廖群英 v. 賴雪鈴

DCMP 2522/2022

[2025] HKDC 1269

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2522 OF 2022

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DECISION

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A.  Introduction

1.By a Judgment dated 29 April 2025 (“the Judgment”), Judgment was rendered in favour of the Plaintiff (“P”) and against the Defendant (“D”), which at §73 concluded:-

(i)  For D to deliver to P vacant possession of the Property;

(ii)  D to pay to P mesne profits at the rate of HK$28,666 per calendar month from 1 July 2022 to the date of her delivery of the Property vacant possession to P; and

(iii)  D to pay to P management fees, rates, land rent, water, electric and gas fee incurred during the period of her trespass (that had not already been paid by P) from 1 July 2022 until the date D’s delivery of the Property vacant possession to P.

2.By a Summons dated 27 May 2025 (“D’s Summons”), D made two applications, namely, (1) the Leave Application and (2) the Stay Application for the following orders that:-

(i)  D do have leave to appeal against the Judgment as per the grounds as set out in the Draft Notice of Appeal annexed to D’s Summons;

(ii)  A stay of execution of the Judgment pending the determination of the intended appeal proceedings; and

(iii)  Costs of the present application be in the cause of the substantive appeal.

3.In support of its Summons, D has filed the 3^rd affidavit of Lai Suet Ling dated 26 May 2025 (“Lai 3^rd”). P, in response, filed the Affirmation of Cheng Wai Chi dated 9 June 2025 (“Cheng 1^st”) in opposition to D’s leave application.

4.By a letter dated 28 May 2025 issued by Liu, Chan and Lam, P’s Solicitors, P requested for transcript of the trial on urgent basis, and by a further letter dated 30 May 2025, for the audio record of the trial only for use “in the disposal of the Leave to Appeal Summons, opposing the subsequent application for leave to appeal to the Court of Appeal (if any) and opposing the appeal (if leave is granted to the Defendant)”. Leave was granted P to obtain both the transcripts and the recordings of the trial dated 4-7 and 28 March 2025 upon the usual undertaking and payment of prescribed fees.

5.On 18 June 2025, His Honour Judge Ko as Civil Listing Judge directed D’s Summons is to be dealt with on paper by Deputy District Judge Samuel Wong, the trial judge (“the Judge”), and that the parties are to lodge and serve their respective submissions by the dates stipulated and that D is to file a further affidavit/affirmation in response to the evidence in Cheng 1^st on or before 25 June 2025.

6.D lodged the 4^th Affidavit of Lai Suet Ling on 24 June 2025 (“Lai 4^th”) and D’s written submissions on 9 July 2025 (“D’s Subs”).

7.P filed its rebuttal submissions (“P’s Subs”) dated 16 July 2025. Transcript of the recording of the trial (T/1-370) was also obtained.

B.  Factual Background

8.In DCMP 2522/2022, 廖群英 (“P”), the Mother, claimed for recovery of vacant possession of Flat G on 5^th Floor, Yen Kung Mansion, Kam Din Terrace, No 1 Tai Mou Avenue, Taikoo Shing, Hong Kong (“the Property”) from her second born daughter, 賴雪鈴 (“D”). The Defence and the dispute relates to the beneficial ownership of the Property. P is the registered owner of the Property. D refused and refuses to leave the Property and claims beneficial ownership to the Property arising from the monthly sums of HK$4,000.00 she paid to 賴松興, the Father (“Father”). P and Father acquired the Property as joint tenants[1]. Father passed away in 2012 and P became sole legal owner of the Property by the operation of survivorship[2].

9.D alleged[3] that she and Father had the “1989 Oral Agreement”, that as soon as she was gainfully employed, she would contribute a sum of HK$4,000.00 per month for the purpose of funding the purchase of the Property and maintenance of the new family home. D went on to plead[4] that Father, in reliance on the 1989 Oral Agreement, went in search of a new family home. The new family home is the Property.

10.D further alleged[5] that there were further “Oral Representations” made by Father to her that she relied on, at the time of and after the purchase of the Property, on different occasions that Father and P “were merely holding the Property on trust for their children, and the Defendant and her siblings were the true beneficial owners of the Property”.

