Yuen Kwok Leung Eric and Another v. Ming Chor Pao By Her Guardian Ad Litem Chu Kwok Kee Kookie and Another

CACV 36/2020

[2023] HKCA 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 36 OF 2020

(ON APPEAL FROM HCA 1637 OF 2015)

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(By Originating Writ)

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(By Order to Carry On of Master S Lo dated 2 November 2017)

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J U D G M E N T

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

The application

1.On 19 April 2021, this Court (Lam VP and Chu JA)[1] handed down our judgment[2] striking out the 2^nd defendant’s appeal against the judgment of Deputy High Court Judge Ambrose Ho SC (“the Judge”) given on 20 December 2019 in the trial of HCA 1637/2015 as being vexatious and an abuse of process. We also ordered the 2^nd defendant to pay the plaintiffs the costs of the appeal summarily assessed at HK$90,000.

2.By a notice of motion filed on 7 March 2023 together with an affirmation made on the same day, the 2^nd defendant applies for leave to appeal our judgment to the Court of Final Appeal.

3.The application is opposed by the plaintiffs. Pursuant to directions given by the Registrar of Civil Appeals, the 2^nd defendant and the plaintiffs have filed written submissions.

4.Having considered the papers and the written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the 2^nd defendant’s application on the basis of the documents in the case and the parties’ written submissions.

Background

5.The background to this appeal and the litigation history leading to the order striking out the appeal have been set out in our judgment. We will only highlight some of the matters that are directly relevant to the present application. They are:

(1)  The core issue in the trial of the counterclaim before the Judge was whether the 2^nd defendant had the necessary locus to pursue the counterclaim, which was to enforce a sale and purchase agreement dated 27 March 2015 (“SPA”) made between the plaintiffs as purchasers and Madam Ming Chor Pao (“Madam Ming”), acted by the 2^nd defendant pursuant to her Enduring Power of Attorney dated 15 January 2014 (“EPA”), as vendor.

(2)  Madam Ming passed away on 21 November 2016 before the trial which took place in December 2019. Chu Kwok Kee, Kookie (“Kookie”) was appointed to represent Madam Ming’s estate. Kookie and the 2^nd defendant are the sons of Madam Ming.

(3)  At the start of the trial, the plaintiffs and Madam Ming’s estate acted by Kookie reached a settlement, as a result of which the plaintiffs withdrew their claim against the 2^nd defendant. The 2^nd defendant however persisted in pursuing the counterclaim to enforce the performance of the SPA and to compel the plaintiffs to pay the balance of the purchase price.

(4)  The Judge dismissed the counterclaim, holding that the 2^nd defendant has no locus to enforce the SPA. The Judge also held that the requisitions of the plaintiffs had not been adequately answered by the solicitors acting for Madam Ming and that good title was not shown, nor could it be given, on the date of the completion.

(5)  The 2^nd defendant appealed the Judge’s judgment in this appeal. In our judgment, we struck out the appeal on the grounds that: (a) the 2^nd defendant has defaulted in complying with Order 59 rule 5(1)(a) of the Rules of the High Court, Cap. 4A; (b) it is plain and clear that the 2^nd defendant has no locus to pursue any counterclaim based on the SPA on behalf of Madam Ming after her demise; and (c) it is plain and obvious that the appeal is thus frivolous and vexatious and an abuse of process.

Delay

6.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. The time for the 2^nd defendant to apply for leave to appeal against our judgment expired on 17 May 2021. His notice of motion is thus late by almost 22 months.

7.Under section 24(5) of the Ordinance, the Court of Appeal may extend the time for the filing of a notice of motion. In considering whether to extend the time, we will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the intended application; and (4) the prejudice to the other parties if time was extended.

8.The 2^nd defendant’s delay of nearly 22 months is a very serious delay. In essence, the 2^nd defendant explained that he was residing in mainland China, he had not received Covid-19 vaccination, and because of the Covid-19 prevention and quarantine measures adopted in the Mainland and Hong Kong he could not return to Hong Kong and would not have been able to enter court premises to file documents or attend hearing.

9.We note from the case file that the 2^nd defendant had by a letter dated 3 May 2021 to the Registrar of Civil Appeals stated that he intended to “object to the judgment made by the Court of Appeal on 19 April 2021” and attached a notice of intended application for leave to appeal. By letter dated 18 May 2021, the Registrar of Civil Appeals drew the 2^nd defendant’s attention to section 24 of the Ordinance, and pointed out that he should file and serve a notice of motion if he wished to appeal our judgment and that, if necessary, he should seek legal representation, or he should make the necessary arrangements to return to Hong Kong.

10.Until the filing of the notice of motion on 7 March 2023, the 2^nd defendant had taken no further step in these proceedings. He had not applied for an extension of time to apply for leave to appeal. The 2^nd defendant has also not shown that he had sought legal representation or assistance or made any endeavour to return to Hong Kong. In these circumstances, we do not accept that the 2^nd defendant has satisfactorily explained his long delay. This being the case, he has to demonstrate that his intended application for leave to appeal has a real prospect of success.

