Ng Jack Fong v. Ng Chan Ning
Read the full judgment text of DCCJ 2830/2005 on BabelCite. This District Court judgment.
1. On 2 nd February 2007, I granted inter alia an interlocutory injunction in favour of the Defendant to restrain the Plaintiff until judgment in the Defendant’s counterclaim or further order, whether by himself or his servant or agent or any of them or otherwise howsoever, from selling the premises known as Flat C, 14 th Floor, Win Field Garden, Nos.34-40 Shan Kwong Road, Hong Kong (“ Premises ”) or any part thereof to Lau Yiu Wah and Chan Po Shan (“ Purchaser ”) being the purchaser named in th
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DCCJ2830/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2830 OF 2005 ------------------------ BETWEEN
------------------------ Coram: H H Judge Marlene Ng in Chambers (Open to the Public) Date of Hearing: 7th March, 2007 Date of Handing Down Decision: 19th March, 2007 ------------------------ DECISION ------------------------ I. Introduction 1.On 2nd February 2007, I granted inter alia an interlocutory injunction in favour of the Defendant to restrain the Plaintiff until judgment in the Defendant’s counterclaim or further order, whether by himself or his servant or agent or any of them or otherwise howsoever, from selling the premises known as Flat C, 14th Floor, Win Field Garden, Nos.34-40 Shan Kwong Road, Hong Kong (“Premises”) or any part thereof to Lau Yiu Wah and Chan Po Shan (“Purchaser”) being the purchaser named in the provisional agreement for sale and purchase dated 6th January 2007 (“PASP”) or to any other party (“Injunction”). 2.On 7th February 2007, I handed down my Reasons for Decision (“Reasons”). For convenience, I adopt in this Decision the abbreviations in the Reasons. 3.Pursuant to my Order made on 2nd February 2007 (“Order”), the Plaintiff’s then solicitors filed the 3rd affidavit of Kwan To Pui on 8th February 2007 exhibiting their letters dated 2nd February 2007 to (a) Messrs Fong Yin Cheung & Co, solicitors for the Purchaser, (b) Ricacorp, the estate agent named in the PASP, and (c) DBS, the mortgagee bank of the Premises, informing them of my Order. 4.On 2nd March 2007, the Plaintiff’s attorney Charles Ng filed a Notice to Act in Person purportedly on behalf of the Plaintiff. On the same day, Charles Ng again purportedly on behalf of the Plaintiff issued an inter partes summons for leave to appeal against my Order (“Appeal Summons”) with draft grounds of appeal (“Draft Grounds”) annexed. An affirmation of Charles Ng of the same date was filed in support of the Appeal Summons. By such affirmation Charles Ng exhibited the General PA and stated he would rely on (a) the affirmations filed in opposition of the Injunction Application and (b) the submissions of the Plaintiff’s former legal representatives. 5.The Defendant was not legally represented all along, but required the assistance of his wife Madam Hui Lai Fong to make submissions at the hearing of the Appeal Summons before me on 7th March 2007 (“Appeal Hearing”). In September 2004, the Defendant suffered a stroke that resulted in speech disability. However, he had full mental faculty and was present at the Appeal Hearing. He made his submissions in the same fashion through his wife Madam Hui Lai Fong at previous hearings before Deputy District Judge Thomas Au and at the Second and Third Hearings before me in these proceedings without any objection from the Plaintiff’s legal representatives. 6.This Decision is handed down in English because my Reasons were in English and a number of English legal authorities were referred herein. I informed both Charles Ng and the Defendant at the Appeal Hearing that they would be at liberty to liaise with my clerk within 7 days upon collection/receipt of this Decision to arrange for English/punti interpretation by court translator at the District Court. If both parties make such request within the prescribed time, my clerk will arrange for them to attend court at a mutually convenient time for this Decision to be translated to both of them at the same time. II. Leave to appeal : principles 7.Section 63 of the District Court Ordinance Cap.336 (“DCO”) provides that a party may only appeal from the District Court to the Court of Appeal with leave. If a judge below refuses leave, the intended appellant may still apply for leave to appeal to the Court of Appeal. 8.The principles on an application for leave to appeal are set out in Ma Bik Yung v Ko Chuen HCMP4303/1999, Leong JA (unreported, 8th September 1999) citing Smith v Cosworth Casting Processes Limited [1997] WLR 1538 in which Lord Woolf provided the following guidelines :
