Ching Chung Yin Secina in Her Capacity As the Executrix of the Estate of Ching Chi Sau, Deceased v. Ching Chung Kam Andrew in His Capacity As the Executor of the Estate of Ching Chi Sau, Deceased
Read the full judgment text of DCCJ 2920/2023 on BabelCite. This District Court judgment was delivered on 29 October 2024.
1. This is the hearing of the Plaintiff (“ P ”)’s appeal against the following orders made by masters by way of two Notices of Appeal:-
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DCCJ 2920/2023 [2024] HKDC 1738 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2920 OF 2023 ------------------------------ BETWEEN
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------------------------------ DECISION ------------------------------ ------------------------------ Table of Contents ------------------------------ Subject matters of the present appeal 1.This is the hearing of the Plaintiff (“P”)’s appeal against the following orders made by masters by way of two Notices of Appeal:-
2.For the purpose of this appeal, P also took out another summons filed on 17/4/2024 (which was subsequently amended on 25/6/2024) to adduce fresh evidence (the “New Evidence Summons”). 3.P, the Defendant (“D”), and Mr Edward Ching (“Edward”) were siblings born out of the marriage of Madam Wong Leung Lin (“the Mother”), and Mr Ching Chi Sau, deceased (“the Deceased”). P is the younger sister of D and Edward, who is the eldest brother. 4.On 16/7/2017, the Deceased passed away leaving a Will dated 28/12/2011 (“the Will”) in which P and D were appointed as co-executors. On 30/8/2019, the High Court Registry issued the Grant of Probate to P and D. 5.The Mother (who is now 86 years old), P, D and Edward are the beneficiaries of the Deceased's estate (“the Estate”). Relevant provisions of the Will 6.Among other things, the Deceased made the following provisions for the beneficiaries under the Will:-
7.Unfortunately, disputes between P and D over the administration of the Estate arose sometime after the passing away of the Deceased. In gist, according to P, D had refused to co-operate and was negligent or derelict in his duties as executor. Among other things, an ICBC bank account was opened under the joint names of P and D (“ICBC Account”), and a cash sum of about HK$11 million was being deposited therein. However, according to P, D refused to accede to her request to have the cash placed into time deposit since about early 2020. D also refused to accept P’s certain requests/proposals made concerning the Benevolent Fund. HCA 385/2021 (transferred from DCCJ 1583/2020) 8.On 11/5/2020, P filed a claim against D under DCCJ 1583/2020 ("DCCJ 1583 Action"), which was later transferred to the High Court under HCA 385/2021 on 10/2/2021 ("HCA 385 Action")[1]. In that action, P basically claimed damages from D for negligence and delays in handling the Estate. 9.Under that action, amongst others, P also claimed loss of interest against D owing to the latter's refusal to follow her request to place the cash in ICBC Account into any time deposit. 10.On 14/5/2021, Master Adriana Tse struck out part of P's Reply at pages 70 to 101 thereof[2], but it appears that nothing in this striking out appeal turns on those pleas as struck out, and both counsel made no submission to this Court in that regard. 11.On 23/6/2021, Master S.H. Lee made an order to stay all the proceedings under HCA 385 Action until the final determination of another High Court action (HCMP 2339/2020) or further order. 12.On 11/5/2023, Master Rita So granted leave to P to amend the Re-amended SOC. On the face of the pleading (after such amendment), the original interest loss claim was removed, and her personal claim against D was radically reformulated (as drawn up by lawyer this time completely replacing the earlier homemade pleading), to sue for her psychiatric damage (viz depression) suffered and related pecuniary losses. 13.In the Re-re-amended SOC (which was filed on 25/5/2023[3]), P alleged D had committed a series of oppressive and unacceptable conducts against her, trying different ways to avoid obtaining the Grant of Probate together with her. She pleaded the tortious causes of action of harassment and intentional infliction of injury as the legal base of her claim.. 14.On 23/12/2020, P issued an Origination Summons under HCMP 2339/2020 pursuant to Order 85[4] ("HCMP 2339 Action"), seeking 5 directions in relation to the administration of the Estate. 15.Amongst others, those as relevant to the present appeal are proposed directions (2) and (3):-
16.On 17/8/2021, after considering the parties’ submissions and affidavit evidence, Mr Justice Wilson Chan made the following order at the substantive hearing of the Originating Summons[5] (the "Aug/2021 Order”):-
17.The learned Judge’s reasoning and decision in relation to paras 2 and 3 of the Aug/2021 Order can be discerned from the transcript for hearing of 17/8/2021[6] quoted below:-
18.In 2021, P commenced another High Court action under HCA 1643/2021 in her personal capacity against D (qua the capacity as the executor) to claim damages from the Estate based on an oral contract entered into between herself and the Deceased. On 5/7/2022, this action was struck out by Master Sabrina Ho on the ground that the pleading disclosed no reasonable cause of action[7]. CACV 434/2021 (P's appeal against Wilson Chan J’s Order) 19.On 10/9/2021, P lodged an appeal against paragraph 4 of the Aug/2021 Order which was heard on 20/9/2022. On 18/10/2022, the Court of Appeal handed down its Decision dismissing the appeal.[8] DCCJ 2920/2023 (present action) P’s pleaded case (interest loss claim / Benevolent Fund) 20.After P was given leave to remove the interest loss claim under HCA 385 Action on 11/5/2023, P issued the Writ under this Action on 13/7/2023[9], and then filed the present SOC on 28/2/2023[10], Essentially, P’s claim herein is twofold pleading that D was in breach of his executor’s duties:-
21.The essential pleas as relevant for this striking out appeal are set out below:-
