Ku Camey v. Ku, Scarlet, The Executrix of the Estate of Chen Elsie, Deceased and Another

CAMP 231/2025, [2026] HKCA 1518

On intended Appeal From [2024] HKCFI 3316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 231 OF 2025

(ON INTENDED APPEAL FROM HIGH COURT ACTION NO 1482 OF 2022)

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BETWEEN

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JUDGMENT

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Hon Ng J (giving the judgment of the court):

INTRODUCTION

1.By a summons dated 3 December 2025 (“Summons”), the 1^st Defendant made a renewed application for extension of time to apply for leave to appeal against the order of Winnie Tsui J (“Judge”) dated 25 November 2024 (“Order”). By the Order, the Judge, inter alia, dismissed the 1^st Defendant’s summons dated 20 November 2023 for security for costs against the Plaintiff. The Judge’s reasons can be found in her decision dated 25 November 2024 (“Decision”).

2.On 19 November 2025, the Judge also dismissed the 1^st Defendant’s application for extension of time to apply for leave to appeal against the Order (“Leave Decision”).

3.The parties have respectively filed their written Statements. Pursuant to Order 59, rule 2A(5) of the Rules of the High Court (Cap 4A) (“RHC”), we find it appropriate to deal with this application on paper.

BACKGROUND

4.The Plaintiff, the 1^st and 2^nd Defendants are daughters of Madam Chen Elsie (“Deceased”) who passed away on 21 August 2021. Previously, on 17 December 2009, the Deceased made a will disposing of her assets in Hong Kong (“HK Will”). Under the HK Will, the 1^st Defendant was appointed as the sole executrix of the Deceased’s estate (“Estate”) and the 3 daughters, inter alios, are beneficiaries under the HK Will. In July 2022, probate was granted to the 1^st Defendant (“Probate”).

5.In November 2022, the Plaintiff commenced these proceedings against the 1^st Defendant as the sole defendant primarily to remove her as the executrix and to appoint a replacement administrator. In December 2023, the Plaintiff applied to join the 2^nd Defendant as a necessary party which was granted.

6.By summons dated 20 November 2023, the 1^st Defendant applied for security for costs (“Security for Costs Summons”) under RHC O 23 r 1 against the Plaintiff for $1.4 million up to the setting down of the trial. By summons dated 13 December 2023, the Plaintiff applied for summary judgment against the 1^st Defendant for her removal (“ Summary Judgment Summons”). The Plaintiff’s case for the removal of the 1^st Defendant is based on the latter’s conduct in relation to the administration of the estate. The material events took place from after the Probate was granted in July 2022.

7.By the Order, the Judge granted the Summary Judgment Summons, removed the 1^st Defendant as the executrix and appointed a solicitor as the administrator of the Estate. The Judge also dismissed the Security for Costs Summons with costs against the 1^st Defendant personally. The entire Action was disposed of.

8.On 22 April 2025, the Judge handed down another decision in [2025] HKCFI 1564. By way of paper disposal, the Judge dismissed the 1^st Defendant’s application to vary the nisi order in which she asked for the Plaintiff’s costs to be paid out of the Estate, instead of by her personally. The nisi order was made absolute.

9.After a delay of almost 6 months, by summons dated 16 May 2025, the 1st Defendant applied for an extension of time for leave to appeal against the Order dismissing her Security for Costs application.

THE DECISION and THE LEAVE DECISION

10.In relation to the Summary Judgment Summons, the Plaintiff’s 2 complaints were:

(1) the 1^st Defendant had failed and/or refused to fulfil her duty to provide to the Plaintiff a proper account together with supporting documents regarding the administration of the Estate.

(2) the 1^st Defendant has failed to distribute one-third of the residuary estate to the Plaintiff and had unreasonably imposed the condition that distribution would be put on hold unless the Plaintiff agreed to the 1^st Defendant’s calculations regarding the value of the Estate.

11.The Judge found the Plaintiff’s complaints were justified and thus allowed the Summary Judgment Summons. Mr Lau for the Plaintiff confirmed to the Judge that the entire Action would be disposed of upon the granting of summary judgment.

12.In relation to the Security for Costs Summons, the Judge found that it was unnecessary to deal with this application because summary judgment had been granted to the Plaintiff. Nevertheless, the Judge went on to hold that even if she was wrong in granting summary judgment to the Plaintiff, the Security for Costs Summons should still be dismissed because the Judge was not satisfied the Plaintiff was ordinarily resident out of the jurisdiction. The Judge’s reasons can be found in [74] of the Decision as follows.

“74. There is sufficient evidence before me showing that Camey, now retired, is splitting her time between the US and Hong Kong. She says that after spending her entire working life in the US, she has decided to settle permanently in Hong Kong. She is in the course of relocating herself from the US to Hong Kong, pending the sale of her house in Texas. She has already put that up for sale. She has produced a number of Hong Kong documents in support of her assertion, eg, her Joy Yu card, her driving licence, a document from the Electoral Office showing her status as a registered voter. Most notably, she has produced travel records issued by the Immigration Department for the period from September 2022 to February 2024. The records show that she was in Hong Kong for more than half of that time. At the hearing, Ms Lin accepted that a person may have dual places of ordinary residence. On the materials before me, I conclude that Camey can be said to be ordinarily resident in Hong Kong.”