III. Preliminary issues 9.There are 2 preliminary issues : (a) legal aid automatic stay, and (b) Charles Ng’s right to act on behalf of the Plaintiff. (a) Legal aid automatic stay 10.The Defendant recently applied for legal aid and the Director of Legal Aid filed a Memorandum of Notification of an Application for Legal Aid (“Memorandum”) on 2nd March 2007. By virtue of section 15 of the Legal Aid Ordinance Cap.91 and its regulations, there is a stay of 42 days following an application for legal aid unless otherwise ordered by the court. In the circumstances, unless the legal aid stay was lifted, the hearing of the Appeal Summons would have to be adjourned until after 13th April 2007. 11.Subject to preliminary issue (b), Charles Ng orally applied to lift the legal aid stay on the basis that (i) the Defendant had previously been unsuccessful in his application for legal aid, (ii) the Appeal Summons was urgent since the Plaintiff was still hospitalised and the Hospital was claiming against Charles Ng and his sister on their guarantees for the outstanding Hospital charges, and (c) the Defendant had appeared in the present proceedings without legal representation for some time so there would be no prejudice if he continued to do so to deal with the Appeal Summons. 12.Mr Recorder Kwok, SC in Bank of China (Hong Kong) Ltd v Fu Ming Kong Michael and anor HCA7769&3909/2000 (unreported, 24th June 2005) stated that :
13.The Court of Appeal in Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Ltd CACV39/1993 (unreported, 14th July 1993) set out the principles for the court’s guidance when considering whether to lift the legal aid automatic stay. The guiding principle is to do what is fair and just between the parties. Yuen J, as she then was, in Re Ip Lai Fan and Ip Lam On HCSD10&11/2000 (unreported, 3rd November 2000) summarised Nazareth JA’s guidance in Lee Shiu Ming’s case as follows :
14.As an initial observation, I was at the Appeal Hearing under the misapprehension that the Memorandum was the first one lodged by the Director of Legal Aid in relation to the Defendant’s application for legal aid in the present proceedings and that any previous application for legal aid by the 2nd Defendant was in relation to other legal proceedings. However, after the Appeal Hearing and on further review of the court file, it transpired that the Defendant had previously applied for legal aid in the present proceedings, and the Director had refused legal aid on 2nd August 2005. But my misapprehension had no effect on the outcome since I decided at the Appeal Hearing to lift the legal aid stay to deal with the Appeal Summons (see paragraph 24 below). 15.In respect of the present 2nd application for legal aid by the Defendant, I am of the view that it cannot be suggested that such application was an abuse of process. Pursuant to the Leave to Appeal Decision, Deputy District Judge Thomas Au granted leave to the Defendant to appeal against the Order 14 Judgment to the Court of Appeal on the Possession and Damages Arguable Cases (see paragraphs 40-46 of the Reasons). The Defendant initially indicated in the Reply Affirmation that he had not yet lodged the appeal because he had vacated the Premises and could not afford the legal costs and mental strain associated with such appeal. At the Third Hearing I advised the Defendant to consider applying for legal aid or free legal assistance from the 2 branches of the legal profession (see paragraph 51 of the Reasons). In paragraph 165 of the Reasons, I also reminded the Defendant that since a Directions Hearing would have to be fixed to deal with all necessary directions to progress the present proceedings, if he wished to seek legal aid or free legal assistance whether for the appeal for which the learned Deputy District Judge granted leave to appeal or for the present proceedings, he should do so quickly. Plainly, the Defendant’s present application for legal aid was made pursuant to the aforesaid matters. 16.As to whether there was urgency in dealing with the Appeal Summons, I bear in mind that the Plaintiff is an elderly gentleman of 83 years who suffers from various illnesses as well as amputation of his left leg. I believe he also requires regular haemodialysis. Charles Ng informed the court from the Bar table that the Plaintiff was still hospitalised in a general ward at the Hospital, and there was difficulty in arranging transfer of the Plaintiff to Queen Mary Hospital. There was, however, no affidavit evidence in relation to such information. 17.I further note that one of the Draft Grounds in the Appeal Summons asserted there was no evidence of other source of funds to pay for the Plaintiff’s hospital charges, so there was urgency in selling the Premises in order to utilise the sale proceeds for such purpose. 