D’s striking out summons / amendment summons 22.On 13/10/2023, D took out a summons to strike out the present SOC in its entirety[11] ("the Striking Out Summons"). On 14/2/2024, D took out another summons to amend the Striking Out Summons to seek leave to amend the Striking Out Summons to introduce an additional striking out ground that P knew or ought to have known that the District Court has no jurisdiction to determine her claims; and to seek in the alternative that (instead of the whole claim) certain identified parts of the pleadings in relation to the interest loss claim or the Benevolent Fund claim be struck out (“D’s amendment summons”). Striking out & related costs orders 23.At the hearing on 18/2/2024, P’s counsel at the court below, Ms Karen Wong (who also appeared for P in this appeal) did not object to the amendment for the striking out in part, but objected to the belatedly raised jurisdiction ground be heard by the learned Master since P was not given a fair chance to respond[12]. 24.The learned Master decided that the Striking Out Summons be heard on the original striking out grounds first, without hearing the jurisdiction challenge. Should the need for hearing this last ground arise after the determination, she would hear further submissions on the jurisdiction ground then[13]. 25.After hearing the counsel’s submissions on the original striking out grounds alone, the learned Master struck out the present SOC as per the following terms[14]:-
26.As noted from the transcript of the learned Master’s reasoning, she mainly relied on the principles basing on Henderson v Henderson (1843) 3 Hare 100 (Ch D) to strike out P’s claims holding that these claims could have and should have been brought in the HCMP 2339 Action, and bringing the same in this action would vex D twice for the same subject matter.[15] 27.In relation to the amendment summons, since the whole claim was struck out, D withdrew the jurisdiction ground, the learned Master granted retrospective leave to the rest of it[16] ("the Amended Summons"). 28.After reading the parties' written submissions in relation to the application to vary the costs order nisi (as referred to in Paragraph 25(2) above), Master Matthew Ho made the following costs order[17]:-
Relevant principles on appeal against Masters’ decisions 29.The appeal against masters’ decisions operates by way of rehearing and the judge treats the matter as though it came before him for the first time. See: Hong Kong Civil Procedure 2025, vol 1 (“HKCP 2025”), para 58/1/2; Leung Kam Chung Kenneth v Commissioner of Police (03/08/2022, HCA 1936/2021) [2022] HKCFI 2416 per Queeny Au-Yeung J at para 7. Relevant principles for striking out on abuse of Court process 30.Like what she did at the court below, Ms Abigail Liu appearing for D in this appeal mainly relied on Henderson abuse ground to strike out both claims. 31.The commentary at para 18/19/10 of HKCP 2025 succinctly summarised the legal principles involved for the Court to exercise its power to strike out basing on re-litigation and res judicata, including the principles laid down along a line of authorities (both in Hong Kong and UK) stemming from Henderson v Henderson. The following passages as quoted from that commentary are particularly pertinent in this case:-
32.Bearing in mind the above principles and considering the striking out matter de novo, I now turn to the parties’ submissions and evidence. 33.Ms Liu identified the abuse at para 28(3) of her Skeleton submitting that if the claim for interest loss is allowed to be brought in an action other than HCMP 2339 Action, D would be vexed twice in the same matter, ie his alleged failure to place the cash in the ICBC Bank Account into time deposit. This is oppressive and vexatious. 34.She further submits that P should have asked for all the reliefs she thought she was entitled to arising from D’s refusal to place the cash in the ICBC Bank Account into time deposit in HCMP 2339 Action and it is against the principle of efficiency and economy to allow P to pursue her claim in pieces. 35.Also, Miss Liu submits that allowing any claim for interest loss based on the same factual matrix to proceed may give rise to inconsistent judgment from the Aug/2021 Order thereby bringing the administration of justice to disrepute. DCCJ 1583 Action was taken out before HCMP 2339 Action 36.The contended abuse has to be carefully considered in light of the procedural history of the prior relevant litigations taken out by P against D. 37.Before HCMP 2339 Action was taken out, DCCJ 1583 Action had already been instituted by P raising, amongst others, an interest loss claim against D due to his alleged delay to apply for a grant of probate, and failure to follow her request to place the cash in ICBC Account into time deposit since about early 2020. As said, that action was subsequently transferred to High Court, and before the substantive hearing of HCMP 2339, such interest loss claim was still pending under HCA 385/2021:[18]
38.In an affidavit filed by P on 18/2/2021 supporting the Originating Summons, she made it clear that the purpose of DCCJ 1583 Action was to claim against D for various losses occasioned to her and the Estate, including the interest loss claim:-
The two Actions served different purposes according to P 39.After the Aug/2021 Order was made but before the appeal against part of this Order under CACV 434/2021 was heard, P applied by way of summons on 14/4/2022 seeking, amongst others, to enforce paras 1 and 3 of the Aug/2021 Order due to its alleged non-compliance by D. In her supporting affidavit filed on 14/4/2022 for that summons (exhibited as "CCKA-7" in D's 1st supporting affidavit for his striking out application ("D's 1st Affidavit")), P reiterated that HCMP 2339 Action and HCA 385 Action were serving different purposes: the former is to seek distribution of funds from the Estate, whereas the latter is to claim for the interest loss and other damages suffered by her.