11.D relies on the alleged 1989 Oral Agreement and the alleged Oral Representations, refused and refuses to vacate the Property. Further, by her Counterclaim, D claims[6] to be “a beneficial owner” of the Property by operation of “common intention constructive trust”, “the presumption of resulting trust”, and/or “by reason of proprietary estoppel”.

12.It is undisputed P and Father had four children and all four (including D) had contributed HK$3,000 to HK$4,000 per month to the family[7]. Further, all the four children had stayed one time or another at the Property without paying any rent. D moved out of the property in about February 1997 and moved back to stay at the Property in 2000[8], where she stayed until now. D did not pay rent for the durations of her stay at the Property[9].

13.The parties to the action agreed eight issues for trial, of which, center to D’s allegations are the first two issues: (i) the alleged 1989 Oral Agreement[10]; and (ii) the alleged Oral Representations[11].

14.The Judge’s findings of fact, the applicable legal principles and the deliberations based on which the Judge came to the conclusions in the Judgment will not be recited herein. Those parts that are relevant to D’s present allegations will be dealt with below.

15.As to the Summons, it was attached with a Draft Notice of Appeal setting out D’s Grounds and Lai 3^rd dated 26^th May 2025.

C.  The Grounds in the Draft Notice of Appeal (the “Draft Notice” or the “NOA”)

16.Four grounds were enumerated and D alleges that:-

(1)  Ground 1:-

(i)  At §1(2) of the NOA, D wrote that before handing down the Judgment, the Judge attended a lunch gathering of about 12 people on around 10 April 2025 including P’s counsel and this meeting (“the Gathering”) raises serious concerns about the Judge’s judicial impartiality “as it creates an appearance of undue proximity between the Judge and a legal representative of a party”.

(ii)  D cites §112(a) of the Guide to Judicial Conduct (“the Guide”) to say that it would be inappropriate for judges to attend a private dinner party with counsel involved in an active case, but the Gathering was not private party as will be explained below, it was a formal function of The Hong Kong Institute of Arbitrators (“the HKIArb”).

(iii)  Citing §112(b) of the Guide, at §1(4) of the NOA, D says that judges should avoid discussing the case during social interactions. This is correct, but it is for D to adduce evidence in support of this allegation that the Judge had discussion with P’s counsel during the course of the 10 April 2025 formal function of the HKIArb.

(iv)  At §1(5) of the NOA, D alleges that the Guide requires a judge to inform and obtain the opposing parties’ agreement before attending such events. This is incorrect.

(v)  In the remaining §§1(6) to 1(8) of the NOA, D argues that failing to inform D and failing to seek D’s permission, the Judge had failed to observe judicial ethics and that undermines confidence. At §1(9), D says “a fair-minded observer, would reasonably question whether the judgment was objectively made and free from bias”.

(2)  Ground 2: D argues that the Judge’s evidentiary assessments “may have been influenced by bias”. It is enumerated at §§2(1) to (4), and §§2(5)(a) to (c) of the NOA with various findings of fact, in particular the finding against the alleged 1989 Oral Agreement and the alleged Oral Representations.

(3)  Ground 3: D argues that the finding of fact that P was an honest witness was “fundamentally flawed” as the Judge had failed to take into proper account P’s inconsistencies in her testimony. This is enumerated at §§3(1), 3(2)(a) and (b), 3(3) to (5) of the NOA.

(4)  Ground 4: D finally argues at §§4(1) to (8) of the NOA that the Judge erred in law in the dismissal of D’s proprietary estoppel claim.

D.  D’s evidence (the 3^rd Affirmation of D, Lai 3^rd)

17.D admitted at §3 of Lai 3^rd that before the hearing proceeded, the Judge had disclosed his connections with P’s counsel. The D’s account of the Judge’s disclosure is incomplete.

18.At §4, D’s evidence is that she now has concern about the Judge’s impartiality during the trial, as questioning was pre-maturely curtailed during cross-examination. D’s allegations in this respect will be dealt with and addressed below.