18.However, the Defendant through his wife Madam Hui Lai Fong disputed this by saying DBS had started to take steps to recover physical possession of the Godown Units/Carpark and the expected mortgagee sale proceeds of such properties should generate enough surplus to cover the Plaintiff’s medical fees. Charles Ng disagreed by saying there would be little surplus. 19.However, neither party filed any fresh affidavits to deal with the above matters beyond what was set out in paragraphs 117 and 122 of my Reasons. Charles Ng suggested he had previously commissioned a valuation report of the Godown Units/Carpark (but it was not evidence placed before the court for the Injunction Application) and so did the Defendant (but Mr Lee, former counsel for the Plaintiff, objected to the use of such valuation report for the purpose of the Injunction Application – see paragraph 122 of my Reasons). 20.The Defendant through his wife Madam Hui Lai Fong also submitted there was scant evidence of urgency since detailed information in relation to the finances of the Family Company and the PRC Companies was not placed before the court. She reminded that the Plaintiff was still a 25% shareholder of the Family Company. On the other hand, Charles Ng submitted he was struggling hard to keep the Family Company afloat and it was the Defendant who caused the Family Company’s financial decline by commencing the Winding-Up Proceedings. Again no further affidavit evidence was filed in respect of these matters and I can do no better than to refer to the analysis on the available evidence in paragraphs 105-114 of my Reasons. 21.Nevertheless, in considering whether to lift the legal aid stay, it remains a pertinent consideration that a Draft Ground in the Appeal Summons asserted there was urgency. 22.Next, subject to preliminary issue (b), Charles Ng only intended to rely on the Opposition Affirmation, the expurgated Charles Ng’s Affirmation and Ms Chan’s Affirmation as well as the Written Submissions for the purpose of the Appeal Summons. The Defendant, who should be well familiar with these matters, would not have to meet any new dimension to the Plaintiff’s case. 23.I further note the Defendant on 6th March 2007 lodged an application by summons for leave to extend time for service of the notice of appeal against the Order 14 Judgment for which Deputy District Judge Thomas Au granted leave to appeal (“Time Summons”). I will return to the Time Summons below, but suffice to note here the Defendant himself also applied under the Time Summons to lift the legal aid automatic stay. 24.Taking into account the above matters (but noting that some assertions were not supported by affidavit evidence) and reminding myself that I should be slow to lift the legal aid stay in face of the laudable policy reasons stated in Bank of China (Hong Kong) Ltd’s case, I decided at the Appeal Hearing that the present legal aid stay should be lifted so as to permit hearing of the Appeal Summons, but not for any other respects in relation to the present proceedings. I do not consider the Defendant will suffer insurmountable prejudice if the legal aid stay is lifted to such limited extent. (b) Charles Ng’s right to act on behalf of the Plaintiff 25.I have at the Appeal Hearing reserved my decision on this issue and received Charles Ng’s submissions in respect of the Appeal Summons de bene esse. I now set out my ruling and reasons. 26.The Plaintiff was not present at the Appeal Hearing since he was still hospitalised. Charles Ng submitted that under the General PA he was authorised to act as attorney for the Plaintiff in continuing/ conducting the present proceedings and issuing/pursuing the Appeal Summons pursuant to section 7 of the Power of Attorney Ordinance Cap.31 (“PAO”). 27.Section 7(1) of the PAO provides that a general power of attorney in the form set out in the schedule thereto or in a form to the like effect but expressed to be made under the PAO shall operate to confer on the donee of the power authority to do on behalf of the donor anything which he can lawfully do by an attorney. However, section 7(2) of the PAO provides that section 7 of the PAO does not apply to functions which the donor has as a trustee or personal representative. 28.In the present proceedings, the Plaintiff sued in his capacity as sole executor of the estate of the Deceased. Indeed, paragraph 1 of the Statement of Claim states as follows :