40.For completeness sake, that summons was dismissed at the end, but it was for technical reasons, and the learned Judge had not tried its merits. From the transcript produced in the hearing bundle for this appeal, it can be seen that at the hearing on 6/6/2022, the learned Judge made a preliminary observation that P applied for the cash in ICBC Account after deducting HK$1.68 million (which she was entitled to withdraw) be placed into time deposit but without letting D and Edward’s entitled shares be withdrawn at the same time would appear to be selective enforcement of the Aug/2021 Order, especially she had not applied for any stay of paragraph 4 thereof pending the appeal. It was against such background, P agreed to have the summons dismissed on the understanding that her right to take action again over the same matters in a proper manner was reserved [19]. 41.It would therefore appear to this Court that, prima facie, P took out two actions at the time with different legitimate purposes in mind. At the very least, bringing the claim for interest loss occasioned to the Estate separately in another civil action in the way she did, would appear to be done with a sensible reason, particularly bearing in the mind the nature of the HCMP 2339 proceedings. For completeness sake, there is also no or no effective evidence to show that P was conducting the two litigations at the time in bad faith or with ulterior motive. At the court below and in this appeal, Ms Liu's submissions for the striking out of the interest loss claim have along been revolving around the Henderson abuse ground. The special nature of Order 85 administration proceedings 42.HCMP 2339 Action was brought under Order 85 of RDC, which is designed in such a way to discourage making of administration order when the question at issue between the parties can be resolved without making such an order. This can be discerned from the legal commentaries as quoted below touching on the genesis and design of Order 85 administration proceedings. 43.William Mortimer & Sunnucks on Executors Administrators and Probate (21st ed) para 57-02 states that:-
44.HKCP 2025, para 85/6/6 states that:
45.As for the rules themselves, Order 85 rules 2(1), 2(2)(a) and 5(1) of the Rules of District Court (Cap 336H) provide that:-
46.It also appears that owing to such nature of administration proceedings taken out under Order 85, the learned Judge saw fit to make a declaration of P’s power/entitlement (qua executrix) to have the Estate's fund placed into time deposit, without actually making an order directing D to do so accordingly. In my respectful view, such order was made in line with the objective behind the administration proceedings under the Order 85 procedure, noting further HKCP 2025 commentary at para 85/2/1, which provides that:-
47.As can be seen from the affidavits filed by the parties under HCMP 2339 Action at the time, it appears that D was under an apprehension that since he and Edward had indicated that he would not participated in the time deposit rolling over plan proposed by P (which he referred as 定期滾存計劃 in his affidavit) with respect to their shares in the Estate’s assets as beneficiaries, he can refuse to accede to P’s request of placing such portion of cash into time deposit. 48.In D’s 1st affidavit filed on 19/1/2020, D at para 8(3) deposed that:-
49.In another affidavit in opposition filed on 30/4/2021, concerning 40% of the residue of the Estate for the setting up of the Benevolent Fund, it seems that D departed from his earlier view by suggesting that the decision whether to opt for such portion of cash be placed into another bank to earn higher interest would depend on the majority view of the beneficiaries. Such view of D would not sit well with the provision in the Will specifying clearly that in case of disagreements among the siblings and the Mother in respect of the Benevolent Fund, P's decision shall prevail.
50.In this regard, the relevant provision of clause 5(d)(vi) of the Will concerning the Benevolent Fund provides that:-
51.Viewed thus, when Wilson Chan J made the declaration under para 3 of the Aug/2021 Order, and in light of his reasoning given, his Lordship already made a finding which resolved the disagreements between the parties as to how the relevant provisions of the Will should be construed. In other words, basing on the learned Judge's construction, the reasons put forward by D are not legitimate reasons in not following P's decision to place the cash in bank into time deposit. 52.In these circumstances, from the perspective of administration of justice, after the declaration under HCMP 385 Action was made and if both parties acted sensibly and reasonably in accordance with the letters and spirit of the Court's declaration, the disagreements over the specific question of investment of the Estate's fund should come to an end, or it may even help the parties to settle the interest loss claim. 53.For, the Aug/2021 Order including the declaration made therein is binding between the parties, and would narrow down the scope of their potential disputes over the interest loss claim. Its binding effect would also answer Ms Liu's argument of potential inconsistent judgments as mentioned above. If either party now attempts to reargue the same issues which had already been decided by any part of such Order, he or she would be precluded from doing so by issue estoppel. 54.In Zamir & Woolf on The Declaratory Judgment, the learned editors at para 1-07 commented on the effectiveness of declaratory relief thus:-
55.On the aforesaid basis, it is clear to this Court that the contention that D was vexed twice in the same matter does not hold water. For, if D's reason(s) to be put forward (as substantive defence(s)) for not following P's decision to invest the cash in ICBC Account by placing it into time deposit, would remain to be those already canvassed under HCMP 2339 Action and not accepted by the learned Judge, D would be estopped from doing so, and the Court's declaration was binding on him. 56.Or else, if D is to otherwise raise new matters in this action which only happened after the substantive hearing of that action that can legitimately permit him to defend the interest loss claim herein, D's argument of being vexed twice likewise cannot get off the ground. 57.On the flip side, P could not bring a claim for interest loss occasioned to the Estate by those alleged breaches of executor's duties of D[20] which had not yet occurred before the learned Judge determined the Originating Summons. 58.Viewed thus, if D were allowed to shut P away from bringing the interest loss claim against him while he has in truth been in breach of his executor's duties, he would effectively be granted a blanket immunity from being sued for his own wrongs (if established) which have been continuing over these years both before and after the Aug/2021 Order was made. That would clearly be repugnant to one's fundamental sense of justice, and it cannot be right. 