Cheung Chui Sou Ying v. Cheung Yuk Luen and Others

HCA005238/1980

Striking out Statement of Claim as disclosing no cause of action and as being vexatious, embarrassing and un intelligible

Application of Tsing law. 

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Coram: Barker, J.

Date of Judgment: 24th June, 1981.

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JUDGMENT

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1. These are four motions made respectively on behalf of the 2nd and 7th Defendants, on behalf of the 6th Defendant, on behalf of the 30th Defendant and on behalf of the 31st - 40th Defendants inclusive. By all four motions an order is sought that the Statement of Claim be struck out under Order 18 rule 19 of the Rules of the Supreme Court. The first three motions ask in the alternative for a large number of stated paragraphs to be struck out as tending to prejudice embarrass or delay the fair trial of the action. The fourth motion contains no such prayer, but does ask in the alternative for an Order pursuant to Order 15 rule 5(1) of the aforesaid Rules that the 31st - 40th Defendants be dismissed from the action on the grounds of misjoinder.

2. Order 18 rule 19 provides:

"(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action or anything in any pleading or in the indorsement, on the ground that

and may order the action to be stayed or dismissed or judgment to be entered accordingly as the case may be."

3. It is only in plain and obvious cases that the power to strike out should be used.

4. In Dyson v. Attorney General⁽¹⁾ Fletcher Moulton L.J. said at page 418:

"Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless. But from this to the summary dismissal of actions because the judge in chambers does not think they will be successful in the end lies a wide region, and the Courts have properly considered that this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in cases where the action is an abuse of legal procedure. They have laid down again and again that this process is not intended to take the place of the old demurrer ..... To my mind it is evident that our judicial system would never permit a Plaintiff to be 'driven from the judgment seat' in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad."

5. These are strong words, and I bear them in mind in arriving at my decision. But plain is not the same as simple and obvious is not the same as short. Moreover if a careful reading of the Statement of Claim does not indicate clearly what the nature of the Claim is, the a Court can, and probably will order it to be struck out as being embarrassing and vexatious, unless it be capable of amendment. A defendant is entitled to an intelligible Statement of Claim (See e.g. Cashin v. Cradock [1876] 3 Ch. 376, Harbord v. Monk [1878] 38 L.T. 411) if for no other reason that he ought to be able to know what to admit, what to deny, and what, if anything, to confess and avoid. (See e.g. Davy v. Garrett [1878] 7 Ch. 473 and Philipps v. Philipps [1878] 4 Q.B.D. 127 at p.131 and 136). Or if on a careful reading of the Statement of Claim however complicated, it can be seen that there is no cause of action, a Court can, and probably will, order it to be struck out.

6. It is also pertinent at the outset to cite Order 18 rule 7(1) of the Rules of the Supreme Court which reads, so far as is relevant:

"Every pleading must contain, and contain only a statement in summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits."

7. In Millington v. Loring⁽²⁾ Lord Selborne said at page 194:

"If those words 'material facts' are to be confined to matters which are material to the cause of action, then no doubt the facts in this paragraph were not properly pleaded. But in my opinion those words are not so confined, and must be taken to include any facts which the party pleading is entitled to prove at the trial."

But in my judgment those words of the Lord Chancellor are too wide. Taken literally they would enable a Plaintiff to circumvent the Rule's requirement of brevity, and would in effect give him the right to plead the whole of his proof in the Statement of Claim. This cannot, I respectfully think, be right and some limitations must therefore be placed on their ambit.

8. It is to the Statement of Claim I now turn. Surprisingly the Statement of Claim was endorsed on the Writ. I say, surprisingly, because it is an awesome document. It is 95 pages long and annexed thereto and forming part thereof are nine charts. There are no less than 41 Defendants, some of whom are infants, some of whom are limited companies, and against many of whom no relief is claimed in the prayer. Paragraph 1 thereof, which itself is five pages long, is in effect an interpretation section, giving the meanings to be attached to various expressions as they occur in the Statement of Claim. There are 23 prayers, covering eight pages. It is a most complicated document.

