Ng Chung Ying Daydes v. Tang Man Kit Otherwise Known As Tang Man Kit, Terry and Another

HCMP 1439/2021

[2023] HKCFI 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1439 OF 2021

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D E C I S I O N

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1.For background of the matters I refer to my Decision handed down on 29 July 2022. I adopt the same terms as used there.

2.There are 2 summonses before this Court:

(a)  P’s Summons of 6 October 2022 (“P’s Conversion Summons”) for an order that the proceedings begun by the OS herein be continued as if begun by writ, and consequential directions; and

(b)  Ds’ Summons of 11 October 2022 (“Ds’ Summons”, and together with P’s Conversion Summons, the “Summonses”) for an order that the OS be determined forthwith, and that P’s Conversion Summons shall be heard at the same time during the substantive hearing of the OS.

3.The Summonses first came before Master Kent Yee on 17 October 2022. Having heard parties, the learned Master ordered and directed that the Summonses be adjourned to a date to be fixed before this Court “for directions with one hour reserved”.

4.The Summonses have since been fixed before this Court. As can be seen from the correspondence between parties, this hearing has been understood and prepared as a direction hearing. I note in this regard the letter of 31 October 2022 from P’s legal advisers proposing that P’s Conversion Summons be adjourned before this Court for hearing with 3 hours reserved, and that if Ds did not agree, there would be “no reason to disturb the order made by Master Kent Yee”, and that “parties can and should attend the Registry to fix a date for argument … for directions (with one hour reserved)…”.

5.In Ms Eu’s written submissions filed and served on 30 January 2023, Ms Eu being together with Mr Nelson Miu, counsel appearing for P, P’s intention to have P’s Conversion Summons substantively argued and heard this morning was for the first time made known.

6.Mr Ernest Wong for Ds objects. He complains that there has been an “ambush of justice”. He informs this Court that given Master Yee’s Directions and parties’ understanding, Ds’ legal team and counsel have not been retained or briefed for full argument. Mr Wong is not suggesting that Ds have been ambushed in relation to P’s intention to seek a conversion, as Ms Eu has suggested. He is complaining that Ds have been ambushed in relation to the nature of this hearing. I note that Mr Ronny Wong SC acted for Ds on the last occasion when the matter was before this Court. Mr Wong confirms in his written submissions that Senior Counsel will be briefed for the substantive hearing of the Summonses.

7.Given the directions given by Master Yee, parties’ prior understanding of the nature of this hearing, and that even P’s own solicitors as recent as 11 January 2023 when preparing the hearing bundle described today as a “direction hearing”, I am of the view that it is fundamentally unfair for P to only on 30 January 2023 and with no prior notice seek to convert this hearing into a substantive one. I refuse to accede to P’s invitation to do so.

8.The next question is how the Summonses should be proceeded with.

9.If P’s Conversion Summons is allowed, Ds’ Summons will in effect be superseded and no longer be engaged. On the other hand, if P’s Conversion Summons is refused, hearing of the OS will proceed.

10.I should not pre-empt the result of either of the Summonses.

11.It can result in a wastage of resources, time and costs if the Summonses are to be listed for 2 days, argued and heard together, when depending upon this Court’s views on P’s Conversion Summons, those submissions made in relation to Ds’ Summons might no longer need to be considered.

12.I have considered Mr Wong’s submissions to the contrary, including the suggestion that P has had a try-on before this Court when he unsuccessfully sought interim appointment of receiver, what his then counsel told this Court during those hearings, and the need for a speedy resolution of the matter. However, those matters have in my view insufficient weight in justifying, in the context of case management consideration, hearing the Summonses out of sequence, and the potential wastage of costs and resources as explained above.

13.I therefore direct that P’s Conversion Summons be set down to be heard before this Court, with 3 hours reserved. Ds’ Summons will be adjourned to a date to be fixed for substantive argument, not before the resolution of P’s Conversion Summons. Further directions for the conduct of Ds’ Summons will be handed down either at the time of the hearing of P’s Conversion Summons, or when the Decision for which is handed down.

14.Having heard parties, I further direct that parties shall within 28 days from the date hereof agree upon a Scott Schedule setting out all pending actions which may bear upon the resolution of this action, with particulars on the causes of actions respectively pleaded and relief respectively sought. I leave it to the professional judgment of the parties as to whether the pleadings of those actions may need to be placed before this Court.

15.I order that the costs of today be reserved.

Ms Andrey Eu SC leading Mr Nelson Miu instructed by Liu, Choi & Chan, for the Plaintiff

Mr Ernest WONG instructed by Shum Wong & Co, for the 1^st and 2^nd Defendants