19.At §5, it is D’s evidence that she discovered through LinkedIn on around 10 April of a lunch “organized by the Hong Kong Institute of Arbitrators (HKIArb) of which the Judge is President”. D then consulted her legal team and at §7, it is D’s evidence that she was legally advised that the Judge was in breach of the Guide to Judicial Conduct.

20.However, it is D’s evidence that she and her legal team chose not to ventilate her alleged concern before the Judgment was rendered, but instead kept it up her sleeve until the Judgment was delivered on 29 April 2023. At §8, D then says that the Judgment against D was “unjust” as the Judge had not considered critical aspects of her case.[12]

E.  P’s evidence (the 1^st Affirmation of Cheng Wai Chi (Cheng 1^st )

Disclosure

21.What the Judge had disclosed at the start of the hearing is recorded under Part A (§§5-11) of Cheng 1^st. At §6:

“6. According to the records of the Plaintiff's legal team (whilst the Plaintiff is in the course of obtaining full transcripts of the Trial), the Judge made 3 important disclosures at the start of the Trial on Day 1 between 9:39am-9:40am. In particular, the Judge informed and disclosed to the parties that:-

(1) The Judge himself and the Plaintiff's Counsel (Mr. Adrian Leung) sit on the Council of the “Hong Kong Institute of Arbitrators” (“HKIARB”) of which, the Judge himself is the serving President and Mr. Leung is a member of the Council (the “HKIARB Disclosure”);

(2) In the professional capacity, the Plaintiff’s Counsel Mr. Leung previously worked on 2 court cases with the Judge in the latter’s capacity as counsel (the “Previous Court Cases Disclosure”);

(3) The Plaintiff's Counsel Mr. Leung is a ‘distant relative’ and ‘grand-nephew’ of his wife (the “Distant Relative Disclosure”).”

22.The disclosure is recorded in the Transcript T/2/F-I[13].

23.The hearing was adjourned to allow D’s legal team time to take instruction from D. This is recorded at §8 of Cheng 1^st. In the circumstances, this case was commenced with full disclosure and D, upon having been informed, chose to have the evidential hearing continue. The Judge was not asked to recuse. D’s instruction to continue after disclosure is recorded at the Transcript (T/2/T-U), it reads:

“Miss Ip: Thank you, your honour, for your indulgence. And I confirmed with my client that we can proceed with the trial, yeah.”.

The luncheon meeting

24.This was dealt with by P’s evidence at Part C (§§13-23 of Cheng 1^st with Exhibits CWC-1 to CWC-7)

25.The luncheon (“the Formal Event”) was arranged pursuant to a letter sent by HKIArb to the Hon Chief Justice Andrew Cheung dated 17 January 2025. The purpose was to introduce the new council to the Chief Justice as patron to HKIArb. (CWC-3 to Cheng 1^st). Madam Justice Mimmie Chan also joined the luncheon.

26.It was only about 26 February 2025 that the Judge was asked to hear this case. (CWC-4)

27.A sitting plan of the 10 April 2025 luncheon is exhibited at CWC-5. It shows the Judge sat next to the Chief Justice and Mr Adrian Leung sat almost opposite to the Judge.

28.In fact, a draft of the Judgment had been prepared before 10 April 2025 with the Judge’s findings of fact in place. At T/371 at the close of the hearing on 28 March 2025, the Judge told the parties: “…I’m mindful of the age of the Plaintiff, so I want to deliver this judgment as soon as possible. Judgement will be handed down within 14 days.”

F.  Guide to Judicial Conduct (“the Guide”)

29.§§112(a) and (b) of the Guide relied upon by D is recited[14].

30.It was a long-standing practice of HKIArb to introduce new council to the patron of the Institute and the 10 April 2025 was such an event of professional formal meeting. There is no evidence of any direct contact between the Judge and Mr Adrian Leung in the course of the 10 April luncheon, and what were discussed were insights and perspectives on dispute resolution and arbitration. (See Exhibit CWC-2).

G.  Legal Principles on apparent bias

31.The issue is whether the luncheon meeting of HKIArb by itself, shorn of other evidence, is probative of actual or apparent bias, upon §8 of Lai 3^rd, in which D wrote she “found the decision unjust and that the Judge had failed to properly consider the critical aspects of [her] case”.