29.Charles Ng could not have been unaware of such limitation to his authority under the General PA vis-à-vis dealing with the Premises. He signed the PASP pursuant to the General PA, but the Purchaser’s solicitors by letter dated 17th January 2007 pointed out that the General PA was inadequate since the Plaintiff purported to sell the Premises in his capacity as the executor of the Mother’s Estate. As evident from paragraph 4 of Ms Chan’s Affirmation, the Plaintiff’s solicitors were of the view “there could be an argument that the General PA may not be sufficient to empower [Charles Ng] to sign the [PASP]”, so the Special PA and Confirmatory Deed were prepared to inter alia ratify and confirm the previous execution of the PASP. 30.Since by virtue of section 7(2) of the PAO the General PA had no application to the Plaintiff’s functions in issuing and continuing the present proceedings in his capacity as personal representative of the Mother’s Estate, Charles Ng had no authority under the General PA to act on behalf of the Plaintiff in the present proceedings. 31.Even so, did Charles Ng have any other right to issue the Appeal Summons for leave to appeal against my Order on behalf of the Plaintiff? 32.Section 15(1) of the DCO provides inter alia as follows :
33.But Charles Ng’s act in filing and serving the Notice to Act in Person and the Appeal Summons on behalf of the Plaintiff went beyond “addressing the Court” (向法庭陳詞). I am not persuaded that the ambit of section 15(1) of the DCO is wide enough to cover such acts. 34.Next, I find that Charles Ng’s acts went beyond the ambit of a McKenzie friend. In Lobo v Kripalani [1998] 2 HKLRD 325, 328, Godfrey JA explained the McKenzie friend as follows :
The aforesaid principles were applied in Re Chung Kau, ex p The Hong Kong Housing Authority HCB581/2003, Deputy High Court Judge Poon (as he then was) (unreported, 15th May 2003) and The Daiwa Bank, Limited v Shum Shek Chiu trading as Lung Tat Company & anor HCMP4020/2000, Chu J (unreported, 2nd February 2005). In the latter case, although the learned judge refused to allow a third party (who was neither counsel nor solicitor) to present the 2nd defendant’s case to the court, the learned judge exercised some flexibility and with no objection from the substituted plaintiff permitted the daughter of the 2nd defendant (with the 2nd Defendant present at the hearing) to address the court. 35.In any event, since a McKenzie friend is not entitled to address the court directly, it is doubtful whether he can represent a litigant in person to file any legal application with the court. In my view, for a litigant who is sui juris and with full mental capacity, it falls on him to make his legal application to the court. 36.Still further, does the court have inherent discretion to allow a litigant to appoint a representative to act as his advocate in legal proceedings? According to A Cheung J in Ho Lan Fong v Lam Gook trading as Lam Tai Hing Restaurant HCLA130/2003 (unreported, 11th May 2004), the answer is in the affirmative (see also Tsui Chung Fai v Kwok’s Fashion Company Limited HCLA154/2003, Lam J (unreported, 21st May 2004)). A Cheung J held that the starting point was that right of audience before a court is a matter of procedure of that court, and a court exercising judicial functions has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down in enacted law, and it cannot adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or (possibly) adopted by ancient usage. Such principle applies to inferior courts as well. 37.A Cheung J referred to the Privy Council’s decision in O’Toole v Scott [1965] AC 939 where the Privy Council explained that such discretion was properly exercisable only when its exercise was necessary in the administration of justice, and not when it was merely desirable for convenience and expedition and efficiency in the administration of justice. 38.A Cheung J cited a few examples where the local courts have exercised the jurisdiction to allow a party to appoint a layman (usually a close relative) to act as advocate for him or her in the proceedings before the court. 39.In Berry v Allan CACV170/1996 (unreported, 26th February 1997), P Chan J (as he then was) allowed the sister of the respondent to address him on behalf of the respondent in support of the application taken out by the respondent for a stay/dismissal of the divorce suit on medical grounds. Such decision was affirmed on appeal, but the Court of Appeal made clear that such exercise of discretion did not bind any other judge or extend to any other application. Indeed, Hartmann J subsequently in Berry v Allan HCMC6/11995 (unreported, 19th December 1997) expressed misgivings in the continued representation of the respondent by his sister. What is of particular interest in Barry’s case is that the application to stay/dismiss the divorce suit was taken out by the respondent himself and his sister only acted as advocate. 