Waty Ratna v. Ferry-hartono and Another

DCMP 4097/2021

[2025] HKDC 1316

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4097 OF 2021

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REASONS FOR DECISION

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1.In these proceedings, the 1^st Defendant has been acting in person all along. On 3 June 2025, he filed a home-made notice of appeal for leave to appeal out of time against the order of Master Lo made on 17 December 2024.

Procedural History

2.The Plaintiff is the mother of the 1^st Defendant. It is the Plaintiff’s case that she was forced to move out of her own property due to the nuisance and harassment of the 1^st Defendant who had refused to move out despite repeated demands. On 29 October 2021, she commenced the present proceedings against the 1^st Defendant[1] seeking a possession order.

3.In February 2022, the 1^st Defendant applied for third party discovery against Hospital Authority for medical reports of the Plaintiff on the ground that she was suffering from dementia and a mentally incapacitated person. The Plaintiff opposed. After a hearing in September 2022, Master Maurice Lam ordered that the mental capacity of the Plaintiff be determined as a preliminary issue and granted leave to parties to adduce expert evidence by way of a single joint expert whose nomination should be agreed failing which the Court would select from a list of candidates proposed by the parties. With no agreement reached, a hearing was directed to determine the question of appointment of single joint expert.

4.The matter was heard by Master Maurice Lam on 10 January 2023 and Dr Wong Yee Him was appointed as the single joint expert on the preliminary issue (“Master Maurice Lam’s Order”). The Court also gave directions for the hearing including the single joint expert report be admitted as evidence without calling the maker unless party applied otherwise by 30 May 2023, which the 1^st Defendant did by way of summons dated 29 May 2023.

5.At the hearing on 8 June 2023, Deputy District Judge S P Yip ordered inter alia that Dr Wong to attend the hearing for cross-examination scheduled to take place on 27 June 2023. On the same day, the 1^st Defendant applied for leave to appeal against the said order and also filed a notice of appeal to appeal against Master Maurice Lam’s Order out of time.

6.On 19 June 2023, Deputy District Judge S P Yip dismissed both the leave application and the appeal and ordered the 1^st Defendant to pay the Plaintiff’s costs summarily assessed at HK$20,000 (“1^st Cost Order”).

7.At the preliminary issue hearing on 27 June 2023, Deputy District Judge S P Yip found that the Plaintiff is not a mentally incapacitated person and ordered the 1^st Defendant to pay the Plaintiff’s costs summarily assessed at HK$135,882 (“2^nd Costs Order”).

8.On 21 March 2024, a garnishee order nisi against Shanghai Commercial Bank was granted in respect of the 1^st and 2^nd Cost Orders together with interest thereon at judgment rate. On 17 December 2024, Master Lo made the garnishee order absolute (“Garnishee Order Absolute”). It is this order that the 1^st Defendant seeks to appeal out of time.

9.The 1^st Defendant’s home-made Notice of Appeal dated 3 June 2025 reads as follows:

“Take notice that the above-named [1^st Defendant] intends to appeal against the Decision of Master [Lo] given on the 17 day of December, 2024 ordering that

The defendant to pay costs of trial

(i) 20,000 dollars and

(ii) 135,882 dollars”

And further take notice that you are required to attend before …… on the hearing of an application by [1^st Defendant] for an Order that:

(1) appeal against the Master’s order out of time;

(2) reduction of the payment due to poverty;

(3) monthly instalment to be ordered.”

Leave to Appeal Out of Time

10.In The Hongkong and Shanghai Banking Corporation Ltd v Sy Shun Wu & Ors [2], at §§8-10:

“8. This Court has discretion to grant or refuse an extension of time for appealing. The court’s approach in this type of application is well established. The factors normally taken into account are:

(1) the length of the delay;

(2) the reasons for the delay;

(3) the chances of success of the intended appeal; and

(4) the prejudice to the other party if time is extended.

9. Where the delay is inexcusable, the party seeking an extension of time must show a real prospect of success on the merits, not just a reasonable prospect of success: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125.

10. Although prejudice to the other party is a ground for refusing to extend time, the absence of prejudice is not a ground for extending time: see Jotz, Klaus-Bernhard Markus v Hamawy, Tarek Mahmoud & Anor [2018] HKCA 144 at paragraph 11.”

11.Pursuant to Order 58 rule 2(4)(c) of the Rules of District Court, an application for leave to appeal against a judge’s interlocutory judgment, order or decision shall be made within 14 days. The delay is thus nearly 6 months.

12.In his affirmation filed on 3 June 2025, the 1^st Defendant claimed that copy of the sealed order was only sent to him by mail on 15 May 2025 and he only received the same on 29 June 2025.[3] However, he confirmed with the Court that he did attend the hearing before Master Lo when the Garnishee Order Absolute was made and was fully aware of it. It was just that he did not consider lodging an appeal until he received the copy of the sealed order.

13.Insofar as the intended appeal is concerned, the 1^st Defendant told the Court that he did not seek to dispute the amounts under the 1^st and 2^nd Costs Orders and was actually prepared to obtain a loan to pay the amount due to the Plaintiff which he estimated to be in the region of HK$200,000 to HK$250,000. That said, he made it clear that he would only pay to a “bailiff” or the Court because he suspected that his mother has passed away and so he did not trust her solicitors. He further emphasized that all he wanted was to resolve the dispute.

14.In the circumstances, there is no intended appeal against the Garnishee Order Absolute and his application for leave to appeal out of time must therefore be dismissed. In any event, I would have dismissed the application as per the notice of appeal because the 1^st Defendant has failed to explain the delay and to advance any ground for the intended appeal.

15.The Plaintiff asked for costs of the hearing and the 1^st Defendant did not oppose save for a lower amount. I order the 1^st Defendant to pay the Plaintiff’s costs summarily assessed at HK$1,500.

Ms Vivian Lam, of CL & Co Solicitors, for the plaintiff

The 1^st defendant appeared in person