59.Facing with such a conundrum when it was being pointed out by the Court, Ms Liu submitted that D would have no complaint if P had brought the interest loss claim by taking enforcement action under HCMP 2339/2021 instead. 60.With respect, such argument is misconceived. By the time the interest loss claim was removed from the HCA 385 Action, it could no longer be introduced to HCMP 2339 Action as a new claim for the lis thereunder has been determined, and being a new claim it cannot fall within the scope of enforcement action thereunder either. 61.Ms Liu drew my attention to the authority of Chan Man Lin & Anor v Chan Man Yin & Anor (unrep, HCA 514/2000, 12.12.2000), and submitted that it is an abuse of process for P to pray for different reliefs in two separate actions when the cause of action in both actions (i.e. HCMP 2339 Action and the present action) is identical. At pp.5 and 6 of the judgment, Wally Yeung J (as he then was) held that:-
62.With respect, there might be more force in Ms. Liu's submission if the substantive hearing of HCMP 2339 Action is now still pending determination, then D may rely on Chan Man Lin to seek leave to, for instance, stay the present proceeding with respect to the interest loss claim, and have it incorporated into HCMP 2339 Action for determination in additional to the original reliefs sought. But the subject matter of the lis under HCMP 2239 was already concluded, Ms Liu's reliance on Chan Man Lin is therefore misplaced. 63.Further, D was fully aware of the interest loss claim being brought against him in a separate action under HCA 385/2021 before the substantive hearing of HCMP 2339 Action was heard (see : paragraph 37 above). And yet, not only that D did not apply to remove such claim from the then HCA 385 Action and have it heard under the HCMP action instead, he even said at para 4 of his affidavit filed on 30/4/2021 to oppose P's Originating Summons as follows:-
64.However, according to my reading of the Re-re-amended SOC filed pursuant to Master Rita So's Order made on 11/5/2023 under HCA 385/2021 (as exhibited in P's affidavit filed on 28/12/2023 to oppose D's striking out application at the court below ("P's 1st Affidavit")[21]), it appears that Master Adriana Tse only struck out part of the Reply and the interest loss claim then pleaded in the Re-amended SOC was not affected (see also : paragraph 10 above). 65.Viewed thus, as a matter of principle and fairness, I do not think that D can blow hot and cold to apply to strike out the interest loss claim after the learned Judge made the declaration under paragraph 3 of the Aug/2021 Order which was against him, by now arguing that the interest loss claim should have been litigated in one go under HCMP 2339 Action, given his earlier stance adopted in handling the two litigations as mentioned above. 66.For completeness sake, in my view, by granting leave to P to amend the earlier Re-amended SOC on 11/5/2023, Master Rita So also effectively allowed P to withdraw her interest loss claim against D under HCA 385 Action. 67.Under Order 21 rule 4 of RDC, the fact of withdrawal of such claim by itself would not be a defence to a subsequent action for the same, or substantially the same, cause of action. The onus rests on D, but this Court was not informed of any condition being imposed by Master Rita So (when granting leave to amend the pleading) to preclude P from bringing the interest loss claim again in a subsequent action. See also : HKCP 2025, para 21/5/13. Nor did Ms Liu attempt to make any submission to that effect. 68.For completeness sake, having surveyed the overall circumstances of this case (irrespective of whether the fresh evidence as sought to be adduced under the New Evidence Summons was admitted or not in this appeal[22]), this Court do not consider that the fact of the interest loss claim having been withdrawn from HCA 385 Action and now being re-instituted under the present action would constitute an abuse of Court process. 69.Due to the above reasons, in my view, all in all D cannot discharge his onus to make out the Henderson abuse ground or any other grounds as contended to strike out the interest loss claim. This Court would therefore allow the appeal against the striking out order in relation to that claim. 70.On the materials before this Court, it is plain and obvious that P is in substance relitigating in this action the fundamental issues she had raised to support her Benevolent Fund claim under HCMP 2339, which were fully canvassed and determined by Wilson Chan J against her. (see : paragraphs 15 to 17 above). There was no appeal lodged against that part of the Order (at para 2). The identities and capacities of the parties (suing and being sued) in both actions are identical. 71.In W v AW [2021] HKCFI 1707, Mimmie Chan J summarised the essential principles on issue estoppel at paras 30 to 32 of her judgment which I would respectfully adopt, and those passages as particularly pertinent here are quoted as follows:-
72.Despite her opposition of the striking out of the Benevolent Fund claim in this action, P simply could not provide any evidence (not even in the fresh evidence she sought leave to adduce for this appeal) to inform this Court that she is now seeking equitable compensation/damages against D for his alleged breaches of executor's duties in respect of the Benevolent Fund basing on what new cause(s) of action and/or new matters, other than those reasons/matters which she relied on in HCMP 2339 Action. 73.Not only that, in P's 1st Affidavit, she even referred to the same old material, viz an affidavit filed by D under that action (as opposed to new evidence / circumstances that have come into play after the conclusion of HCMP 2339 Action), trying to show that D has not allowed her to take out funds from the Estate to set up the Benevolent Fund:-
74.Yet, if one looks at para (2)(ix) of that affidavit (as quoted below), D's reason given for not following P's request with respect to the Benevolent Fund, was actually accepted by the learned Judge (at least with respect to the part underlined in the quoted passage below) in the light of his Lordship's reasoning (as quoted in paragraph 17 above):-