9. The case is about what is alleged to have been a Chinese undivided family. "The Cheung family" is defined in paragraph 1 as being "Cheung Chuk Shan, Kwok Kang, Number 1's fang, Number 2's fang, Number 3's fang and Number 4's fang or such of them as were or are in being at the time which the expression is used." It is apparent from the Statement of Claim that Cheung Chuk Shan is alleged to have been the head of the Chinese undivided family. It therefore follows that the definition comprehends a period of at least 66 years, i.e. from 1914 when Cheung Chuk Shan's and Kwok Kang's first child (Number 1) was born to the date of the Statement of Claim in 1980. People joined the family by marriage left it by marriage, were born and died. Mr. Harman Q.C., who appeared for the 2nd and 7th Defendants, described it as a Protean body, constantly shifting, and complained that where there occurs, as there does frequently, an allegation that the Cheung family did something, it was impossible to plead to, because the Defendants could not know what persons actually did what is alleged, e.g. were infants included. He therefore contended that it was oppressive, and impossible to plead to, and all reference to it in the Statement of Claim should be struck out, and that if this were done, such a tatterdemalion structure would be left that the whole Statement of Claim should be struck out. I shall have to return to this submission later.

10. Paragraphs 2.1 to 2.7 set out the capacities in which the Plaintiff sues and some but not all of the Defendants are sued. The Plaintiff sues in four capacities and to take an example the Second is sued in five capacities. Thus there are twenty different commutations of actions as between the Plaintiff and the Second Defendant.

11. From paragraphs 3 and 4 it is clear that Cheung Chuk Shan lived was domiciled, married and died in China in the province of Kwantung, all his children being born there. The Plaintiff married Cheung Yuk Ki (Number 2) there on 29th May 1946, at which date it is to be noted that the 2nd Defendant was still an infant, at least according to the law of Hong Kong.

12. Then one comes to paragraphs 10, 11 and 12 of the Statement of Claim, against which bitter attack has been made. I shall set them out in full, omitting the Chinese characters which are given therein.

13. The first attack against these paragraphs is that they contain matters of foreign law, that foreign law is a question of fact, which must be pleaded with proper particularity; that in the absence of such particulars the Hong Kong law, (the relevant part of it being in the circumstance English common law and equity) applies, and that these paragraphs then disclose no cause of action known to English common law and equity.

14. What are proper particulars of a foreign law can be seen by the order made by Ungoed-Thomas J. in the case of Ascherberg, Hopwood & Crew Ltd. v. Casa Musicale Sonzogno di Pietro Ostali, Societa in Nome Collettivo⁽³⁾. That was a case concerning the ownership of the English copyright in two operas "Cavalleria Rusticana" and "L'Amico Fritz" both by Pietro Mascagni. There the Defendants sought to adduce evidence of Italian law even though their Defences did not allege the relevance of Italian law or set out its provisions.

15. The judge ordered the Defendants to serve the amended Defences "raising all points of Italian law upon which they seek to rely, whether to explain the meanings of terms used in such of the agreements in the agreed bundle as were in the Italian language in the original or to state the effect upon Italian law of such agreements, such pleading to include full particulars of the statements and propositions of Italian law including rules of construction relied on, with reference in each case to the Italian legal authorities relied on in support of it, and of any agreement and any passage or terms therein to which they are directed."

16. That decision was upheld (save for an immaterial variation) on appeal⁽⁴⁾.

17. It is obvious in the light of that decision that if foreign law is relied on in the present case it has not been properly pleaded.

18. Mr. Wilmers Q.C. who appeared on behalf of the Plaintiff contended that he is not and does not have to rely on foreign law. He argues that Ts'ing law as it applied to the Colony in 1843 and has developed since is part of the law of Hong Kong and recognised by the Courts in Hong Kong to be such; see Ho Tsz Tsun v. Ho Au Shi and others⁽⁵⁾ in which Havilland De Sausmarez President said at p.72:

"We have in the Colony two systems of distribution, one under the Statute [sc of Distributions] which has been recognised by the Courts and the other the Chinese law of inheritance or succession which according to the evidence is and always has been observed by Chinese residents."