40.In Herminia Lao Jez v Siu Wai Keung CACV333/1998 (unreported, 16th March 1999), although the appellant landlord was represented by her daughter at the hearing of the appeal, she herself was also present and it was she who lodged the appeal against the order of the Lands Tribunal. 41.In Chan Kueng Un, Roy v China Vest II-A, LP & ors CACV154/1999 (unreported, 2nd September 1999), the appellant was adjudged bankrupt and he appealed to the Court of Appeal. He was absent at the hearing, but his elder sister was present and she was allowed to address the court on the appellant’s behalf. However, it was plain in that case that the appellant himself lodged the appeal (“…… Mr Chan has appealed to this court and we have his notice of appeal dated 10June 1999 before us” : per Godfrey JA at paragraph 1) and the court granted leave for his sister to address the court “without objection from the judgment creditors”. 42.In Law Siu Yin Ada (alias Law Siu Yin, Law Lo Siu Yin, Lo Siu Yin, Lo Hau Chun) v Lo Hung Kwan CACV1034/2000 (unreported, 3rd May 2001), the plaintiff was some 80 years old and leave was granted to the plaintiff to be represented in court by her son provided that she was present in court throughout the proceedings. 43.In ABN Amro Bank NV v Manharlal Trikamas Mody & anor CACV434/2002 (unreported, 22nd December 2003), the 2nd defendant applied to set aside the master’s order and her application was supported by her own affirmations as well as her daughter’s affirmations. The 2nd defendant requested that the appeal to the Court of Appeal be conducted by her daughter. Yuen JA said that “[although] this went beyond the usual ambit of a Mackenzie friend’s liberties, we granted the request for the sole reason that [the daughter] had been permitted to conduct the proceedings before the judge” (my emphasis). There was no discussion in the decisions of the lower court on 18th September and 20th November 2002 (HCMP4724/2001) on this issue. In any event, the 2nd defendant was herself present at the hearing before the Court of Appeal. 44.It is evident from the aforesaid authorities that the relevant application to the court remains that of the litigant himself or herself and the inherent discretion discussed above essentially relates to whether the court should allow a lay person to act as advocate for the litigant. 45.Given the age and health condition of the Plaintiff and assuming that he is not under any disability within the meaning of Order 80 rule 2 of the Rules of the District Court (“RDC”), had the Appeal Summons been made by the Plaintiff himself and/or had it been established to the satisfaction of this court that the Appeal Summons were the Plaintiff’s own will and intention, this court may have considered Charles Ng’s request to represent the Plaintiff in support of the Appeal Summons with more favour. 46.However, the Plaintiff was not present at the Appeal Hearing and there was no affidavit or documentary evidence at all from the Plaintiff himself as to his own intentions in respect of the Appeal Summons. All that was before the court in relation to the application for leave to appeal against my Order were 3 documents emanating entirely from Charles Ng, ie the Notice to Act in Person, the Appeal Summons and the affirmation of Charles Ng (collectively, “Charles Ng’s Documents”). 47.I also bear in mind that it was the Defendant’s case (and Madam Hui Lai Fong on behalf of the Defendant submitted) that Charles Ng masterminded the present proceedings as well as the attempt to sell the Premises to defeat the intention of the Mutual Wills (see paragraphs 55, 83, 105-106 and 124 of my Reasons). 48.Madam Hui Lai Fong on behalf of the Defendant also submitted that the Plaintiff would have been unaware of the Appeal Summons. Indeed, the Defendant by his Reply Affirmation and his submissions through Madam Hui Lai Fong at the Third Hearing had previously queried the Plaintiff’s mental capacity and fitness (see paragraph 76 of the Reasons). However, prior to March 2007, the Plaintiff was legally represented, and his Opposition Affirmation, Special PA and Confirmatory Deed were all attested by his attending physician (who confirmed he was mentally alert at that time) and by an independent solicitor (who witnessed his execution of these documents). In the absence of countervailing evidence, I had at the Third Hearing refused the Defendant’s challenge to the Plaintiff’s mental status, but left open the question of the Plaintiff’s future mental condition. It is also apparent that even on the Plaintiff’s own case, there were times when his medical condition was too unstable for him to deal with legal matters (see paragraph 62 of my Reasons). 