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

CACV 36/2020, [2024] HKCA 211

On appeal from [2019] HKCFI 3145

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)

AND

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

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D E C I S I O N

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

Introduction

1.This is the 2^nd defendant’s application for a stay of this Court’s judgments given on 19 April 2021[1] and 17 May 2023[2] (respectively “CA 1st Judgment” and “CA 2^nd Judgment”) pending his application to the Court of Final Appeal for leave to appeal from the judgment of 19 April 2023.

2.By CA 1st Judgment”, this Court (Lam VP and Chu JA[3]) struck out the 2^nd defendant’s appeal against the judgment of Deputy High Court Judge Ambrose Ho SC given on 20 December 2019 in HCA 1637/2015 with costs.  By CA 2nd Judgment, this Court (Kwan VP and Chu VP) dismissed the 2^nd defendant’s notice of motion applying, out of time, for leave to appeal to the Court of Final Appeal against CA 1st Judgment with costs.

3.The 2^nd defendant has filed an affirmation and lodged written submissions to support the present application.  The plaintiffs oppose the application and have lodged written submissions.

4.Having considered the papers and the written submissions, we are of the view that it is appropriate to determine the application on paper without an oral hearing.  We have therefore proceeded to determine  the 2nd defendant’s application on the basis of the documents in the case and the parties’ written submission.

Recusal application

5.Before dealing with the substantive application, we will first deal with the 2^nd defendant’s application made in the summons that Chu VP be excused from handling all his legal cases on the ground of substantial and grave injustice in that there is “apparently … favouritism towards the parties who were legally represented”.

6.For the reasons set out below, we are of the view that this application has no merits and should be refused.

(1)  The 2^nd defendant criticized this court’s decisions to strike out his appeal and refuse him leave to appeal to the Court of Final Appeal as disregarding the government’s promotion of the use of enduring power of attorney (“EPA”) and favouring legally represented parties.  However, he has given no particulars to substantiate the assertion of favouritism.  Nor has he provided the basis for asking Chu VP to be disqualified from dealing with the present application and other legal proceedings in which he is involved.

(2)  It would appear that the 2^nd defendant is not asserting actual bias or a case of presumed bias.  His assertion of bias seems to stem from Chu VP’s involvement in both the CA 1st Judgment and CA 2nd Judgment, which are both against him. 

(3)  It is well established that the previous involvement of a judge in cases involving the party and making adverse judicial decisions against him is by itself not a sufficient ground for seeking recusal: 莊裕安 v. 終審法院 [2020] 5 HKLRD 780 at [81] and the cases cited in it.

(4)  The 2^nd defendant has failed to show that there are circumstances which would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the judge would be biased.  There is, in short, no legal basis for the recusal application.

Application for stay

7.We turn next to consider the application to stay the CA 1^st Judgment and CA 2^nd Judgment.  Under section 26 of Hong Kong Court of Final Appeal Ordinance, Cap. 494, the Court of Appeal has power to stay a judgment pending an appeal to the Court of Final Appeal.  The section provides as follows:

“(1) Where a judgment appealed from requires the appellant to pay money or perform a duty, the Court of Appeal or the Court, as the case may be, shall have power, when granting leave to appeal or subsequently, either to direct that the judgment shall be carried into execution or that the execution shall be suspended pending the appeal.

(2) Where the Court of Appeal or the Court directs the judgment appealed from to be carried into execution, the person in whose favour it was given shall, before the execution, enter into good and sufficient security, to the satisfaction of the Court of Appeal or the Court, as the case may be, for the due performance of such order as the Court shall make in respect of the appeal.

(3) Where the Court of Appeal or the Court directs that the execution of the judgment appealed from shall be suspended pending the appeal, the appellant shall enter into good and sufficient security, to the satisfaction of the Court of Appeal or the Court, as the case may be, for the due performance of such order as the Court shall make in respect of the appeal.”

8.In the first place, neither the CA 1^st Judgment nor the CA 2^nd Judgment is a judgment that requires the 2^nd defendant to pay money or to perform a duty.  They fall outside the scope of section 26(1).

9.Secondly, under section 26(3), if a stay of execution is ordered, an appellant is required to provide good and sufficient security to the satisfaction of this court or the Court of Final Appeal.  The 2^nd defendant has not indicated in his summons, affirmation or written submissions that he is prepared and able to provide security for the stay. 

10.Thirdly and importantly, to obtain a stay of the judgment pending the appeal to the Court of Final Appeal, an appellant has to satisfy the Court of Appeal that very exceptional circumstances exist, which is a very high hurdle: Whale View Investment Ltd v Kensland Realty Ltd & Ors [2001] 3 HKC 15, at 20I – 22F. 

