Chung Suet Wan v. Chung Suet Han and Another

CAMP 69/2025, [2026] HKCA 1069

On An Intended Appeal from [2025] HKDC 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 69 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 5534 OF 2020)

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J U D G M E N T

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Hon Harris J (giving the Judgment of the Court):

Introduction

1.On 23 December 2024, H H Judge G Chow (“Judge”) dismissed the Plaintiff’s application for (i) an extension of time to apply for leave to appeal against the Judgment handed down on 24 October 2024 (“Judgment”)[1] and (ii) a stay of execution of the Judgment (“Decision”)[2]. On 25 March 2025, the Judge also dismissed the Plaintiff’s application for leave to appeal against the Decision (“Leave Decision”)[3].

2.By a summons filed on 7 April 2025 (“Summons”), the Plaintiff made an application to this Court for leave to appeal against the Leave Decision.

Background

3.This action concerns a dispute over the beneficial ownership of a property known as Flat D on the 2^nd Floor of Block 4 (Fu Sun Building), No 36 Tit Shu Street, Fu Tor Loy Sun Chuen Stage 2, Kowloon (“Property”). The Plaintiff is the elder sister of the 1^st Defendant. The 2^nd Defendant is the husband of the 1^st Defendant.

4.It is not in dispute that at the material time, the Plaintiff contributed two-thirds of the down payment for the purchase of the Property and the 2^nd Defendant contributed the remaining one-third. The Plaintiff claimed that although the 1^st Defendant was unable to contribute her share of the down payment, the parties were registered as legal joint tenants, but there was a common intention that the 1^st Defendant held no beneficial interest in the Property and was merely a trustee holding the interest for the sole benefit of the Plaintiff (“claimed common intention”). It was the Defendants’ case that the Plaintiff had lent the 1^st Defendant her one-third contribution when purchasing the Property, and the 1^st Defendant held a beneficial interest as it was agreed that she would repay the one-third either by instalments or from her share of the profit upon the resale of the Property. An arrangement was also reached whereby the Plaintiff would not be responsible for mortgage repayments and expenses that exceeded her share of the rental income in order to account for the loan she made to the 1^st Defendant.

5.By way of the Judgment, the Judge after trial found against the Plaintiff, holding that she failed to discharge her burden of proof to show the claimed common intention existed between the Parties.

The Decision and Leave Decision

6.Under Order 58, rule 2(4)(b) of the Rules of the District Court (Cap 336H), an application for leave to appeal had to be made within 28 days of the Judgment, i.e. on or before 21 November 2024. On 20 November 2024, just a day before the deadline, the Plaintiff made an application for an extension of time to appeal against the Judgment and a stay of execution of the Judgment. In the two supporting affirmations, the Plaintiff claimed that (i) she was unable to make the leave application within time due to the default and negligence on the part of her former solicitors; (ii) given the short delay, there would not be any real prejudice to the Defendants if a time extension was granted and (iii) time should be extended without any further consideration of the merits as this would likely escalate the application into a mini-hearing of the appeal. A draft Notice of Appeal was exhibited to her 2^nd affirmation.

7.In the Decision, the Judge found that the delay although insubstantial was inexcusable and that the Plaintiff had failed to show a reasonable prospect of success on the merits. The argument made by the Plaintiff relying on Tridant Engineering Company Limited v Mansion Holdings Limited & Another[4], namely, that time should be extended without consideration of the merits was also rejected by the Judge.

8.The Plaintiff subsequently applied to the Judge for leave to appeal against the Decision, relying on the following grounds:

(i)  The Judge was plainly wrong in failing to exercise her discretion to grant an extension of time for leave to appeal (“Ground 1”);

(ii)  The Judge erred in law when considering Tridant (“Ground 2”); and

(iii)  The Judge failed to fully consider the law in respect of an appeal against decisions on a question of fact (“Ground 3”).

9.The Judge found that the appeal did not have a reasonable prospect of success and that there was no other reason in the interests of justice that the appeal should be heard. By way of the Leave Decision, the Plaintiff’s application for leave to appeal against the Decision was dismissed.

Appeal to this Court

10.On 7 April 2025, the Plaintiff made a renewed application to appeal against the Leave Decision, relying on exactly the same grounds.

11.Such an application to the Court of Appeal for leave to appeal against a decision refusing leave to appeal against another decision not to extend time to appeal is inappropriate, as this is cumbersome, and time and costs consuming. Following the well-established approach this court has adopted since Tang Chai On v Tang Sing Ki [2016] 5 HKLRD (CA) at [3]-[8], we will also treat the present application effectively as a renewed application for extension of time to apply for leave to appeal against the Judgment.

Ground 1

12.This ground essentially challenged the Judge’s failure to consider relevant matters with the result that the Plaintiff’s reasons for delay were erroneously held to be inexcusable. As pointed out by the Judge[5], an appeal would be futile if a Plaintiff fails to pinpoint an error made by the first instance judge and simply rehearses the contentions that were rejected. See 秦錦釗 及 香港特別行政區[6].