49.Here, there was no evidence before me that Charles Ng’s Documents had been read over to the Plaintiff or that he understood and agreed to the same, and there was also no additional comfort (as there had been in respect of the Plaintiff’s earlier documents) of confirmation by the Plaintiff’s physician and/or an independent solicitor as to the Plaintiff’s mental status and/or understanding. In short, there was no evidence before me of the Plaintiff’s current mental condition and/or of his own intentions in relation to the present application for leave to appeal. 50.There is no dispute that Madam Hui Lai Fong visited the Plaintiff at the Hospital in November 2006 and February 2007. The latter visit in February 2007 came about because at the Fourth Hearing I encouraged the parties to consider the possibility of temporarily putting aside their differences over the Premises to allow the Defendant to visit the Plaintiff on a familial basis in view of the then imminent Chinese New Year. 51.As regards the visit in November 2006, the Defendant through Madam Hui Lai Fong submitted that at that time the Plaintiff could not speak but reacted strongly when the present litigation was mentioned. She said Charles Ng threatened to report to the police and restrained further visits to the Plaintiff unless the request was made through him, as evidenced by a strongly worded letter from the Plaintiff’s solicitors dated 23rd November 2006. On the other hand, Charles Ng in his submissions before me disagreed and said the Plaintiff (who was then at the ICU) could not speak because he was intubated. Charles Ng further claimed that the Plaintiff was only able to speak when he was extubated upon return to the non-ICU ward. However, the above submissions were not supported by affidavit evidence. 52.As regards the visit in February 2007, neither Charles Ng nor the Defendant filed any affidavit evidence to describe the circumstances. Madam Hui Lai Fong submitted that the Plaintiff could not open his eyes, could not speak and was unaware of what went on. She argued that the Plaintiff could not have been aware of the Appeal Summons. On the other hand, Charles Ng did not directly address this in his submissions, but criticised the Defendant for failing to put the welfare of the Plaintiff in the forefront and for failing to visit the Plaintiff in February 2007. Charles Ng emphasised his caring attitude towards the Plaintiff by engaging helper and nurse to look after him. 53.Madam Hui Lai Fong explained that the Defendant did not personally visit the Plaintiff in February 2007 because he was a former stroke victim with problematic blood pressure. The Defendant was unhappy and emotional over the Plaintiff’s condition, and feared his blood pressure and health would not be able to withstand the emotional turbulence that a personal visit to the Plaintiff might cause. Madam Hui Lai Fong said she went on the Defendant’s behalf and was very emotional herself when she saw her father-in-law at the Hospital. 54.In light of the aforesaid analysis and the different assertions made from the Bar table (but bearing in mind that some respects of such assertions were unsupported by affidavit evidence), I am not satisfied that Charles Ng’s Documents clearly represented the intention and/or will of the Plaintiff. In the circumstances, I do not consider it fair and just for Charles Ng to make the present application for leave to appeal and to address the court on such application purportedly on behalf of the Plaintiff (ie to represent the Plaintiff in the present proceedings rather than just acting as his advocate for a particular hearing). But in any event, in light of my conclusions below in relation to the Appeal Summons, there will be no miscarriage of justice by not granting leave for Charles Ng to appear on behalf of the Plaintiff. 55.However, I urge the Plaintiff to give careful consideration and to seek legal advice on his representation in these proceedings and on the need (if any) for the appointment of a next friend to act on his behalf prior to the Directions Hearing on 19th April 2007 referred to below. Should the Plaintiff require information on the legal aid scheme, the Resource Centre for Unrepresented Litigants and the free legal advice scheme of the 2 branches of the legal profession, Charles Ng can liaise with my clerk for the details. IV. Draft Grounds 56.Since I have concluded that Charles Ng was not properly authorised to act on behalf of the Plaintiff in the present proceedings, and I am not prepared to exercise my discretion to grant leave for him to do so, the Appeal Summons issued by him purportedly on behalf of the Plaintiff is dismissed. However, in case I am wrong, I will for completeness consider the Draft Grounds on which I received submissions from Charles Ng de bene esse. 57.The Draft Grounds relied on were as follows :