He points further to section 3 of the Supreme Court Ordinance 1873, which repealed the Supreme Court Ordinance of 1844 which read:

"Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April 1843 shall be in force in the Colony except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants and except so far as they have been modified by laws passed by the said legislation."

and to the Application of English Law Ordinance 1946 Cap. 88, the Ordinance now in force, section 3(1) of which reads:

19. Therefore the undivided family, which is, so it is argued, well known to Tsing law in Hong Kong, does not have to be pleaded with more particularity than has already been done. Mr. Wilmers adds that at least the point is arguable, which is as far as he has to go on a motion to strike out.

20. Mr. Charles Ching Q.C. who appeared for the 30th Defendant hotly disputes Mr. Wilmers' assertion in this way. He points first to the case of In the Goods of Chan Tse Shi⁽⁶⁾ Gould J. said at page 14:

"The law in force in China until the promulgation of the Chinese Civil Code in 1930 was the Ta Tsing Lu Li (hereinafter called the Tsing law)".

There is, says Mr. Ching, no evidence as to the effect of the Code (if any) on the Tsing law in China, nor as to whether Tsing law in China is the same as or has developed differently from the development of Tsing law in Hong Kong.

21. Mr. Ching raises a more fundamental issue, however. He points to Captain Elliot's Proclamation of the 2nd February 1841, the fifth paragraph of which reads:

"and I do hereby declare and proclaim that, pending Her Majesty's further pleasure, the natives of the island of Hong Kong and all natives of China thereto resorting, shall be governed according to the laws and customs of China, every description of torture excepted"

and the penultimate paragraph of which reads:

"And I do further declare and proclaim that, pending Her Majesty's further pleasure, all British subjects and foreigners residing in or resorting to, the island of Hong Kong, shall enjoy full security and protection, according to the principles and practice of British law, so long as they shall continue to conform to the authority of Her Majesty's government in and over the island of Hong Kong, hereby duly constituted and proclaimed."

22. So, argues Mr. Ching, Tsing law in Hong Kong applies only to natives of Hong Kong and all Chinese residing thereto, and the relevant time to decide this is the time of the relevant transactions - i.e. of the founding of the Chinese undivided family, quare 1914? and of the Plaintiff's joining it, May 1946. At that time none of the parties involved were natives of Hong Kong nor Chinese resorting thereto. They lived were domiciled in and worked in Kwantung. Whatever they did in Kwantung, he argues, was not governed by Hong Kong, and therefore it is a matter of foreign law, and is inadequately pleaded. The Defendants do not know for instance whether the system alleged in paragraphs 10 and 11 has been imposed by law, or merely adopted by agreement, quite apart from the matters ordered by Ungoed Thomas J. to be particularised by the Defendants in the Ascherberg case (op. cit.). It follows, that in the absence of such proper pleading, the law to be applied is that of English common law and equity.

23. The English common law and equity know nothing of the undivided family system. Parents cannot bind infants in being, or to be born, under English law, in the way alleged. It is not the betrothal the amounts to consideration in a marriage contract. The marriage itself is the consideration. Furthermore it is argued, and I so hold, that under English law and equity the system would necessarily offend against the Rule against Perpetuities, since under the system nothing vested in interest at all. It is therefore in my judgment contrary to public policy.

24. By way of rejoinder (which I allowed) Mr. Wilmers argued that the effect of the Application of English Law Ordinance was to reverse which had previously been the position and to make Tsing law the common law of Hong Kong, there being superimposed thereon the rules of English common law and equity and any English statute made applicable to Hong Kong and any Ordinance. This argument in my judgment is plainly wrong. The short title reads "To declare the extent to which English law is in force in the Colony". It follows that when section 3(1) refers to The common law and the rules of equity, it means the English common law and the English rules of equity. The matter is put beyond argument in my judgment by section 3(2) which provides:

"The common law and the rules of equity shall be in force in Hong Kong as provided in sub-section (1) notwithstanding any amendment thereof as part of the law of England made at any time by an Order in Council or Act which does not apply to Hong Kong."

