Wong Yuk Tung v. Wong Po Ling (also known as Wong Po Ling Clara) and Another

CACV 296/2022

[2023] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2022

(ON APPEAL FROM HCA NO 899 OF 2012)

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Before:  Hon Kwan VP and Yuen JA in Court

Dates of Written Submissions:  28 November 2022, 30 December 2022 and 6 January 2023

Date of Judgment:  3 February 2023

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 17 November 2022, we handed down our judgment (“CA Judgment”)[1] in which we ordered the Notice of Appeal filed by the 1^st defendant on 1 August 2022 to be struck out as it appears from the grounds that this appeal is plainly not competent. The full reasons for our judgment are set out in §§13 to 20 of the CA Judgment and will not be repeated. For ease of reference, we will adopt the same terms and expressions as in the CA Judgment.

2.The 1^st defendant filed a Notice of Motion on 25 November 2022 seeking leave to appeal from the CA Judgment to the Court of Final Appeal. In the event leave to appeal is granted, she seeks a stay of execution of the orders and costs orders of the 2016 Judgment[2], the judgment and orders of the Accounts Judgment[3], and the costs order of this appeal being CACV 296/2022.

3.Both parties have lodged written submissions in respect of the Notice of Motion. Having considered the papers, we think it is appropriate to determine the Notice of Motion on the basis of the existing materials without an oral hearing and proceed to do so.

4.These two questions to be raised in the intended appeal are stated in the Notice of Motion and said to be of “general public interests conforming to section 22” of the Hong Kong Court of Final Appeal Ordinance, Cap 484:

(1)  “Could title and interest of charge/mortgaged properties be transferred in a verbal agreement?”

(2)  “What the Real Estate Loan of $2 million stated in paragraph (1) of the SPC Facility Letter dated 24 May 1997 was, if the Real Estate Loan was construed by the courts:

i.  not a consideration paid to the Plaintiff for his 50% share of interest (as declined by the Recorder) and was different from $4.95 million stated in paragraph 11(a) for the entire 100% interest of the Kam Fai Mansion Properties;

ii.  not an interest bearing loan from the 1^st Defendant to the Plaintiff, as declined by Master in Account Taking;

iii.  not a gift from the 1^st Defendant to the Plaintiff or vice versa …”

5.The 1^st defendant’s application is entirely misconceived.

6.It has already been decided in the 2016 Judgment that there has been an express common intention, agreement or understanding between the plaintiff and the 1^st defendant that the plaintiff should remain the beneficial owner of the Kam Fai Properties which the 1^st defendant held on constructive trust for the plaintiff[4]. The 1^st defendant’s case that she took out the SPC Loan for the payment of consideration in the sum of $2,000,000 for the plaintiff’s interest in the Kam Fai Properties had also been rejected in the 2016 Judgment[5].

7.As rightly pointed out by the plaintiff’s solicitors, regarding the two questions in the Notice of Motion, it is the 1^st defendant’s contention that the Recorder was wrong in ruling that there was an unambiguous express verbal agreement between the parties that the plaintiff remained the beneficial owner of the Kam Fai Properties and that the 1^st defendant was advanced $2 million of the SPC Loan. By these contentions made in support of the questions, it is obvious that the 1^st defendant raised the questions to seek to overturn the rulings in the 2016 Judgment. As the 1^st defendant has no right to appeal against the 2016 Judgment as mentioned in the CA Judgment, it is untenable that leave to appeal should be granted to seek the Court of Final Appeal’s determination on these questions, not to mention that the 1^st defendant failed to establish that these questions would involve any great general or public importance which ought to be submitted to the Court of Final Appeal for decision as required under Section 22(1)(b) of the Ordinance.

8.In contending that the Court of Appeal was wrong to conclude whether and how much of the SPC Loan had been used for the plaintiff’s benefit is a matter of the account taking exercise, the 1^st defendant submitted that the Recorder and the Court of Appeal were wrong in delegating the core issue (ie whether the SPC loan was consideration paid to the plaintiff) in a formal trial to the master in the account taking hearing. Her submission is to no avail, as her claim that the SPC loan was consideration paid to the plaintiff had been rejected by the Recorder in the 2016 judgment. The rest of her arguments all concern, directly or indirectly, the findings in the 2016 Judgment. As she has no right to appeal the matters adjudicated in the 2016 Judgment, she has no right to seek the court’s consideration of these arguments and leave to appeal would not be granted based on any of these arguments.

9.For the above reasons, the 1^st defendant has failed to meet the threshold requirements under Section 22(1)(b) of the Ordinance. There is no other reason that the intended appeal should be submitted to the Court of Final Appeal for decision. We therefore dismiss the Notice of Motion. As leave to appeal is not granted, her application for stay of execution is also dismissed.

10.Costs of this application should follow the event. We make a costs order nisi that the 1^st defendant is to pay the plaintiff’s costs of this application, to be summarily assessed on paper. We also order the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations. If no summons is taken out by any party to vary the order nisi within 14 days from the date of this judgment, the costs order nisi will be made absolute.

11.We direct the plaintiff’s solicitors to lodge a statement of costs within 14 days from the date of this judgment and the 1^st defendant may lodge her response within 14 days thereafter if she wishes to object to any item of costs.

Cedric Yeung & Co, assigned by the Director of Legal Aid, for the Plaintiff (Respondent)

The 1^st Defendant (Appellant), acting in person