75.I have not lost sight that P is now seeking to recover equitable compensation/damages (and related incidental reliefs) as a result of the alleged breach of duties of D by not allowing her to withdraw 40% of the Estate 's fund of about HK$4.44 million from the ICBC Account (as pleaded under paragraph 14(3)(b)) to set up the Benevolent Fund, rather than seeking an order that a lump sum of HK$3 million in relation to the Benevolent Fund be paid to her in HCMP 2339 Action. 76.But D would still be estopped from doing so under the guise of an equitable compensation/damages claim when the issues of the alleged breaches had effectively been considered and determined by the learned Judge against her. For, as can be seen from the learned Judge's reasoning, P would have no basis to ask for the Estate fund be paid to her in one-off lump sum in the way she did, and this was against the purpose for setting up the Benevolent Fund as provided under the Will for the daily living expenses and health care expenses of the Mother. (see : paragraph 17 above) In this connection, P also pleaded at para 14(3) of the present SOC to the effect that the alleged breaches have occurred since January 16, 2020. 77.For completeness sake, it is also clear from the present context that the alleged breaches of duties as pleaded under paragraph 14(3)(a) and (c) of the present SOC concerning D's refusal to allow P to solely administer the Benevolent Fund, nor to allow her decision to prevail are in fact subsumed under the alleged breach of duties as pleaded under para 14(3)(b) mentioned above, and have been canvassed in HCMP 2339 Action as pointed out by D in his affidavit in reply filed on 14/2/2024 for use in his striking out application ("D's 2nd Affidavit"). And yet, P has failed to respond to all these matters, not even in the fresh evidence she now seeks to adduce. Para 9(1), (6) and (7) of D's 2nd Affidavit state thus:-
78.In fact, Ms. Liu rightly pointed out that in this appeal, P did not even put forward in her Skeleton Submissions any argument to support that the pleading about the Benevolent Fund ought not to be struck out. 79.Therefore, it is plain and obvious to this Court that the pleas in the present SOC in relation to the Benevolent Fund (as they now stand) ought to be struck out by reason of the doctrine of issue estoppel as explained above. 80.P seeks to adduce fresh evidence for this appeal by way of her 2nd affidavit deposed on 20/3/2024 ("P's 2nd Affidavit") annexed to the New Evidence Summons. The application was opposed. Both counsel agreed that this Court can consider the affidavit de bene esse, together with the striking out appeal. 81.Both counsel agreed that adducing evidence of the subject kind is not permissible for the purpose of this appeal unless P can demonstrate there are special grounds to justify the otherwise: see Order 58 rule 1(4), Rules of District Court (Cap.336H) ("RDC"), and in determining whether 'special grounds' exist, this requires the three conditions laid down in Ladd v Marshall be satisfied (see HKCP 2025, paras 58/1/3 and 59/10/8):-
82.Before I go into these 3 Conditions, I should mention that in arriving at the above decision for the striking appeal on the interest loss claim, and Benevolent Fund claim, this Court does not need to rely on the matters deposed in P's 2nd Affidavit. However, since the New Evidence Summons was hotly contested and this has costs implication, I need to make a ruling on the same. Matters touching on interest loss claim 83.After carefully considered the parties' submission/authorities and the evidence before me, this Court finds that only the following paragraphs in relation to the interest loss claim deposed therein ought to be admitted as fresh evidence for this appeal :-
84.P filed her 3rd affidavit on 17/4/2024 to support the New Evidence Summons ("P's 3rd Affidavit"). At paragraphs 6 to 16 thereof she tried to explain why the new evidence in her 2nd Affidavit could not have been obtained with reasonable diligence for use at the hearing below, which are quoted as follows:-
85.To begin with, this Court is of the view that D was indeed time-pressed to gather the relevant evidence to oppose the Henderson abuse ground, which was only specifically raised in D's affidavit in reply (i.e. D's 2nd Affidavit), but not in his 1st supporting affidavit. D's 2nd Affidavit, together with her counsel's skeleton submissions and list of authorities[23], were filed only 2 weeks before[24] the hearing proper of the striking out application, and P's counsel had to file her skeleton submissions in reply by 21/2/2024. 86.To intensify the time restraint, P's legal team also need to prepare concurrently for another hearing before DHCJ Reyes on 15/2/2024 (concerning an appeal against a garnishee order made under HCA 1643 Action). DHCJ Reyes SC delivered his Decision on the same day[25]. Although that appeal was dismissed, the learned Deputy Judge did express his concern about D's non-compliance with paragraph 1 of Wilson Chan J's Order by not co-operating with P to release the sum of HK$1.638 million to her from the Estate. Paragraph 17 of that Decision stated thus :
87.To follow up such matter, P's legal team's attention were distracted to some extent to correspond with D's legal team on the release of the money from the bank before the hearing on 28/2/2024. In passing, on 16/2/2024, P had to accompany her 86-year-old mother (who had been taken care of by P) to attend government hospital for blood sampling taking. On 19/2/2024, P also needed to attend a psychiatric appointment at Western Psychiatric Centre. [26] 88.In light of the aforesaid, leaving aside P's mental health condition for the moment, prima facie, it is understandable that an ordinary litigant (even legally assisted) would be subject to tremendous pressure under the tight time frame to handle two sets of litigation of such important nature at the same time. Not to mention that there is objective contemporaneous medical records to show that P's mental health condition was rather unsatisfactory at the time. 89.According to Queen Mary Hospital (Dept. of Psychiatry)'s medical report dated 17/5/2023, she was diagnosed by the government psychiatrist as suffering from dysthymia (i.e. persistent depressive disorder) [27]. Her first attendance was 8/5/2023 her presented symptoms included, among other things, 'mood accompanied with subjective unsatisfactory sleep quality, daytime tiredness, poor concentration and negative cognition of self-blame useless and hopelessness harbored, while denied self-harm or suicidal ideation'. (emphasis supplied) 90.Apart from that, she also received clinical psychological service from Queen Mary Hospital since October 2022. According to the Psychological Report of QMH dated 1/11/2023[28], it was recorded that P had "depressive symptoms precipitated by the lawsuits. Her emotional disturbances were impressed to be perpetuated by ongoing multiple life-stressors, including the handling of lawsuits, caring issues of the mother, and her health problem, and her maladaptive coping towards the stressors..." (emphasis supplied) 91.In these circumstances, it would appear credible to this Court that whilst being stressed by two sets of litigations at the time, P's rather unsatisfactory psychiatric condition can indeed adversely affect her ability to properly respond and gather the relevant details of HCMP 2339 Action and DCCJ 1583 Action / HCA 385 Action (as quoted in paragraph 83 above) to bring them to the learned Master's attention to defend D's Henderson abuse contention. In my view, neither would it be fair to blame P's legal team for not being quick-witted enough, in hindsight, to appreciate the significance of these relevant details when they were also being taken by ambush at the time and not on a level playing field to respond to the Henderson abuse (raised only for the first time in D's 2nd Affidavit) under the difficult circumstances as highlighted above. 92.In Bank of New York Mellon v Sun Jiangrong [2016] 1 HKC 137 (an authority cited by Ms Wong), Poon JA (as he then was) underscored the importance of context in which the application arose. At paras 25 to 27, his Lordship said:-