It would make a nonsense of this section if for "common law" one were to substitute Tsing law. Moreover, I know of no case - none was cited to me - to suggest that Tsing law had or has rules of equity.

25. Mr. Wilmers further argued that Capt. Elliot's proclamations (he made two but I have referred to part of only one) did not and do not have the force of law. But they have clearly been treated as such by the Courts in Hong Kong. Thus in the case of Ho Tsz Tsun (op. cit.) Rees Davies C.J. at pages 78 and 79 quoted and relied upon the Chief Justice said at page 82:

"We have express sanction for the recognition of the dual system of law both in the proclamations and in Ordinance 1 of 1857".

26. In my judgment there is still a dual system of the law in Hong Kong, the common law being the English common law together with the English rules of equity, and the Tsing law which applies to natives of Hong Kong and all natives of China resorting thereto. I further hold that the relevant time for deciding whether the relevant persons are subject to Tsing law is the time when the particular transaction took place - in the present case the time of the inception of the undivided family and the time of the Plaintiff's joining it. At those times no relevant person, including the Plaintiff, were natives of Hong Kong or natives of China resorting thereto. Were it to be otherwise, two Chinese living domiciled and married in England who regulated their affairs according to English law but who later came to live in Hong Kong would find that they were subject to Tsing law. It follows that if Tsing law is to be relied on by the Plaintiff, it must be pleaded with proper particularity; it has not. It therefore follows that the relevant law to be applied, in the absence of such a proper pleading, is English law. I regard this, despite its complexity, as a plain and obvious case. The consequence is that paragraphs 10,11 and 12 of the Statement of Claim must be struck out.

27. Further consequences flow from this. The whole of paragraphs 13 and 14 and paragraphs 15.1 to 15.7, which purport to detail the history and growth of the Cheung family are, at best, evidence and therefore in contravention of Order 18 rule 7(1) and at worst irrelevant. Therefore those paragraphs and subparagraphs must be struck out.

28. Paragraph 15.8 relates back to the system, and is therefore objectionable. The trust alleged is also void for perpetuity. It is also bad because the subject matter of the alleged trust lacked certainty and the persons intended to have the benefit were not certain. For these reasons, this sub-paragraph must be struck out.

29. It was argued by Mr. Wilmers that one of his main submissions on paragraphs 12 to 17 was that the Cheung family acquired rights and obligations not by virtue of a direct operation of the Chinese system of law but by virtue of the broader operation of the Chinese system of law but by virtue of the broader English system of implied or constructive trusts. But this is not what paragraph 15.8 pleads and no one, in my judgment, reading it would so understand it. The relevant property is alleged to have been held by those members of the Cheung family who were the legal owners thereof upon trust for the trust family "according to the system referred to in paragraph 10 hereof", i.e. the Chinese system.

30. I turn then to paragraph 15.9. This alleges that alternatively the said property and assets were held on trust by those members of the Cheung family who were the legal owners thereof on trust for Numbers 1, 2, 3 and 4 or alternatively for Numbers 1, 2, 3 and 4, 1S SL the Plaintiff SC and Kwok Kang as tenants in common in equal shares. (The various pseudonyms are defined in paragraph 1 of the Statement of Claim).

31. In Davy v. Garrett (op. cit.) Thesiger L.J. said at page 489:

"Now in any properly constituted system of pleading, if alternative cases are alleged, the facts ought not to be mixed up, leaving the Defendants to pick out the facts applicable to each case; but the facts ought to be distinctly stated, so as to shew on what facts each alternative of the relief sought is founded."

This of course does not mean that where facts are alleged from which a Court can draw the inference of two inconsistent causes of action the same facts have to be alleged twice in respect of each cause of action.