32.It was held in the case Jung Science Information Technology Co Ltd v ZTE Corp [2008] HKLRD 776 per the judgement of Deputy Judge Lisa Wong SC at (1) that “The same test applied in determining an issue of apparent bias on the part of arbitrators as it did to judges, namely, whether a hypothetical objective fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased. (AT&T Corp v Saudi Cable Co [2000] 2 Lloyd’s Rep 127, Re Medicaments Related Classes of Goods (No. 2) [2001] 1 WLR 700, Porter and Magill [2002] 2 AC 375 applied)”. [my emphasis]

33.Given the circumstances and nature of the 10 April 2025 formal luncheon, a hypothetical objective fair-minded and informed observer, having considered and informed of the relevant facts, including the purpose of the meeting, the sitting plan and evidence as to what transpired at the meeting, would not have concluded that there was a real possibility that there was apparent bias.

34.In the recent Court of Appeal case Re Li XiaoMing [2021] HKCA 779, VP Kwan wrote at §18:“The lateness of the debtor’s attempt to seek recusal, and the fact that he did not raise his objection at the hearing by putting forward evidence before the judge to support his contention that it would not be appropriate for the judge to hear the matter are strong indications that the attempt at seeking recusal is but a tactical move made without conviction as to its propriety. As stated in Komal Patel v Chris Au [2018] HKLR 328 at §155 ‘... the failure to raise an objection as soon as a party became aware of the matter suggesting the possibility of bias and the lateness of an objection (and the absence of any explanation for the delay) is a matter that a fair-minded and informed observer would take into account, together with all the circumstances when determining whether the reasonable apprehension of bias test has been satisfied’.”

35.As D did not attempt to seek recusal after being brought to be aware of the 10 April 2025 formal meeting of the HKIArb before the Judgment was rendered, that should be taken into account by the objective fair-minded and informed observer.

H.  Legal Principles dealings with challenges to findings of fact by the Court

36.In a recent decision of Ng Koon Fai v To Chung Yin & Anor [2025] HKDC 429, HH Judge Alan Kwong (as he then was) further summarized and explained the applicable principles in dealing with challenges to findings of fact in a leave to appeal application, at §7:

“7. It is trite that an appellate court will not lightly intervene a trial judge’s primary factual findings, unless (i) there is no evidence in support; (ii) the trial judge misunderstood the evidence; or (iii) no reasonable judge could have reached such findings…”[15]

37.It is well established that an appellate court should not interfere with the exercise of a judge’s discretion unless it is satisfied that the judge has erred in law or in principle, or if she has taken into account some matter which she should not have taken into account, or has left out of account some matter which she should have taken into account, or if the decision was so plainly wrong that it must have been reached by a faulty assessment of the weight of the different factors which have to be taken into account: Tai Fook Futures Ltd v Cheung Moon Hoi, CACV 103/2005 (unreported, judgment dated 23 October 2006) per Yuen JA at §15; Carlos Manuel Kwong v Lo Kam Wing & Anors, CACV 128/2005 (unreported, judgment dated 3 November 2005) per Yuen JA at §28.

I.  The intended Appeal

38.In making the application for leave to appeal, D has not identified the relevant provision or submitted on the applicable tests.

39.Section 63(1) of the District Court Ordinance (Cap 336) (“the DCO”) provides that an appeal can, with leave of a judge or the Court of Appeal, be made to the Court of Appeal from every judgment, order or decision of a judge in any civil cause or matter.

40.Further, leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the DCO.

41.The test for granting leave to appeal under section 63A(2) of the DCO was explained by Fok JA in KNM v HTF, HCMP 288/2011 (unreported, judgment dated 7 September 2011) at §§8-9:-

“8. Leave to appeal shall not be granted under section 63A of the District Court Ordinance unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

9. The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

10. Where an application for leave to appeal has been refused by the Judge below, a further application for leave may be made to this court within 14 days of the date of refusal: RDC Order 58 rule 2(4A)”. [Emphasis added]

J.  The Grounds

Ground 1

42.D’s Ground 1 is that the 10 April luncheon “demonstrated actual, if not apparent, bias, raising concerns about the fairness of the proceedings”. I disagree. The 10 April official function of HKIArb could not have caused a hypothetical objective fair-minded and informed observer to conclude that there was a real possibility that there was apparent bias. Leave to appeal as such should not be granted pursuant to Ground 1 under section 63A of the DCO, as this Court is not satisfied that an appeal based on Ground 1 has a reasonable prospect of success.