93.Consistent with the above observation made in Bank of New York Mellon, the learned editors of HKCP 2025 commented at 59/10/9 that the discretion of the court to admit fresh evidence will be more readily exercised where there has been surprise citing, amongst others, Technograph Printed Circuits Ltd v Mills & Rockley (Electronics) Ltd [1969] FSR 239 in support. In that English Court of Appeal's case, Sachs LJ at p.253 held that:-
94.In my view, given the peculiar context of this case for viewing the criterion of reasonable diligence as expected of P under Condition 1 as highlighted in paragraphs 85 to 91 above, this Court would be more inclined to grant her the indulgence to adduce the fresh evidence (as mentioned in paragraph 83 above) for this appeal. 95.This is especially so when in my view the tight time frame as faced by P to respond to the Henderson abuse ground (particularly with respect to the interest loss claim) was in fact created or otherwise materially contributed by D choosing not to specifically raise it in his first supporting affidavit, but only leaving this to be done in his reply affidavit. By then, P could not file any further affidavit without leave of the court according to the earlier directions order made by Master Stanley Ho on 16/11/2023[29]. Whereas, under the original time frame, P and her legal team would have 28 days after the directions order to respond to the Henderson abuse ground if it had been properly set out in his first supporting affidavit. 96.According to the authorities for striking out on Henderson abuse ground cited above, the precise circumstances to constitute an abuse had to be pinpointed by the applicant. In the normal course of things, this matter should be in the forefront of D's legal team before the application for striking out was taken out. Upon my careful reading of D's 1st and 2nd Affidavits, and the transcript showing how the case was conducted at the hearing below, the Henderson abuse ground for the interest loss claim was plainly the core striking out ground, the contentions of inconsistent findings and collateral attack on the Aug/2021 Order just flow from the Henderson abuse ground. 97.Yet, what D basically did was to say in his 1st Affidavit that P had a repeated habit of starting various actions against him[30], and summarised the subject matters of the various prior litigations and the present litigation. Then, under the heading of "Striking out of this Action", D did not even say that P's interest loss claim could be and should be brought in HCMP 2339 Action, which was the crux of the Henderson abuse that D contended at the court below and in this appeal. Rather, D only made it prominent that P had failed to comply with the Aug/2021 Order despite his repeated requests, and had such order been complied with, the dispute between the parties have already been settled. 98.The relevant paragraphs setting out the "reasons" for striking out in D's 1st Affidavit are quoted as follows:-
99.In the paragraphs 22 and 23 as quoted above, D made a reference to the fact that P took out a summons on 14/4/2022 after the Aug/2021 Order, requesting for the arrangement of the fixed deposit of the Estate, and the learned Judge subsequently dismissed that summons on 6/6/2022. Yet, he did not state its relevance for the purpose of the striking out. At any rate, given the above analysis on the interest loss claim (particularly paragraph 40 above), it is clear to this Court that the subject matter of that summons and its dismissal in fact have no real relevance to the issue of abuse of Court process. 100.In contrast, D could clearly articulate his stance of striking out the interest loss claim in his 2nd Affidavit (i.e. his affidavit in reply) as seen from paras 5, 13 and 14 thereof:-
101.I failed to see any good cause why all these contended circumstances to support the Henderson abuse ground, which are so carefully identified and presented in D's affidavit in reply, cannot be properly put forward in his first supporting affidavit in the first place. 102.It is apparent that the purpose for doing so is to take P by ambush, which approach is contrary to the spirit of the CJR and time and again deprecated by the Court. 103.Ms Liu submits that P could have sought for adjournment of the striking out hearing below, and yet she made a deliberate choice to abstain from adducing further affidavit evidence, and invited the learned Master to bear in mind the unfairness caused by D's belated raising of the Henderson abuse ground when deciding the striking out application. As such, the fresh evidence adduced by P in this appeal should be rejected. 104.The course as adopted by P at the hearing below does not appear to be a wise course to take in hindsight, and I agree with Ms Liu's submission that P is bound by the choice made by her counsel on her behalf in not seeking adjournment to adduce further evidence to respond to the Henderson abuse ground. But the matter does not stop here, for the misjudgment so made (be it by P or her counsel) would not in my view automatically preclude P from adducing fresh evidence in this appeal irrespective of any circumstance. Ultimately, this Court would still need to come back to the Ladd v Marshall test in deciding whether the new evidence should be admitted. 