32. The matters relied upon are set out in paragraph 15.10. But that paragraph alleges no new facts whatsoever, but merely throws the Court back to the circumstances set out in paragraphs 13 and 14, paragraphs which were pleaded to show that the relevant property was held for the Cheung family members according to the system set out in paragraphs 10 and 11. There is nothing, whatsoever, in paragraphs 13 and 14 from which a Court could infer a trust in favour of four or nine members of the family. It is moreover to be noted that no relief is claimed in the prayer in respect of the alleged trust for nine. In my judgment paragraphs 15.9 and 15.10 disclose no cause of action and must be struck out.

33. Paragraphs 15.11 alleges that at the time of Number 2's death, i.e. June 1953, having regard to the manner in which they were being carried on by Numbers 1, 2, 3 and 4 the businesses in the names of Numbers 1, 2, 3 and 4 or any of them constituted a partnership. No particulars are given of the manner in which the businesses were being carried on nor which businesses are referred to. There are no material facts pleaded in the preceding paragraphs from which a Court could infer a partnership, and this paragraph is subject to the same vice as paragraphs 15.9 and 15.10 and must accordingly be struck out.

34. I can deal with paragraphs 16, 17 and 18.1 to 18.5 quite shortly. These purport to deal with the history of the Cheung family from 14th June 1953 until 1962 and to show that the undivided family continued according to the system. Having regard to my judgment on paragraphs 10, 11 and 12, I consider that paragraphs 16, 17 and 18.1 to 18.5 are objectionable in that they are at best evidence and not material facts and at worst irrelevant. These paragraphs must also be struck out, as violating Order 18 rule 7(1).

35. Paragraphs 18.6 speaks of an agreement at a "family meeting" (and in parenthesis I point out that it is not clear what "family" means here, since it cannot mean "the Cheung family" as defined in paragraph 1 as only eight persons were present) at which it was agreed that a tong should be incorporated as a limited company in order to take over the various investments etc. of the Cheung family and the management of their household all in accordance with the system of Chinese traditional law and custom described in paragraph 11. A tong is a term well known to the Hong Kong Courts. In the case of Li Chok Hung v. Li Pui Chi⁽⁷⁾ the Acting Chief Justice said at p.123:

36. And in the case of The Tung Sang Wing Firm v. Chow Chun Kit⁽⁸⁾ Pigott C.J. said:

37. That being the position, I pose the question "How can one incorporate a tong? The Statement of Claim gives no answer. Moreover, paragraph 18.6 gives no particulars of the authority by virtue of which the eight persons mentioned therein agreed on behalf of the Cheung family as a whole, and of course by English law an infant cannot consent to be bound by such an agreement (I add by way of parenthesis that there is no Hong Kong case reported wherein it is decided that an infant can so consent according to Tsing law as applied in Hong Kong. There are cases, e.g. Ho Cheng Shi v. Ho Sau Lam⁽⁹⁾ which show that an infant can elect a guardian, but this is also the position in England - see Tristram and Coote's Probate Practice page 269, provided the child has attained the age of 16 years and Non Contentious Probate Rules 23(2)(B) and 31(4)).

38. Paragraph 18.8 speaks of the formation of the relevant company CCSE (the 41st Defendant) the intention of the subscribers being expressed to be to secure the perpetual maintenance of the Cheung family as an undivided family and further that any assets not applied in maintaining the Cheung family must be distributed to charity. (I pause to say that because of this mention of charity I invited the Attorney General to intervene if he wished but Mr. Kaplan who appeared briefly before me on his behalf stated that having considered the matter he did not wish to do so). In the light of my decision as to paragraphs 10 and 11, it follows that paragraph 18.8 is objectionable, and also because it offends against the Rule against Perpetuities. It is also unintelligible in that any reference to distribution to charity is wholly contrary to the system laid out in paragraphs 10 and 11. For these reasons and for those set out in the foregoing paragraphs it follows that paragraphs 18.6, 18.7 and 18.8, and 18.9 18.10 must be struck out.

