steps to enable his attendance at the trial.  The plaintiff was therefore allowed to proceed with the trial pursuant to O35, r1(2).  Effectively this court refused to adjourn the trial.

10.The trial then proceeded in the defendant’s absence.  The 2^nd plaintiff and her witnesses gave evidence as per their statements.  Accepting such evidence as inherently credible and not contradicted, this court found on the balance of probabilities that the plaintiffs have proved their case (see §§61; 65 of the Judgment).  Judgment was therefore entered against the defendant.

11.The defendant resumed his legal representation for the purpose of his application to set aside the Judgment.  Submissions were lodged on his behalf by counsel.  This court expressly noted (in §6 of the 8/3/2022 Decision)  that he did not seek to challenge the 16/8/2021 Decision in allowing the plaintiffs to proceed with the trial.  Nor did the plaintiffs take issue, though the significance of that is now reflected in the submission on their behalf now for leave to appeal against the 8/3/2022 Decision, as explained below.

12.Back to the defendant’s application to set aside the Judgment.  In support of his application, the defendant filed affirmations in support.  They served to verify on oath the matters already advanced in support of his request for adjournment of the trial back in 2021.  They also served to exhibit documentary proof of some of those matters, which this court found to be lacking then.  As noted by this court (§15 of the 8/3/2022 Decision), the defendant effectively sought to better his explanation and evidential support.  That said, also noted (§11 of the 8/3/2022 Decision)  was that those parts of his affirmations that purported to respond to this court’s observations and findings by reference to evidence never disclosed in this action before were illegitimate and therefore disregarded.

13.There was, and still is, no dispute as to the applicable principles and the factors to be taken into consideration in determining whether or not to accede to an application to set aside the Judgment pursuant to O35, r2: see Chiu Tin Yau Lesley v Dickson Ng, HCA 105/2004 (19 March 2021).  For reasons set out in the 8/3/2022 Decision, this court acceded to the defendant’s application.

Leave to appeal necessary?

14.In their summons, the plaintiffs raise the issue of whether or not leave to appeal against the 8/3/2022 Decision is necessary. They seek leave insofar as leave is necessary.  This depends on whether the 8/3/2022 Decision constituted an interlocutory decision.

15.The starting point of section 14AA(1)  of the High Court Ordinance, Cap 4, coupled with O59, r21(1)(a)  of the RHC, is referred to.  The issue is addressed by the defendant but not really by the plaintiffs in counsel’s submissions.  The fact was that neither side has ever taken issue as to the court procedure adopted in the defendant’s application or the determination by this court of that to set aside the Judgment.  On this basis, neither side has ever pointed out to this court that the application was not or should not have been proceeded with as an interlocutory application, albeit after judgment.  This court will likewise proceed on the same basis, and hence the need for leave to appeal against such decision.

Grounds of appeal

16.As mentioned, the relevant factors referred to in the 8/3/2022 Decision (§7)  are not in dispute.  The plaintiffs see error in how this court took those factors into consideration in the circumstances of the present case.  As it was the exercise of this court’s discretion in arriving at the 8/3/2022 Decision, the plaintiffs acknowledge the stringent test for the appellate court to intervene, namely that this would happen only where this court has failed to take into account relevant factors or has taken into account irrelevant factors or that this court was plainly wrong in arriving at the conclusion that no reasonable tribunal would have arrived.

17.This court has considered both sides’ written submissions.  For reasons explained below, it would not be necessary to deal with the grounds of appeal one by one.  This court sees a key consideration which may suffice to cause the appellate court to take a different view of the matter from that of this court, and the plaintiffs’ criticisms about how an individual factor was considered by this court would be instances of the implication of this key consideration.  This explains why this court found it necessary to set out the circumstances surrounding the various decisions of this court above.

18.This is not a case where the defendant simply did not show up at the trial, and the court allowed the plaintiffs to proceed in his absence.  Albeit without a formal application, the significance of which as mentioned cannot be understated, this court considered the representation of the defendant and heard the plaintiffs before arriving at the 16/8/2021 Decision on the first day of the trial.  That was a ruling on the issues of adjournment and an order under O35, r1 between the parties.

19.For the purpose of his application to set aside the Judgment, the defendant effectively sought to better his explanation and evidence in support, now verified on oath, for, amongst other things, his absence from the trial.  In substance, the defendant managed to do so partly, whilst some aspects of his personal circumstances and his approach in the entire matter remained unsatisfactory.  This court’s observations were set out in the discussion section of the 8/3/2022 Decision.

20.Where the defendant never sought to challenge the 16/8/2021 Decision, the defendant’s explanation and evidence adduced for the purpose of the application to set aside the Judgment should serve to alter the adverse observations and conclusion of this court to the defendant only insofar as they went to establish material change in circumstances in his favour.

21.On this basis, this court can understand the plaintiffs’ argument that this court ought not to have considered altering its adverse observations and conclusion already made against the defendant unless the defendant managed to discharge his heavy burden not only because of the test in Chiu Tin Yau but also in the specific circumstances surrounding the defendant’s application.  This also reflects, as mentioned above, the significance of the 16/8/2021 Decision being left intact and against the defendant whilst the defendant sought to set aside the Judgment.

22.The above could be fundamental.  For that, this court sees the reasonable prospect of the plaintiffs in convincing the appellate court to take a view that the discretion in the defendant’s application to set aside the Judgment should be exercised differently from how this court approached that at the time.

23.Incidental to the above is the question of whether or not the Judgment was at all impeachable pursuant to O35, r2 whilst the 16/8/2021 Decision, whereby adjournment was effectively refused, is not challenged.  This may be said to be an issue of principle which in the interest of justice should also be placed before the appellate court for consideration.

Order

24.Leave to appeal is granted.  The plaintiffs do file and serve the notice of appeal as per the draft attached to their summons within 7 days.  Costs of the present application be in the cause of the appeal.

Written submissions by Mr Kerby Lau, instructed by Hampton, Winter and Glynn, for the 1^st plaintiff and 2^nd plaintiff in her personal capacity

Written submissions by Mr Kerby Lau, instructed by Hampton, Winter and Glynn, assigned by Director of Legal Aid, for the 2^nd plaintiff in her capacity as the administratrix of the estate of the 1^st plaintiff

Written submissions by Mr Tony Ko and Ms Michelle Lin, instructed by Jackson Ho & Co, for the defendant