Ground 2

43.D’s Ground 2 comprises of five sub-grounds at §§2(1) to 2(5) of the NOA:

(i)  at §2(1), it is alleged this Court had wrongfully dismissed the 1989 Oral Agreement and failed to assess circumstantial and testimonial evidence and over-emphasized the absence of written documentation in respect of the Oral Representations. This allegation is incorrect given the detailed reasoning that went beyond the absence of written documentation.

(ii)  The matter of the 1989 Oral Agreement is the first of the “Eight Agreed Issues” for trial recited at §23 of the Judgment. It was recognized that the alleged 1989 Oral Agreement (Issue 1) and the alleged oral representations (Issue 2) were centered to D’s Counterclaim and D had to adduce evidence in support of these two allegations.

(iii)  The alleged 1989 Oral Agreement was dealt with at §§31-38 of the Judgment by an analysis of the D’s pleaded allegations at §§4(5)(g), (h) and (i) of the AD&CC. The alleged 1989 Oral Agreement was discussed in terms of the 3 sub-issues namely: (a) whether Father had expressed to D his concern of financial difficulties[16]; (b) whether by monthly payment of HK$4,000.00 to Father, it was agreed D would gain beneficial ownership of the Property or a share of it; and (3) whether Father searched for a new home in reliance of the alleged 1989 Oral Agreement.

(iv)  Upon the facts at §34 of the Judgment, the Judge was not satisfied Father had the alleged financial concern, and as such Father could not have expressed financial concerns to D as alleged[17]. Second, at §36 of the Judgment, as all the siblings contributed similar amounts monthly which was recorded in Father’s Notebook, the Judge was not convinced that Father had agreed to treat D differently and agreed that her month payments would result in her entitlement to the Property or a share of it as alleged. Third, upon the evidence (at §37 of the Judgment), it was P and not Father who went to look for a bigger home. Had the family’s finance been a concern to Father and P, the family could have continued to stay in the Wanchai flat held by P[18], instead of looking for a larger place. At §§12 and 13 of D’s witness statement, she only mentioned that Father “理財有道” and that she contributed not less than HK$ 4,000.00 for the purchase of the Property. There was nothing about the alleged Oral Agreement between D and Father nor was there any mention of the alleged Oral Representations.

(v)  Due to (1) the Judge’s factual findings, (2) D’s lack of corroborating evidence in any subsequent communication, such as in family communications, the Judge rejected the D’s allegation of the 1989 Oral Agreement, which, in fact could not have co-existed with D’s allegation of Oral Representations (Issue 2), in which it was alleged that Father only held the Property in trust for the children.

(vi)  The Judge dealt with Issue 2 of the Agreed List of Issues, the Oral Representations, at §§39 to 46 of the Judgment. Importantly, D, when examined, failed to specify the identity any of the friends or relatives said to have been present on the occasions of the alleged meetings during which the alleged Oral Representations were made. In the absence of any particulars or evidence which could be procured from such friends or relatives, the Judge rejected D’s Oral Representations allegation. It should also be mentioned during questioning at trial, D further alleged that Father had imposed two conditions for ownership of the Property, which were not pleaded nor appeared in her witness statement. As the Property was held by P and Father as joint tenants, Father could not have uttered that he held voluntarily the Property in trust for the children, which, again is contradictory to the two conditions D said Father imposed. It is disagreed that the Judge had imposed incorrect standard of evidence in respect of Issue 2.

(vii)  With the two key allegations rejected, Ground 2 §§2(2), 2(3), 2(4) and 2(5) of the NOA, in which D now tries to tie the alleged 1989 Oral Agreement and the Oral Representations to her monthly contributions are clearly unsupported and her arguments not made out. The Judge found as a fact that there is no evidence that D’s contributions were made for the purpose of the alleged 1989 Oral Agreement or the alleged Oral Representations. These are at §§49 to 50 of the Judgment that the monthly contributions of the children were “作為孝敬文母的饋贈” to be used by the parents at will.