39. I turn to paragraph 18.11 which refers to express declarations of trust made by seven members of the family on different dates in which they stated that all the assets which were then or might thereafter be standing in their names were or would be held by them in trust for the Cheung family or alternatively by CCSE or alternatively as an intended subsidiary of CCSE. This paragraph is objectionable for a number of reasons. First, the first alternative is void for perpetuity. Secondly, no relief is sought in the prayer for the third alternative. Thirdly, the trusts alleged are void for uncertainty. As Mr. Morritt submitted what is alleged are three mutually inconsistent trusts without any power to declare, and no Court would enforce them since it would not know which to declare. Fourthly, declarations to the effect that a person holds future property on trust are inoperative unless for value, and no value is pleaded, and despite Mr. Wilmers' strenuous arguments to the contrary in my judgment on the facts as pleaded none can be inferred. In my judgment paragraph 18.11 must be struck out.

40. The remainder of paragraph 18.12 is at best evidence, offends against Order 18 rule 17 and must be struck out.

41. Because of my decision on paragraphs 11, 15 and 18, it follows that in my opinion there is no basis for paragraph 19.1. The remainder of paragraph 19 is in my judgment merely evidence and in pleaded in breach of Order 18 rule 17 and must be struck out.

42. I turn then to paragraph 20. It alleges:

"Number 4 and the personal representatives of Numbers 1 and 3 or the nominees or companies controlled by him or them hold shares and other assets referred to in sub-paragraph 19.1 hereof in trust for Number 4, 1S, SL, the Plaintiff, 3C and SC and the estates of Numbers 1, 2, 3 and Kwok Kang in equal shares (subject to equitable accounting) upon the footing that Numbers 1, 3 and 4 agreed and were permitted by the rest of the Cheung family in reliance upon such agreement to acquire and/or retain the said shares and other assets for the joint benefit of themselves and the rest of the Cheung family and that, even if (which is denied) the said shares and other assets are not held upon one or other of the trusts referred to in sub-paragraph 19.1 hereof, nevertheless it would not be equitable for them to retain the whole benefit of the said shares and other assets for themselves to the exclusion of the rest of the Cheung family. The Plaintiff will say that the agreement and reliance referred to in this paragraph are to be inferred from the facts and matters pleaded in paragraphs 12 to 19 hereof inclusive."

43. I have quoted this paragraph at length because it demonstrates the convolution of the pleading. Who are the nominees referred to? There is alleged to be a trust in favour of ten persons, as distinct from the nine persons alleged in the second alternative in paragraph 15.9. Search paragraphs 12 to 19, covering 48 pages of the Statement of Claim, as I may, I can find no factual material on which such a trust can be based. What is meant by "were permitted by the rest of the Cheung family?" When and how was this permission given? Presumably infants are included but they cannot give permission. Then there is a reference to what Snell called "innominate equity" at page 568 (cf. Holiday Inns of America Inc. v. Broadhead [1969] Dec. 19 unrep. Megarry J.). But in order to find this innominate equity one has to search through paragraphs 12 to 19 and pick out such facts as one can to see if such an equity can be established. This is exactly what Davy v. Garrett (op. cit.) said was impermissible, and I agree. In my judgment this paragraph discloses no cause of action, alternatively is vexatious, embarrassing and unintelligible and must be struck out.

44. The foregoing are all the paragraphs alleging the various different causes of action, and in my judgment they fail, and plainly and obviously fail, to establish any cause of action. That being the case, the rest of the Statement of Claim must also be struck out.

45. If I be wrong in the foregoing, I turn then to consider the second plank in the Defendants' motions, namely that the Statement of Claim is vexatious, embarrassing (indeed impossible to plead to) and unintelligible and ought to be struck out on that ground also or in the alterantive.

46. I referred to the beginning of my judgment to the definition of the Cheung family set out in paragraph 1 of the Statement of Claim, covering a period of 66 years. How can the Defendants plead to its use in the Statement of Claim when at any material time they cannot know which persons of what age are being referred to? The answer is that they cannot, and in any event I would strike out all reference to the Cheung family in the Statement of Claim, which would leave it without any intelligible content.

47. "Family company" is defined as a company whose shares (or a controlling proportion thereof) are or were at the material time part of the family property of the Cheung family. But what is meant by "a controlling proportion thereof" - a majority of the shares, a shareholding so large as to give de facto control? It is an embarrassing definition and should be struck out.