58.Charles Ng in his submissions urged the Defendant to allow the sale of the Premises so that the sale proceeds could be used for the Plaintiff’s hospital treatment. He urged that each side should make a concession for such purpose although he did not say what concession would have been made by the Plaintiff if the Injunction were lifted. 59.In the course of his submissions at the Appeal Hearing, Charles Ng emphasised that the disputes between the parties in the present proceedings should proceed to trial. However, given the Plaintiff’s intention to utilise the net sale proceeds of the Premises (if the Injunction were lifted) to repay the DBS Indebtedness, pay his legal/accountant’s fees and pay his incurred and future medical expenses, and further given his assertion that he had meagre financial resources, the subject matter of the disputes (namely, the Premises or the relevant proceeds) would be lost or substantially used up, and any future success at the trial by the Defendant would not be adequately compensated by damages (see paragraph 145 of my Reasons). 60.I now turn to the specific Draft Grounds. V. 1st and 2nd Grounds 61.The 1st Ground was that the judge erred in finding that the Premises were bequeathed to (轉贈) the Defendant, when in fact the contents of the mutual wills did not expressly state so. 62.There is no dispute that the Mother’s and Father’s Wills were mutual wills. They were in identical terms except that the references to “my husband” and “my said husband” in the Mother’s Will were substituted by references to “my wife” and “my said wife” in the Father’s Will. 63.Clauses 5 and 8 of the Mother’s Will set out in full in the Order 14 Judgment were as follows :
64.Since the Deceased predeceased the Plaintiff, the combined effect of clauses 5 and 8 of the Mutual Wills was for the Plaintiff to inherit the Mother’s Estate, but the Defendant as sole beneficiary of the Father’s Estate would inherit such estate upon the Plaintiff’s death, subject to inter alia the Plaintiff’s rights under the floating obligations vis-à-vis the Premises (being part of the Mother’s Estate inherited by the Plaintiff) during his lifetime on which the parties had differing views (see paragraph 10 of my Reasons). 65.In respect of the Plaintiff’s floating obligations vis-à-vis the Premises during his lifetime, my view of the law was set out in paragraphs 86-89 of the Reasons. There I acknowledged that under mutual wills, the floating trust over the estate of deceased party and the assets of the surviving party did not prevent the surviving party from dealing with the assets received from the estate of the deceased party and the surviving party’s own assets during his lifetime, but it prevented the surviving party from doing so in a manner that was inconsistent with the mutual wills arrangement. Further, on the death of the surviving party, the floating trust would “crystallise” in favour of the beneficiaries named in the surviving party’s own will. In this respect I cited in support the judgment of David Donaldson QC in Healey v Brown Ch D, 25th April 2002, paragraphs 13-14, which was also relied on by the Plaintiff’s former counsel Mr Lee. 66.In the circumstances, I did not in my Reasons find that under the Mutual Wills there was an absolute bequest of the Premises to the Defendant. At the same time, it would not be right to say the Mother’s Will bequeathed the Premises to the Plaintiff absolutely and unconstrained by the Parents’ mutual will arrangement under the Mutual Wills. Although such mutual arrangement allowed the Plaintiff to deal with the Premises during his life as owner, the case law suggested (and Mr Lee did not disagree) that such mutual arrangement would prevent the Plaintiff from dealing with the Premises in a manner inconsistent thereto (ie acting in a way calculated to defeat the common depositive plan). 67.In this respect, I draw comfort from the observations and summary of the law in paragraphs 9 and 27-29 of the Order 14 Judgment and the Written Submissions that recognised the surviving party could deal with the assets of the deceased party in any way he wished but not in ways calculated to defeat the intention of the mutual arrangement (see, for example, paragraph 20 of Mr Lee’s Written Submissions). 68.In my view, there is no realistic prospect of success on the 1st Ground. 69.Next, it was contended that the judge failed to sufficiently consider the Plaintiff’s rights under the mutual wills (including the right to sell the assets thereunder, etc) and that the judge in granting the Injunction deprived the Plaintiff of his right during his lifetime to deal with the assets bequeathed by the Deceased. 70.As explained above, although I recognised the Plaintiff had a right to deal with the Premises during his lifetime, such right was bound by the mutual wills arrangement (see paragraphs 95-96 of my Reasons). Nourse J in In re Cleaver [1981] 1 WLR 939, 947 observed as follows :
