Cheung Man Yu v. Lau Yuen Ching and Others

cacv 161/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 161 of 2005

(on appeal from HCMP NO. 2421 of 2000)

BETWEEN

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 16 December 2005

Date of Handing Down Judgment: 28 December 2005

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J U D G M E N T

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Hon Rogers VP:

1.This was an appeal from a decision of Deputy High Court Judge Saunders given on 22 April 2005.  The matter before the judge was an application for further and better particulars of the applicant’s statement of case.  The judge refused the application for particulars.  At the conclusion of the hearing of this appeal judgment was reserved which we now give. 

Background

2.The applicant commenced these proceedings by Originating Summons seeking relief in accordance with section 57A of the Trustee Ordinance, Cap. 29 and Order 120 of the Rules of the High Court.  The foundation of the claim by the applicant is that the 4^th respondent is a charitable organisation and that its funds have been wrongly transferred into the name of the 3^rd defendant and that the 1^st and 2^nd respondents are responsible for that.  Apart from claiming recovery of what are alleged to be trust assets from the other respondents, the applicant seeks an order for the better administration of the business and affairs of the 4^th respondent.

3.Originally an order for the action to continue as if begun by writ was applied for before the master.  Although the master declined that application, when the matter became came before another Deputy Judge for directions he made an order.  However his order that the action should continue as if begun by writ was set aside by the Court of Appeal because it appeared that the Deputy Judge had not been correctly informed as to the order made by the master.  When the matter came before Chu J she ordered that a statement of each party’s case should be filed.  As the judge below observed, however, a statement of case is different from pleadings.

4.The judge examined each of the requests for particulars with due care.  He considered that further particulars were not required.  He did so in the light of the fact that the parties had already provided sworn evidence.  As he correctly pointed out, when considering whether further and better particulars should be provided, the court had to look not only at the statement of case but at the affidavits as well.  In summary, the judge came to the conclusion that the applicant’s allegations were clear and the parties knew precisely what the allegation of the applicant was namely that the 4^th respondent was a charitable organisation.

5.As the judge correctly summarised, the respondents’ complaints amounted to interrogation on the basis that the applicant had not adduced sufficient evidence to establish her case; it was a complaint that went to the quality of the evidence.  Whether, the applicant may be in a difficulty because of the nature of the proceedings and the requirement that the evidence is filed before the hearing is irrelevant at this stage.  If material evidence has not been produced the applicant may be confined to the evidence that has been adduced, but that is a matter for trial.  What is of concern now is whether the applicant’s case is intelligible.  In my view, the judge was correct.  The matter should proceed without any further interlocutory steps - the effect of which would simply be to generate more paper in the case.

6.Although it was argued on this appeal that paragraphs 2(c) and 16 of the statement of case should be struck out, I see no cause to do so.  The existence of the allegations should not cause difficulty or embarrassment to the respondents.

7.I would therefore dismiss this appeal with an order nisi of costs in favour of the applicant.

Hon Le Pichon JA:

8.I agree.

Mr K M Chong, instructed by Messrs Ho & Partners, for the Applicant/Respondent

Mr Benjamin Chain, instructed by Messrs Louis K Y Pau & Co., for the 1^st to 3^rd Respondents/Appellants