48. I turn next to the capacities section. As I have already said there are twenty permutations and combinations as between the Plaintiff and the 2nd Defendant, and I remark that there are sixteen as between the Plaintiff and the 6th Defendant. How can the Defendants be expected to deal with them. The 30th Defendant is not told in what capacity she is sued. Mr. Wilmers said that, in the absence of any special reference, it should be assumed that a Defendant is sued in his personal capacity. But why? He also said that he would amend to allege that the 6th Defendant was sued as executor of Number 3's will, but this had not yet been done, and I must for the purposes of these motions take the Statement of Claim as it stands.

49. My attention was drawn during the course of the argument to numerous paragraphs, which it was said were embarrassing to plead to, either because they were mere evidence, or because they covered an enormous number of years, or because they were virtually unintelligible. I drew attention to a few, without particularising them; the whole of paragraphs 13 and 14, most of paragraphs 15, 16.2, 16.8 (I add what is meant by the 'family business' in the singular) 17.5, 17.8, 19.1 and most of all paragraph 20. In my judgment these objections are well founded.

50. But that is not the end of the matter, for there are the charts. These purport to show the respective shareholdings and directors at various times, but in my judgment they make confusion worse confounded and are impossible to plead to. Companies appear therein and then disappear for no apparent reason. Transfers of shares seem to take place without explanation. Companies whose names do not appear on the Statement of Claim or in the prayer appear in the charts, and so on. I give a few examples.

(a) In Chart G Goldwater is alleged to hold 41% or 52.75% of Wheelock Marden (not a defendant). Which is right? And is Wheelock Marden alleged to be a family company within the definition section?

(b) In Chart G Crozet 1971 is alleged to be a wholly owned subsidiary of Capital Land 1957 (less one share held by the 2nd Defendant). In Chart H it is alleged to be a wholly owned subsidiary of Wheelock (less one share held by Granville Trust - and what is this?) How did the change come about? No one knows.

(c) Chart J Clarkson, ABM own 25% of its shares. But who is ABM.

51. On the same chart 50% of Amaril Estates are owned by Fortress Hill Development, but what is that?

52. The examples were multiplied in front of me.

53. The matter becomes even more unintelligible when one finds that five companies mentioned in the prayer for relief, namely Mee Cheong Investment Co. Ltd. (Prayer 1) Yan Cheong Investment Co. Ltd. (Prayer 7) Walker Realty Limited, Tees Limited and Cranmese Land Co. Ltd. (all in Prayer 10) appear neither in the body of the Statement of Claim nor in the Charts.

54. In my judgment the whole of the Statement of Claim is vexatious and embarrassing, and in many respect unintelligible and for those reasons too should be struck out.

55. In view of my foregoing conclusions it is not strictly necessary for me to consider the position of the individual Defendants. Were I to be wrong, there would be no case for striking out as against the 2nd Defendant. But I see no reason why the 6th Defendant has been brought in. It is said she had to be joined as executor of her late husband's estate. But the 20th Defendant has been appointed by the Court to act on behalf of that estate (probate not yet having been granted to the 6th Defendant) and therefore by virtue of Order 15 rule 6A(7) any order that this Court may make against the estate will bind the executor. The Plaintiff cannot found a case against the 6th Defendant on the grounds that she was a member of the undivided family, because it is not admitted that she was ever lawfully married to Number 3. She is sued as trustee or manager, but no breach of trust is alleged against her and the 2nd Defendant is alleged to have been the sole manager of the relevant estate. Nor would I be prepared to hold that Order 85 compelled her joinder solely as executor (not yet granted probate) when the estate has been joined a person appointed to represent it and the provision of Order 15 rule 6A(7) therefore apply.

56. I turn to the 7th Defendant. The only remedy sought against her is in Prayer 21 for an account. There is no plea that she was acting as the Plaintiff's agent, nor that she holds monies as trustee in any trusts in which the Plaintiff is interest, nor that she is in any way in breach of trust. I can see no basis for the claiming of an account against her, and I would not allow her to be kept in the action simply because she is a potential beneficiary, if she did not want to be.