105.Ms Liu tried to resort to the case of Tsao Chi Ching v Tsao Lung May (unrep., HCCA 2054/2012, 22.5.2013) (at para 31) and Gannon Vietnam Company Ltd v. Robert Paul Greene (unrep., HCA 584/2012, 11.10.2013) (at paras 32 and 33) to support her argument. Needless to say, each case has to be decided on its own merits. In Tsao Chi Ching, DHCJ Marlene Ng (as she then was) refused to admit the documents adduced by the plaintiff who according to her own case had already supplied such documents to her former solicitors, but they failed to draw the master's attention to the same at the hearing below (Tsao Chi Ching, para 30). It is against background that DHCJ Ng said at para 31 that '[t]he position therefore is despite having the evidence available or that such evidence could have been available at the hearing before Master Levy, May’s then legal representatives made a deliberate decision not to adduce the same at the hearing.' (emphasis supplied) 106.The factual matrix of this case is different. It is not the case here that the previous court documents were not available to P at the hearing below. Rather, it was owing to the limited time frame and she and her legal team were taken by ambush that they did not have a fair chance in the circumstances to properly go into such documents to gather the relevant details to effectively respond to the Henderson abuse ground. 107.Gannon Vietnam is likewise distinguishable from the present case. In that case, the plaintiffs applied to adduce, amongst others, an legal expert opinion for the first time at the appeal hearing against an order made by the Master setting aside a writ served outside jurisdiction. However, DHCJ Lok (as he then was) observed that the plaintiff had not explained why such expert evidence could not have been obtained with reasonable diligence for use at the hearing before the Master (para 30). The plaintiffs' counsel submitted the expert opinion had to be filed in order to address some of the matters raised in the oral reasons of the Master. 108.It was in specific response to such submission that his Lordship observed that Order 58 rule 1(5) RHC (as equivalent to Order 58 rule 1(5) of RDC) aims at effecting a change of culture so that the parties should prepare properly before the hearing before a master, and the plaintiffs had to make a decision as to the totality of the evidence to be presented to the Master for consideration, and cannot like the pre-CJR culture wait for the decision of the Master, and if it turns out unfavourable then present further evidence to the court in the appeal. In other words, his Lordship was just explaining the rationale behind Order 58 rule 1(5) and added nothing to the Ladd v Marshall test. 109.In contrast, there is a proper account proffered by P to explain why she could not have adduced those evidence (as mentioned in paragraph 83 above) with reasonable diligence for use at the hearing below, and this was accepted by this Court for reasons explained above. 110.In the premises, taking into account the overall circumstances of this case, including the above highlighted factors, I am satisfied that Condition 1 is met for the purpose of adducing those new evidence as mentioned in paragraph 83 above. 111.Although strictly speaking, as said, even without considering these fresh evidence, the Court would still think that the interest loss claim should not be struck out. That notwithstanding, after carefully considering the circumstances of this case in the round, I am satisfied that the fresh evidence in question though not decisive are of sufficient importance to affect the outcome of the case concerning the interest loss claim, and Condition 2 requirement is met. 112.In my view, the matters deposed in P's 2nd Affidavit (as mentioned in paragraph 83 above) are also apparently credible, which are consistent with the previous court documents, and the procedural history of the various litigations mentioned in this Decision. 113.In the premises, Condition 3 is also satisfied. Remaining contents of P's 2nd Affidavit 114.As to the rest of the P's 2nd Affidavit, they essentially touch on various background matters concerning the alleged unreasonable and tortious acts on D's part to delay the application for Grant of Probate, and to harass her from 2017 to early 2020. This led her to institute DCCJ 1583 Action (which was later transferred to the High Court under HCA 385/2021) to claim against D under various heads of damage. 115.Yet, these matters were already covered by the Re-re-amended SOC (filed under HCA 385 Action) as exhibited in P's 1st Affidavit to oppose the striking out application. It is wholly unnecessary to include them in her 2nd Affidavit as fresh evidence. They are not of such importance to affect the outcome of this appeal to meet Condition 2 either. 116.It was further deposed in P's 2nd Affidavit that since D failed to discharge his duties causing various losses to the Estate and the beneficiaries, she and her mother were in desperate need of funds from the Estate at the time (under paras 23 and 24), this prompted her to take out the HCMP 2339 Action, she also talked substantially about her financial position since about 2017 (under paras 14 to 22), and the circumstances when she took out DCCJ 1583 Action and HCMP 2339 Action (under paras 28 to 33). Again, most if not all of these matters were already mentioned in details in her support affidavits filed under HCMP 2339 Action, or can otherwise be discerned from the Re-re-amended SOC filed under HCA 385 Action. 117.These affidavits and pleading were already produced at the hearing below, and doubtless this Court can and did look into these materials when considering the merits of this appeal to come to the above decision on this striking appeal. In fact, P could also make submissions out of these materials in this appeal hearing without the need to file these "further evidence". 118.P's 2nd Affidavit also contains a coverage describing her physical and psychological health condition. 119.Ms. Wong cites the English authority of AIB Group (UK) Plc v Turners & Ors [2015] EWHC 3994 (Ch) to submit that vulnerability of a litigant has to be taken into account in assessing whether there is an abuse of process vis-a-vis the interest loss claim. But with respect, Ms. Wong could not really articulate how the factor of P's vulnerability at the time when HCMP 2339 Action and DCCJ 1583 Action (which was subsequently transferred to the High Court) were still ongoing would be relevant for advancing P's case to defend D's Henderson abuse contention. 120.Even according to her own fresh evidence as deposed under paragraph 26 of P's 2nd Affidavit (as admitted by this Court), it was because P already had made a claim against D on the interest loss to the Estate, when she subsequently took out HCMP 2339 Action, she did not claim interest loss therein. This was plainly a choice made by her after well deliberation, and has nothing to do with her vulnerability. 121.In the light of the aforesaid, it is clear to this Court that the matters deposed in P's 2nd Affidavit as discussed in paragraphs 116 to 120 above cannot satisfy Condition 2, or it is otherwise misconceived for her to adduce them as fresh evidence to oppose the Henderson abuse contention. 122.For the avoidance of doubts, although the production of the medical documents as exhibited under "CCYS2-8" failed to satisfy the Ladd v Marshall test as relevant materials for rebuking the Henderson abuse contention, they can nonetheless shed light on P's mental health condition which is relevant for explaining why the fresh evidence as admitted could not have been obtained with reasonable diligence for use at the hearing below. In my view, this Court can consider these medical documents notwithstanding it was exhibited under P's 2nd Affidavit instead of under P's 3rd Affidavit. Having said that, just out of an abundance of caution, insofar as may be necessary, leave would be granted to P to produce these medical documents for this Court's consideration for the fair disposal of the New Evidence Summons. 123.For completeness sake, in relation to P's 2nd Affidavit,