11.In this case, the 2^nd defendant’s sole reason for the stay application is that he had gone to the Court of Final Appeal and was told he could directly appeal to the Court of Final Appeal against this court’s decision(s) in this appeal.  We believe what this means is that the 2^nd defendant could make an application for leave to appeal to the Court of Final Appeal despite leave to appeal had been refused by this court.  This, however, is hardly a sufficient reason for granting a stay of execution.

12.In his written submission, the 2^nd defendant made the following points in support of his stay application:

(1)  He was prevented from attending court hearings or filing court papers due to Covid-19 prevention and restriction measures imposed in the Mainland, where he was residing, and in Hong Kong.

(2)  In handling the sale of Madam Ming Chor Pao’s property and the sale and purchase agreement made with the plaintiffs (“SPA”), he acted with full authority under the EPA dated 15 January 2014 given by Madam Ming.  The EPA was validly given by Madam Ming and had been duly registered.  There were medical reports to certify that Madam Ming was mentally sound and capable when she made the EPA.  It is unfair to deny the validity of the EPA in the proceedings brought by the plaintiff.

(3)  The court was wrong to disregard the effect of Madam Ming’s EPA, thereby ignoring the government’s promotion and encouragement of the use of EPA and favouring legally represented parties. This is grave and substantial injustice.

(4)  This court’s judgment that no good title was given for Madam Ming’s title is unacceptable.  Madam Ming had made a valid EPA which was witnessed by medical practitioner.  The supporting medical certificates had been disclosed to the plaintiffs’ solicitors.  There is no expert to disprove the prima facie validity of Madam Ming’s EPA.

(5)  This court’s judgment that the 2^nd defendant has no locus to enforce the SPA is misleading.  The 1^st defendant (“Kookie”) has no authority to represent the estate of Madam Ming and Master S Lo’s order dated 20 March 2018 was erroneous.

(6)  The preference that this court gave to the expert evidence produced by Kookie is unacceptable as no leave has been given for their production, the reports lack the requisite declarations and they were produced eight months after Madam Ming executed the EPA.

13.We have in the CA 2^nd Judgment considered and dealt with points (1) to (5).  We need only point out that in [8] to [10] of our judgment, we had considered point (1) and found that the 2^nd defendant has failed to satisfactorily explain his 22 months’ delay in making an application for leave to appeal. 

14.With regard to points (2) to (5), we have discussed them and explained our reasons for rejecting them in [12(2.1)] to [12(2.3)] of the CA 2^nd Judgment.  In brief, there is a dispute as to the validity of Madam Ming’s EPA, which remained unresolved at the time stipulated for the completion of the sale of Madam Ming’s property.  As such, the plaintiffs’ requisitions had not been adequately answered and Madam Ming was not able to show a good title.  Further, any authority given to the 2^nd defendant under Madam Ming’s EPA ceased upon her death, and the 2^nd defendant’s appeal against the representation order made by Master S Lo had been dismissed by B Chu J.              

15.As to point (6), we have in [12(2.4)] of the CA 2^nd Judgment pointed out that: (1) two of the medical reports relied upon by the 2^nd defendant were rejected in CKKK v CKB (unreported) CACV 162/2015, 20 September 2016 at [52] to [58]; and (2) the court in that case had accepted the expert evidence of two psychiatrists who had examined Madam Ming in July 2013 (which was before she made the EPA) and preferred their reports to the medical reports relied upon by the 2^nd defendant.  In [12(2.4)], we were merely setting out the holdings of the court in CACV 162/2015, and not stating our findings.  Point (6) is misplaced.

16.In short, the arguments that the 2^nd defendant put forward to support the present application have no merits.  We are not satisfied that there is any proper basis for staying the CA 1^st Judgment and/or the CA 2^nd Judgment.  We dismiss the 2^nd defendant’s summons.

Costs

17.Applying the usual rule of costs follow the event, we also order the 2^nd defendant to pay the plaintiffs the costs of this application to be summarily assessed.

18.We have considered the plaintiffs’ statement of costs.  Having regard to the fact that the papers and issues involved in this application are not voluminous or complex, most of which had been canvassed in the previous application for leave to appeal, we are of the view that on a party-and-party basis, the time incurred for items D1 (preparation of documents) and D2 (perusal of documents & legal research) should be adjusted downwards.  Taking a broad-brush approach, we assess the plaintiffs’ costs at HK$45,000. 

Disposition

19.Accordingly, we make the following order:

(1)  The 2^nd defendant’s summons filed on 19 May 2023 is dismissed.

(2)  The 2^nd defendant pays the plaintiffs the costs of the summons, summarily assessed at HK$45,000. 

[1] [2021] HKCA 476

[2] [2023] HKCA 654

[3] As Lam PJ and Chu VP then were.