57. Next the 30th Defendant. She is the Plaintiff's sister. She is not and is not alleged to have been a member of the undivided family. No breach of trust is alleged against her even though she was and is according to the charts a director of a number of companies. She has held shares, but there is no allegation that she has improperly disposed of them. She is now alleged to hold substantial nominee shareholdings in Wheelock Marden (see Chart J) but there is in the first place no definition in the Statement of Claim of what is meant by nominee, no statement on Chart J as to whose nominee she is, and no allegation that there is anything improper in her conduct. Therefore in any event I would strike her name and all reference to her from the action.

58. I turn finally to the 31st - 40th Defendants. It came as a considerable surprise to Mr. Stubbs who represents them to learn from Mr. Wilmers' lips that no breach of trust is alleged against them. Mr. Wilmers says that Order 85 of the Rules of the Supreme Court compels him to join them. I do not agree. The order may compel the joinder of all the trustees of a trust, but where you have a number of separate trusts, with different trustees, Order 85 does not compel them all to be joined in one action even though the terms of the separate trusts are all the same. Mr. Wilmers says that there is no conflict between the 2nd Defendant and the corporate Defendants. Again, I do not agree. It is possible, for example, that questions of misfeasance may arise. Moreover, if she has a cause of action, the Plaintiff can get all the relief she requires from the estate of Cheung Yuk Luen and the 2nd Defendant. Were the corporate Defendants to remain in the action, the trial would be greatly prolonged, and made more expensive by the considerable amount of discovery and other interlocutory work which would inevitably be involved. Therefore I consider that, in any event, the joinder of the corporate Defendants was improper and I would strike out all reference to them in the pleading.

59. What order should I make? I have a discretion, to strike out all Statement of Claim and dismiss the action, or merely to strike out the Statement of Claim and give leave to the Plaintiff to amend on terms. It is normal to take the latter course. But in this case, if my judgment be right, the amendments would have to be so far reaching and so radical as to amount to a totally new Statement of Claim, and thereafter no doubt to a fresh application to strike out. In all the circumstances I have come to the conclusion that in this exceptional case, and exceptional it undoubtedly is, the correct course is to strike out the Statement of Claim and the Writ, since the Writ must inevitably fall with the Statement of Claim, which acted as its endorsement, and to dismiss the action, and this I do.

60. Not all the Defendants joined in these motions but the Court has an inherent jurisdiction in this matter, and it would be wrong, having dismissed the action, for the reasons I have given, as against some Defendants to leave it extant against others. I accordingly dismiss the action against all the Defendants.

61. I cannot pass from this case without expressing my gratitude to all counsel involved not only for the enormous amount of help they have given to me during the course of it, but also my admiration for the industry they have expended on it. It is out of no disrespect to them that I have dealt with only some of the arguments which they deployed before. On the views I have formed it was unnecessary for me to do more. Finally I would like to compliment the solicitors involved on the way in which an immense amount of documentary material has been presented to me in a manageable form. To all of you I am most grateful.

Representation:

John Wilmers Q.C., Henry Litton Q.C., John McDonnell & Anthony Rogers (Lo & Lo) for Plaintiff.

Jeremiah Harman Q.C., Leslie Wright, A. Sakharani & C.V. Lee (Patrick Poon & Co.) for D2 & D7

Andrew Morritt Q.C. & Ronny Wong (T.S. Tong & Co.) for D6

Charles Ching Q.C. & Herman Poon (T.S. Tong & Co.) for D30

William Stubbs Q.C. & Winston Poon (J.S.M.) for D31-D40

(1) [1911] 1 KB 410

(2) [1880] 6 Q.B.D. 190

(3) [1971] 1 W.L.R. 173 at page 180

(4) [1971] 1 W.L.R. 1128

(5) [1915] H.K.L.R. 69

(6) [1954] H.K.L.R. 9

(7) [1910] H.K.L.R. 121

(8) [1910] H.K.L.R. 238

(9) [1920] H.K.L.R. 35