13.In the Leave Decision, the Judge dismissed the 1^st Defendant’s grounds of appeal in a few paras which for ease of reference are set out below.

“129. On 25 November 2024, I dismissed Scarlet’s application for security for costs. Her summons seeking leave to appeal was taken out on 16 May 2025, almost six months later. This is therefore an application seeking an extension of time to apply for leave to appeal.

…

131. Here, the delay was substantial. It came about this way.

132. In the notice of appeal lodged against the [Decision dated 25 11 2024] Scarlet also appealed against the security for costs decision. She and her legal representatives were under the mistaken belief that no leave was required for the latter appeal. After the mistake was pointed out through correspondence from the Registrar of Civil Appeals and the Court of Appeal in April 2025, Scarlet took out the present summons.

133. I do not consider that in the circumstances, it can be said that the delay is wholly excusable. A mistake about the procedural rule which results in real delay in the progress of an action will not be looked at favourably.

134. Having said that, there is no obvious prejudice suffered by Camey if an extension of time is granted.

135. Hence, whether to extend time in this case will boil down to whether the proposed grounds are strongly arguable.

Grounds 1 and 3

136. Grounds 1 and 3 can be dealt with together. Under these grounds, Scarlet contends that I erred in law and in fact by holding that Camey can be said to be ordinarily resident in Hong Kong and by giving undue weight to Camey’s evidence which allegedly showed her connection with Hong Kong: para 74. More specifically, I failed to consider that Camey had herself admitted that her plan for relocating to Hong Kong had started in 2018 and that such relocation had not materialised for six years as of the hearing.

137. Mr Chain submits, and I agree, that this is an appeal against a factual finding. There is a high threshold to meet. In her submissions, Ms Lin is simply reciting the arguments made at the substantive hearing, which I had considered and dealt with.

138. I do not find grounds 1 and 3 to be strongly arguable.

Grounds 2 and 4

139. Grounds 2 and 4 can be grouped together. Under these grounds, Scarlet points out that the principle of dual ordinary residence has not been conclusively decided in Hong Kong in the context of Order 23, rule 1(1)(a), and that I erred in law in holding that by solely relying on the reason that Scarlet was ordinarily resident in Hong Kong, the security for costs application should be dismissed. I failed to consider the legal question of whether the court has jurisdiction to order security for costs against a person ordinarily resident in Hong Kong if she is also ordinarily resident out of the jurisdiction, which question is answered in the affirmative by the Court of Appeal in Singapore in Tjong Very Sumito v Chan Sing En [2011] SGCA 40 at para 50.

140. I made the following findings in the substantive decision:

(1) I was not satisfied that Camey was ordinarily resident out of the jurisdiction: para 73.

(2) She could be said to be ordinarily resident in Hong Kong: para 74.

141. Accordingly, the issue of dual residence does not arise. There is no need for this issue to be resolved.

142.   For this reason, no leave should be granted for these grounds.”

DELIBERATION

14.In the draft Notice of Appeal (“draft NOA”), the 1^st Defendant advanced the following grounds (“Grounds 1 to 4”)[1]:

(1) The Judge erred in law and in fact by holding that the Plaintiff can be said to be ordinarily resident in Hong Kong.

(2) For the purpose of a security for costs application, whether or not the principle of dual ordinary residence is applicable under RHC O 23 r 1(1)(a) has not been conclusively decided in Hong Kong.

Chris Au v Steve Yoon Soo Kim unrep., HCA 1285/2014, 25 November 2016, at [79]-[80], per DHCJ Marlene Ng (as she then was).

(3) The Judge erred in giving undue weight to the Plaintiff’s evidence which allegedly showed her connection (including the future plan or retirement plan) with Hong Kong at [74] of the Decision. In fact, the Plaintiff admitted that the “plans” started in 2018 but they were yet to be crystallised after 6 years. In short, the Plaintiff is ordinarily resident outside of Hong Kong, and she does not have assets of fixed and permanent nature in Hong Kong. Thus, the 1^st Defendant cannot enforce any costs order against the Plaintiff and her share of the residuary estate: Snell’s Equity 34th Ed. at 33-002; and CCIG Credit Ltd v Ng Chin Hung & Anor [2018] 1 HKC 364, at [37]- [40].

(4) In the event that the learned Judge did not err in law and in fact in holding that the Plaintiff could be said to be ordinarily resident in Hong Kong, she erred in law in holding that by reason of such ground per se, the security for costs application of the Defendant should be dismissed. The learned Judge erred in failing to consider the legal question of whether the Court has jurisdiction to order security for costs against a person ordinarily resident in Hong Kong if she is also ordinarily resident out of the jurisdiction: Tjong Very Sumito v Chan Sing En & Ors [2011] SGCA 40 at [50]. If the Court has jurisdiction in such circumstances, the learned Judge further erred in failing to exercise her discretion in deciding whether to grant an order for security for costs against the Plaintiff.