(viii)  As such, given the legal principles applicable to the challenge of findings of fact by Court as cited under section H (§§36-37) above, leave to appeal should not be granted pursuant to Ground 2 §§ 2(2) to 2(5) under section 63A of the DCO, as this court is not satisfied that an appeal based on any or all of Grounds §§2(2) to 2(5) has any prospect of success, as the findings of the Judge is not “plainly wrong”.

Ground 3

44.D at Ground 3 §§ 3(1) to 3(5) of the NOA alleges that the Judge erred in finding that P was a credible witness. This again is a challenge to the fact finding by the Judge. The Judge dealt with P’s credibility at §28 of the Judgment. As to the alleged 1989 Oral Agreement and the alleged Oral Representations which were pleaded to have been made in the absence of P, she could not and did not give any evidence. As to P’s evidence when cross-examined, the Judge took into account her advanced age late 80s, her lack of education as she could only work as domestic helper and cleaner[19] to earn in support of the family when required. When P was repeatedly questioned by the D’s counsel, on her knowledge and use of WhatsApp in 2012[20] and stamp duty, P did answer Ms Ip’s repeated questioning but these are matters irrelevant and immaterial to the core issues. Even if the Judge’s finding that P was an honest witness erred, which she was not, it would not have affected the conclusion. The same goes for whether she had offered to help Colin financially.

45.As such, given the legal principles applicable to the challenge of findings of fact by Court as cited under section H above, leave to appeal should not be granted pursuant to Ground 3 §§3(1) to 3(5) of the NOA under section 63A of the DCO, as this court is not satisfied that an appeal based on any or all of Grounds 3(1) to 3(5) has any prospect of success.

Ground 4

46.D’s Ground 4 centers on D’s proprietary estoppel claim. In fact, Issue No 5 of the List of Agreed Issues was whether on the facts and evidence D can establish any or all of 3 equitable defences, namely (a) common intention constructive trust, (b) resulting trust, or (c) proprietary estoppel.

(i)  The principles of proprietary estoppel was recited at §56 of the Judgement citing the CFA case of Cheung Lai Miu v Cheung Wai Shing (2021) 24 HKCFAR 116 at §23 as follows:-

“23. Put shortly, the requirement of equity to recognize and give relief based on proprietary estoppel are: (a) a representation or assurance made to the claimant; (b) reliance thereon by the claimant; and (c) detriment to the claimant in consequence of that reliance.”

(ii)  At §59 of the Judgement, the Judge found that Father had not made the alleged Oral Representation to D with words to the effect as pleaded. As such there could not have been any reliance, let alone detrimental reliance by D.

(iii)  At §§57 and 58 of the Judgment, it was noted that D had enjoyed ‘rent-free’ accommodation throughout and payment of utilities, and some household expenses will not, per se, entitle D to beneficial interest of the Property. Further, such household expenses incurred could not amount to ‘detriment’ as D had been enjoying her occupation of the Property rent free for the periods of her occupation, including the period since 2000 up to the present, that is over 25 years. See. Jong Lan Kiauw v Jong Yang Hwa & Anor, DCMP 2540/2008, §§21-23 per HHJ Mimmie Chan (as she then was). Other issues arising from proprietary estoppel were also clearly set out at §§60-62 of the Judgment.

47.As such, leave to appeal should not be granted pursuant to Ground 4 §§4(1) to 4(8) of the NOA under section 63A of the DCO, as this court is not satisfied that an appeal based on any or all of the Grounds §§4(1) to 4(8) has any reasonable prospect of success.

D’s 3^rd Affidavit

48.It is noted that D in §4 of Lai 3^rd further alleges that the Judge had during trial prematurely on multiple occasions curtailed questioning and those procedural decisions were disadvantageous to D. D alleges that “… counsel was restricted from clarifying key financial matters, including mortgage payments, property sale arrangements, and exact amounts involved, which were central to my defence”.

