Ho Tak Ming v. Chiu Ka Tsin and Others

cacv 141/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 141 of 2004

(on appeal from HCA NO. 3130 of 2001)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Chung J in Court

Date of Hearing: 19 April 2005

Date of Judgment: 19 April 2005

Date of Handing Down Reasons for Judgment: 27 April 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA:

2.This is an appeal by the 2^nd to 8^th defendants (“the appellants”) from the order dated 16 December 2003 made by Lam J.  The proceedings below were commenced by the administrator of the estate of Chiu Tso To (“the deceased”) in respect of certain publicly listed shares which the administrator claimed belonged to the deceased (“the shares”). 

3.The 1^st to 8^th defendants are the children of the deceased from his marriage to Madam Yu who died in 1959.  In 1961, the deceased married Madam Tse and had two sons by her.  By his last will, the deceased left his estate to Madam Tse and all his sons, namely, the 1^st to 5^th defendants and the two sons of Madam Tse, in equal shares.

4.After a trial lasting 7 days, the judge found in favour of the administrator.  In a full and comprehensive judgment, the judge recited at some length the evidence of the parties and the relevant issues.  The primary issue of fact to be determined was who had paid for the shares when they were acquired in 1952.  Some had been purchased in the name of the 1^st defendant and the rest in the name of the 6^th defendant.  It is unnecessary, for present purposes, to go into the detailed facts and the respective positions of the parties save to say that the defence was that the shares were purchased by Madam Yu with her own money and it was a gift from her to her children and, alternatively, if the shares had been paid for by the deceased, the defendants relied on the presumption of advancement.  The 6^th defendant was the only witness who gave evidence on behalf of the appellants at the trial.  The judge rejected her evidence and made findings of fact, giving full reasons for his conclusion that the shares belonged to the deceased. 

5.In an earlier action the administrator had successfully advanced similar claims but against the 1^st defendant only.  Although properly served, the 1^st defendant was absent from the proceedings below and has not appealed the judgment of Lam J.  The notice of appeal in this appeal was thus filed on behalf of the appellants only.  On 24 March 2005, the 5^th and 6^th defendants filed notices to act in person.  By order dated 13 April 2005, Messrs Ricky S.P. Ng & Co ceased to act as solicitors for the 2^nd, 3^rd, 4^th, 7^th and 8^th defendants.

6.At the appeal hearing, the 6^th defendant appeared in person and the other defendants on whose behalf the notice of appeal had also been filed (i.e. the 2^nd, 3^rd, 4^th, 5^th, 7^th and 8^th defendants) were absent.  At the conclusion of the hearing the appeal was dismissed.  An order for costs was made against the appellants in favour of the administrator.  Written reasons were to be handed down later which we now do.

7.The 6^th defendant could not articulate any reason for challenging the judgment.  She told the court that she wanted a clear explanation of why the shares did not belong to her.  Seemingly, she had neither read nor understood the judgment although she was aware of its existence: she admitted in answer to a question from the court that her former solicitors had explained the judgment to her, but that she did not understand why she had lost the case.  As the 6^th defendant could not understand the English language, the court granted a short adjournment so that the court interpreter could interpret the judgment to her.  When the hearing resumed, the 6^th defendant intimated that she had nothing to say about the judgment and acknowledged that her biggest problem was that the judge did not accept her evidence.  She was plainly not in a position to challenge the judgment.  The appeal was accordingly dismissed.

8.It is regrettable that the court’s time had to be wasted on a needless appeal.  Quite apart from the fact that it is not the function of this court to answer questions from litigants who are dissatisfied with the judgment below, the whole exercise was a sheer waste of time, not to mention public resources.  It also had the unfortunate effect of taking up a hearing day that could usefully have been devoted to other cases.  The pursuit of the appeal by the appellants in this case was little short of an abuse of process and is to be deprecated in the strongest terms. 

9.So far as costs are concerned, although the 6^th defendant was the only one among the appellants who appeared in court, it is appropriate that it should be borne by all the appellants since the notice of appeal had been filed on their behalf and their previous solicitors only ceased to act a few days before the appeal hearing.

Hon Chung J:

10.I agree with the reasons given by Le Pichon JA.

Mr Jeremy S K Chan, instructed by Messrs Ma Tang & Co., for the Plaintiff/Respondent

The 2^nd Defendant/Appellant, in person (absent)

The 3^rd Defendant/Appellant, in person (absent)

The 4^th Defendant/Appellant, in person (absent)

The 5^th Defendant/Appellant, in person (absent)

The 6^th Defendant/Appellant, in person (present)

The 7^th Defendant/Appellant, in person (absent)

The 8^th Defendant/Appellant, in person (absent)