Merits of the intended application

11.As to the merits of the intended appeal, section 22(1)(b) of the Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

12.The notice of motion did not set out the grounds relied on for the application. In his written submissions, the 2^nd defendant raised the following grounds:

(1)  It was unfair that the judgment was made at the hearing on 19 April 2021 in the 2^nd defendant’s absence. (“Ground 1”)

(2)  In the sale under the SPA, the 2^nd defendant acted with authority given by the EPA, which has been registered with the Registrar of the High Court and the Lands Registry and is prima facie valid. (“Ground 2”)

(3)  It is the plaintiffs’ fault in choosing not to complete the sale. The 2^nd defendant had produced three medical reports showing that Madam Ming was mentally sound and capable around 11 October 2013 until 10 April 2014. (“Ground 3”)

(4)  This Court’s judgment is unacceptable in that: (a) the interpretation that no good title was given to the property sold was wrong as the SPA was lawfully executed since Madam Ming was mentally capable and sound in creating the EPA, which was duly witnessed by medical practitioner; and (b) the medical certificates filed by the 2^nd defendant proved that Madam Ming was mentally capable and sound when executing the EPA. (“Ground 4”)

(5)  The plaintiffs had previously through their former solicitors’ letter dated 21 February 2019 offered to settle the case. It was not accepted by the 2^nd defendant because the probate action was pending. (“Ground 5”)

13.For the reasons set out below, we are of the view that these grounds are untenable and have no merits:

(1)  Ground 1

The 2^nd defendant is clearly mistaken in thinking that the judgment of 19 April 2021 was made after an oral hearing. As a matter of fact, this Court dealt with the plaintiffs’ summons to strike out the appeal on the basis of the papers without holding an oral hearing: see [18] of the judgment. The 2^nd defendant had lodged written submissions on the summons, which had been considered by this Court: see [17] of the judgment. There is no merit in this ground.

(2)  Grounds 2 to 4

(2.1)  The core issue in the trial and in this appeal is whether the 2^nd defendant has locus to bring the counterclaim to enforce the SPA on behalf of Madam Ming. As pointed out in our judgment (at [25] to [31]), it is plain and clear that he does not have the locus because (a) upon the death of Madam Ming, the 2^nd defendant’s authority under the EPA ceased; (b) by the representation order made by Master Lo (which was upheld by B Chu J), Kookie has been appointed to represent Madam Ming’s estate with full authority to conduct the litigation, including reaching a settlement with the plaintiffs, which is binding on the estate; and (c) the 2^nd defendant has no locus to dispute the settlement.

(2.2)  The mental capacity of Madam Ming when she made the EPA and the validity of the EPA are matters to be resolved in the probate action involving the 2^nd defendant and Kookie. At the time of the trial before the Judge, these disputes had not been resolved.

(2.3)  As to the dispute between the plaintiffs and Madam Ming (and her estate), the focus is on the conveyancing process, namely whether the conveyancing solicitors acting for Madam Ming had adequately answered the requisitions raised by the plaintiffs and shown a good title before completion. Since the dispute as to the validity of the EPA had not been resolved at the conveyancing stage and before completion, the medical certificates relating to Madam Ming’s mental capacity that the 2^nd defendant sought to rely on cannot advance the position of Madam Ming (and her estate) or the 2^nd defendant vis-à-vis the plaintiffs. This is because, even if she had a good title, she would be in breach of the SPA if she failed to show good title by answering the requisitions adequately: Active Keen Industries Ltd v Fok Chi Keong [1994] 1 HKLR 396.

(2.4)  The plaintiffs have relevantly referred to another decision of this Court in CKKK v CKB (unreported) CACV 162/2015, 30 September 2016, at [52] to [58], which considered and rejected two of the medical reports relied upon by the 2^nd defendant. We would additionally observe that in that case, two other psychiatrists who examined Madam Ming in July 2013 found her to be in a severe state of dementia and have by then suffered from mental incapacity for some time. Their expert evidence was accepted by the court in preference to two of the medical reports now relied on by the 2^nd defendant.

(3)  Ground 5

As the plaintiffs’ solicitors correctly pointed out, the letter dated 21 February 2019 from the plaintiff’s former solicitors was a without prejudice letter that should not be referred to in this application. In any event, the fact that there had been previous attempt(s) to reach a settlement is irrelevant.

14.Further and more importantly, all the arguments advanced by the 2^nd defendant concern the facts and circumstances of the case below. We do not accept the 2^nd defendant’s argument that the case concerns the question of the validity of the EPA mechanism. In our view, the intended appeal does not involve any question of great general or public importance. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

Conclusion and costs

15.As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

16.There is no reason to depart from the usual rule of costs follow the event. We make an order that the 2^nd defendant is to pay the plaintiffs the costs of this application to be summarily assessed. For the purpose of the assessment, (1) the plaintiffs shall within seven days of the handing down of this judgment file and serve a statement of costs which shall not exceed two pages; and (2) the 2^nd defendant may, if so wish, within 14 days thereafter file and serve a statement of opposition which shall not exceed two pages. We will deal with the assessment on paper.

The plaintiffs, represented by Fred Kan & Co

The 2^nd defendant, unrepresented, acted in person