124.Lastly, under para 36, P said she issued DCCJ 1583 Action and HCMP 2339 Action in her personal capacity. Concerning her capacity in which she brought the former action, it was already decided by the Court of Appeal in its Decision under CACV 434/2021[32], and that Decision was exhibited in D's 1st Affidavit under "CCKA-3". As such, it is wholly unnecessary and misconceived for her to seek leave to adduce such evidence. 125.Regarding the latter action, Ms Wong had submitted that P acted in personal capacity under HCMP 2339 Action at the hearing below, but was not accepted by the learned Master. [33] I do not accept such submission either. P's own view of her capacity in taking out that action is irrelevant. It is the views/findings of Wilson Chan J who made the Aug/2021 Order that count:-
126.At the end of this appeal hearing, in answering the queries raised by this Court, Ms Liu indicated that if the striking out appeal is allowed, D would thereafter apply to seek to strike out the claim(s) restored, by arguing that the present proceedings are relating to or for the administration of the proceedings, and the amount of the Estate fund involved in this litigation is over the District Court's jurisdiction limit of HK$3,000,00 according to section 37 of the District Court Ordinance (Cap.336), and that P knew or ought to have known that the Court has no jurisdiction. 127.As pointed out above, the learned Master had not dealt with this jurisdiction ground at the hearing below, and it was withdrawn from the amendment summons by D after the striking out order was made. Both counsel mentioned nothing about the jurisdiction point in their respective Skeletons in the case that this Court allowed any claim(s) to be restored, and they agreed that the jurisdiction point falls outside the scope of this striking out appeal. 128.Both counsel nonetheless agreed that this Court does have the jurisdiction to rule on this striking out appeal including the New Evidence Summons. 129.That notwithstanding, upon making the Order to deal with this striking out appeal, I would further direct the parties to jointly write to the Court proposing how to deal with the jurisdiction issue within the next 14 days, since this is an important matter which would affect whether P's restored claim should continue to be dealt with in the District Court, or be transferred to the High Court or otherwise. Order 130.Due to the above reasons, this Court make the following order:-
131.This Court invited both counsel to make costs submissions at the end of the appeal hearing. Since they did not have the opportunity to read this Decision any my reasoning on the striking out appeal and the New Evidence Summons at that time, and it now turns out neither P nor D is the sole winner or loser of the striking out appeal, though apparently much more time and effort were spent by the parties on the preparation works on the evidence and arguing the interest loss claim than the Benevolent Fund in this appeal. 132.Further, although the New Evidence Summons was allowed by this Court, the fresh evidence admitted was only limited to some paragraphs in P's 2nd Affidavit as identified above. On the other hand, there are some unreasonable conduct on D's part at the court below which I think this Court is entitled to take that into account when considering the costs issue. 133.In these circumstances, upon reflection, I see it more appropriate to make a costs order nisi here, given the parties a fair chance to make further costs submissions if either side really sees a good cause to convince this Court to vary the provisional costs order below. 134.In light of the holdings and observations made by this Court in this Decision, I would make the following costs order nisi:-
135.Lastly, it remains for me to thank counsel for their helpful assistance.
Ms Karen Wong, instructed by Benny Kong & Tsai LLP, for the Plaintiff Ms Abigail Liu, instructed by Hau, Lau, Li & Yeung, for the Defendant [1] Bundle B2, p 169 [2] See: CA’s judgment under CACV 434/2021, para 7 [3] Bundle B5, pp.596-664 [4] Bundle B4, pp.546-547 [5] Bundle B4, p 431 [6] Bundle B5, pp 741O-742M [7] Bundle B4, p 449-450 [8] The Decision is produced at Bundle B4, pp 434-447 [9] Bundle A, p.115 [10] Bundle A, pp 152-161 [11] Transcript, Bundle A, pp 162-164 [12] Transcript, Bundle A, pp 32L-O [13] Transcript, Bundle A, pp 32T-33H [14] Transcript, Bundle A, p 84D-J [15] Transcript, Bundle A, p 80J-L [16] Transcript, Bundle A, p.80P-S, [17] Bundle A, p.26 [18] Bundle B5, pp 653-655 [19] see Transcript for the hearing on 6/6/2022 : Bundle B5, pp.747M-O, 748H-J, 748U-V, 749C-E, 751M-P, 752L-N, 754I-J. The learned Judge also indicated in that hearing it was inappropriate for him to determine P's application since both sides had failed to lodge any Skeleton Submissions, etc. in accordance with the Practice Directions properly setting out the bases/arguments for and against the application. [20] It is P's pleaded case herein that the relevant breach of executor's duties in refusing to place the cash in ICBC Account has continued up to date of the present SOC. [21] See : P's 1st affiBundle B5, pp.596-664 [22] P adduced some fresh evidence to explain, amongst others, the motive why she removed the interest loss claim from HCA 385 Action and re-instituted it under the present action, this Court allowed such part and some other parts of the fresh evidence to be admitted. I shall return to this point later when I deal with the New Evidence Summons below. [23] D's Skeleton Submissions at the hearing below consists of 20 pages and refers to 11 supporting authorities. [24] i.e. on 14/2/2024 [25] Bundle B3, p.317 [26] See : P's 4th Affidavit filed on 16/8/2024 to support the New Evidence Summons, paras 12 and 14 and exhibit "CCYS4-4" (at Bundle B5/413) - the appointment slip dated 19/2/2024 [27] Bundle B3, p.246 [28] as exhibited under CCYS2-8 of P's 2nd Affidavit [29] Bundle A, p.168 [30] D's 1st Affidavit, para 6. [31] It was mistyped as "CCYS2-9" though. [32] Bundle B4, p.446, para 30 [33] See : the relevant transcript at Bundle A, pp.54Q-55G |
Cases cited in this judgment
Further hearings and rulings under DCCJ 2920/2023