15.The relevant legal principles are well established.

16.To succeed in an application for leave to appeal, the applicant needs to show that the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

High Court Ordinance, Cap 4 section 14AA(4); SMSE v KL [2009] 4 HKLRD 125 at [17] per Le Pichon JA

17.Regarding an application to extend time to appeal, the court in the exercise of its discretion, will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.

Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [9] per Lam VP

18.It is well established that the scope for the Court of Appeal to intervene a judge’s exercise of discretion is limited. The appeal court must defer to the judge’s exercise of discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The appeal court can only interfere where: (1) the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) the judge has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) his decision is plainly wrong.

Re Owen KC [2022] 5 HKLRD 726 at [18].

19.First, we agree with the Judge’s ruling that the delay of the 1^st Defendant in seeking an extension of time for leave to appeal the Decision was substantial and inexcusable.

20.Second, in our view, the intended appeal has no merits. This is primarily because Grounds 1 to 4 fail to engage the principal reason why the Judge dismissed the Security for Costs Summons ie having granted summary judgment to the Plaintiff which, as of now, has not been set aside and hence the entire Action has been disposed of.

21.The purpose of ordering security for costs against a plaintiff ordinarily resident outside the jurisdiction is to ensure that a successful defendant will have a fund available within the jurisdiction of this court against which the defendant can enforce a costs order in his/her favour: Porzelack KC v Porzelack (UK) Ltd [1987] 1 WLR 420 at 422H per Sir Browne-Wilkinson V-C (quoted in Akai Holdings Ltd v Ernst & Young (2009) 12 HKCFAR 376 at [14]).

22.The 1^st Defendant is the unsuccessful defendant in this Action which has come to an end, subject to appeal. The 1^st Defendant has lodged a notice of appeal against the Judge’s decision to grant summary judgment (as well as the Judge’s Order dismissing her security for costs application) on 23 December 2024.[2] In the 1^st Defendant’s Statement, her counsel submits that the appeal against the summary judgment is on foot in CACV 561/2024. Hence, leave should be granted for the appeal against the Order which is relevant to be considered in conjunction with the appeal against the summary judgment: Wang Yuexian v Xinyang Maojian Group Ltd (formerly known as China Zenith Chemical Group Ltd) [2024] HKCA 660 at [32] – [35].

23.This court does not agree that Wang Yuexian v Xinyang Maojian Group Ltd (formerly known as China Zenith Chemical Group Ltd) assists the 1^st Defendant at all. What was said by the Court of Appeal at [32] – [35] were these.

“32. The Defendant argues that by reason of the Substantive Appeal, which was brought as of right, this appeal should be allowed to proceed so that it can be considered in conjunction with the Substantive Appeal. The Defendant relies on Hong Kong Finance Co Ltd v Wah Fung Forest Resources Ltd [2023] HKCFI 2248, [3]-[6].

33. We agree with the Judge that Hong Kong Finance Co Ltd did not establish any general principle to the effect that if there is an appeal on foot brought as of right, then leave should be given for another appeal which may be relevant to be considered in conjunction with the one on foot …

34. Ultimately, it is matter of judicial discretion whether this appeal should be allowed to proceed in light of the Substantive Appeal. Given our view, which agrees with that of the Judge, that this appeal lacks merit, there is no sufficient reason to disturb the exercise of discretion by the Judge.

35. In the premises, there is no sufficient reason to grant leave to appeal under the second limb.” (emphasis added)

24.Nothing in the Application Bundle or the 1^st Defendant’s Statement shows what had happened to CACV 561/2024. According to the Judiciary’s record, no date has been fixed for the hearing of CACV 561/2024, notwithstanding the 1^st Defendant’s application to fix a date for the hearing of the appeal on 12 March 2025. Importantly, none of Grounds 1 to 4 touch upon the summary judgment against the 1^st Defendant. Hence, as of now, there is no prospect of the Plaintiff having to pay costs to the 1^st Defendant and she has no legitimate need for security for costs.

25.For these reasons, we refuse to grant an order in terms of the Summons.

DISPOSITION AND COSTS ORDER NISI

26.We are not prepared to grant an extension of time for appeal to the 1^st Defendant to apply for leave to appeal the Order. We also do not see any other reason in the interests of justice why the appeal should be heard - this limb simply does not feature in the Draft NOA. The Summons is hereby dismissed.

27.Costs should follow the event. We therefore order on a nisi basis that the 1^st Defendant should pay the costs of this application to the Plaintiff, to be summarily assessed by this court.

28.In her Statement of Costs, the Plaintiff seeks HK$91,335 as her costs. We find this figure to be reasonable and assess her costs at HK$91,335.

29.As this application is totally without merits, we further make an order under RHC Order 59 rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

Mr Raymond Lau, instructed by M/s Foo, Leung & Yeung, for the Plaintiff

Mr Axis Yu, instructed by M/s Iu, Lai & Li, for the 1^st Defendant