49.In fact, there was minimal intervention at the trial. The trial is recorded in detail at §§12(1) to (6) of Cheng 1^st.

50.Further, the full transcript is now available and D can comb through the Transcript if it chooses to rely on transcript passages to seek leave from the Court of Appeal. In fact, there was no restriction to D’s counsel to clarify financial matters as Ms Ip now says as central to D’s defence. See Ms Ip’s repeated questioning P as to whether D paid the monthly sums to Father at T/39-40.

“問：咁我再問妳喇，咁其實妳知唔知道究竟被告人有冇畀錢妳先生㗎？

…

答：佢話畀咗老竇吖嘛，咁我又冇問。

…

問：…我重複問妳嘅，我話妳知唔知道究竟被告人有冇畀過錢？

答：但係冇畀我吖嘛。

…

答：佢話畀左幾千鈫，係呀，我唔知道喎。

…

COURT: You may ask one further time. Yeah, please do.

...

問：咁妳有冇去確認...

答：我冇理到喎，我又冇問...

...

問：妳有冇要求過佢畀呀？

答：冇。

...”

Another example was Ms Ip questioning P on the amount kept in bank. This is recorded at T/67-69.

51.The Court did not prevent Ms Ip from asking further questions about the three to four hundred thousand Hong Kong dollars, whether placed in bank or in the drawer.

52.Summing up, I accordingly refuse D’s leave to appeal application upon any or all of the grounds as set out in the NOA.

K.  Stay of Execution pending determination of the intended appeal

53.In view of the refusal to give D leave to appeal, a further application for leave under Order 58 rule 2(4A) of the RDC may be made by D to the Court of Appeal, within 14 days of the date of refusal.

54.Ma J (as he then was) set out in §§6-10 of Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 the principles upon which a stay application is to be considered as follows:

“6. Though in the court’s discretion whether or not to grant a stay, it is important to bear in mind that the starting point is RHC O 59, r 13(1):

‘Except so far as the court below or the Court of Appeal or a single judge may otherwise direct —

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;

(b) no intermediate act or proceeding shall be invalidated by an appeal.’

7. In other words, unless the defendant can justify a stay of execution, one will not be ordered. The practice of the court is that justification can be demonstrated only if good reasons exist.

…

9. In the context of these two factors, I would make the following observations:

(1) In determining the question whether or not an appeal would be rendered nugatory, the court must of course first have regard to the nature of the order that is the subject matter of the appeal. If the order appealed against is a money judgment, the court will require evidence as to why the levying of execution will result in the appeal being rendered nugatory … see Ketchum International plc v Group Public Relations Holdings Ltd [1997] 1 WLR 4, at 10H.

(2) That said, whatever the nature of the order or judgment appealed from, the court will still require evidence as to why an appeal will be rendered nugatory in the event of a stay not being granted. The requisite quality of the evidence will, of course, depend on the nature of the order or judgment appealed against.” [my emphasis]

55.In Lai 3^rd, at §10(2), D argues that “immediate enforcement would impose undue financial hardship on me, particularly in satisfying the financial obligations set out in the Judgment”. It is not D’s submission that immediate enforcement would render an appeal nugatory.

56.It is noted that D that has continued to overstay at the Property after being requested by P to vacate and she is not the legal owner of the Property. As has been stated, the leave application does not have reasonable prospect of success. As P is of an advanced age, it is particularly undesirable to deprive P of the fruits of her success. As such, the request for a stay of execution pending leave application to the Court of Appeal is refused.

57.In P’s Subs, at §57, P submits that costs of D’s Summons be paid by D to P forthwith with certificate for counsel and for the costs to be summarily assessed.

58.Given the dismissal of D’s Summons, and based on the principle of costs to follow the event, it is ordered that the costs incurred by P arising out of D’s Summons be paid by D to P forthwith with certificate for counsel and the costs is summarily assessed at HK$90,000.00.

Mr Adrian Leung, instructed by Liu, Chan & Lam, for the Plaintiff

Miss Lilian Ip and Miss Tanny Cheung, instructed by Lee & Associates Law Office, for the Defendant