13.The Judge had already taken into account the explanation given by the Plaintiff for the delay as can be seen in the Decision, in which she first summarised the Plaintiff’s reasons for the delay in paragraph 6 and then proceeded to analyse why they were inexcusable in paragraphs 10 and 13. The Plaintiff is simply repeating her argument that the delay was not her fault but the fault of her former solicitors without identifying any error made by the Judge.

14.In the Plaintiff’s written statement, the Plaintiff repeats her arguments as to why the cases cited by the Judge should be distinguished. We agree with the Judge’s reasoning in paragraph 10 of the Leave Decision that the Plaintiff’s arguments do not address the issue.

15.Ground 1 is unarguable and is rejected.

Ground 2

16.This ground challenges the Judge’s interpretation of Tridant, in which Keith JA states that “if an informed assessment of the prospects of success of an appeal can only be made at a hearing equivalent to the hearing of the appeal itself, the overall interests of justice require the would-be Plaintiff’s time to appeal be extended without any consideration of the merits” (see 790F-H). Unison Knitwear Limited v Rich Easy Limited[7]  and Palata Investments Limited & Others v Burt and Sinfield Limited & Others[8] were relied on in support of the Plaintiff’s argument. Neither of them established a rule that merits need not be considered and in both cases the delay was excusable (see 858E-859B of Unison and 947G-948B of Palata).

17.As pointed out by the Judge in paragraphs 20 to 21 of the Decision, the crux of Tridant is that where the nature of the dispute requires a lengthy and time-consuming hearing in order to assess the merits, time may be extended without a consideration of the merits. Such cases will be rare. This is plainly not such a case. The Judge was familiar with the case having heard the trial of the action and Mr Tang was in a position to address the Judge on the merits given his role in drafting the Notice of Appeal.

18.Ground 2 is unsustainable.

Ground 3

19.This ground asserts that the Judge erred by failing to fully consider the law in respect of an appeal against decisions on a question of fact, relying in particular on paragraph 19(5) of Yu Pak Kan v Busy Firm Investment Limited[9] which considers the kinds of fact finding mistake that warrant an appellate court’s intervention, namely, (i) the conclusion was reached without evidence in support; (ii) the conclusion was based on a misunderstanding of the evidence or (iii) the conclusion was one which no reasonable judge could have reached.

20.The Plaintiff argues that the Judge erred in two respects. First, she failed to view the Defendants’ evidence with great suspicion as there was simply no evidence to demonstrate that the 2^nd Defendant had paid the mortgage despite holding one-third of the share of the Property, and secondly, that the terms of the Investment Agreement alleged by the Defendants were uncertain.

21.It is clear that the Judge had in mind the principles concerning an appeal on a question of facts as evidenced from paragraph 18 of the Leave Decision. The Judge also pointed out that she had not addressed in the Decision the matters referred to in the preceding paragraphs because they were not raised in the Plaintiff’s draft Notice of Appeal. As they were not included as a ground in the draft Notice of Appeal, the fact that the Judge did not deal with them was not an error.

22.Regarding the lack of evidence of the 2^nd Defendant paying the mortgage, we also agree with the Judge that it was not a finding made without evidence as there was contemporaneous documents that supported it, see paragraph 52(7) of the Judgment. As to the uncertainty of the terms of the Investment Agreement, again the Plaintiff did not rely on this point in her draft Notice of Appeal when challenging the credibility of the 2^nd Defendant. Notwithstanding this, the Judge explained in paragraph 61 of the Judgment why the making of the Investment Agreement was credible and this was a decision open to the Judge to make. In any event, the Judge dismissed the Plaintiff’s case because she failed to prove on the balance of probabilities that a common intention existed between the Parties that the ownership of the Property was different from the registered legal interests, so the points raised in Ground 3 are arid as they did not feature in the reasoning that led to the Judge’s conclusion.

23.Ground 3 is without merit.

Disposition

24.For the foregoing reasons, we considered that none of the proposed grounds of appeal has a reasonable prospect of success, nor is there any other reason in the interests of justice why the appeal should be heard. Accordingly, there is no merit in this application and the Summons is dismissed.

25.As for costs, we see no reason why costs should not follow the event. We therefore make an order nisi that the Plaintiff shall pay the Defendants costs of this application, to be summarily assessed if not agreed, with certificate for counsel.

26.The Defendants are directed to file and serve a statement of costs within 7 days from the date of this Order. The Plaintiff is directed to file and serve a statement of opposition (not more than one page) within 7 days thereafter.

Written submissions by Mr Kenneth Chan and Mr Hughes Tang, instructed by Chung & Kwan, for the Plaintiff

Written submissions by Mr Kev L H Wan, instructed by KWC & Associates, for the 1^st & 2^nd Defendants