The legal authorities suggested that the surviving party was not permitted to dispose of property subject to a mutual will arrangement where the act was calculated to defeat the intention of the mutual agreement (Healey’s case at paragraph 14) or where he acted deliberately to defeat the purpose of the mutual arrangement (Lewis v Cotton [2001] 2 NZLR 21, 32). If the surviving party so acted, Healey’s case at paragraph 13 suggested there was an arguable case that the floating trust would “crystallise” at the moment of such deposition instead of upon death of the surviving party. 71.I adopt but do not propose to repeat my analysis of the First and Second Issues in my Reasons, which Charles Ng did not challenge in the Draft Grounds. Since it was arguable that the “crystallisation” of the surviving party’s floating obligation or constructive trust “must occur” at the time of the wrongful disposition, it followed there was an arguable case that Plaintiff was no longer free to use or deal with the Premises for his own benefit during his lifetime upon the occurrence of the acts canvassed under the First and/or Second Issues, or the Defendant as beneficiary under the Father’s Will would have a right to take action to unravel such acts. 72.I bear in mind that the Plaintiff did not dispute the legal authorities cited for the aforesaid legal propositions and that for the purpose of an interlocutory injunction, it is only necessary to consider whether there is a serious question to be tried. There is no need to form a final view on the law. In the circumstances, there is no realistic prospect of success in relation to the 2nd Ground. VI. 3rd and 4th Grounds 73.It was next argued that the judge failed to consider there was no other evidence to show the Plaintiff had other assets for settling his hospital charges. 74.Even as early as the Second Hearing, in declining to accede to the Plaintiff’s application to release the Initial Deposit from the Plaintiff’s Undertaking in order to use such monies to partially settle the Plaintiff’s outstanding medical bills, I have taken note of the Plaintiff’s case that he had meagre financial resources (see paragraph 71 of my Reasons). 75.In respect of the Injunction Application, I also took note of the Plaintiff’s assertions in the Opposition Affirmation that (a) he only had meagre savings and no significant stocks or other realisable properties, and the Other Children had big problems in meeting his hospital bills and were desperately looking for money, and (b) what was left behind that could be realised to pay his medical fees, his legal fees and the claim from DBS was the Premises (see paragraph 100 of my Reasons). 76.However, although the Defendant did not adduce positive countervailing evidence to refute the Plaintiff’s assertions as to his finances, Mr Lee at the Third Hearing did not disagree that the court was not bound to accept the asserted reasons but must consider all the circumstances and the inherent probabilities/improbabilities of the matter. After all, the Defendant could hardly be expected to adduce evidence on the current or up-to-date status of the financial resources of the Plaintiff and/or the Other Children when he had no contact with them and had left the Family Company for some time (see paragraphs 98-99 and 113 of my Reasons). I adopt and do not repeat here the analysis in paragraphs 132-139 and 143-144 of my Reasons. More importantly, the Plaintiff’s evidence before me at the Third Hearing did not explain how the sale of the Premises would financially secure continued future care by Dr Chan and long-term haemodialysis at the Hospital after the discharge of the Plaintiff from hospitalisation. 77.In my view, there is no realistic prospect of success on the 3rd Ground. 78.It was next argued that the judge failed to carefully and objectively consider the importance of the sale of the Premises to the Plaintiff and the irreparable damage to him if he were restrained from selling the Premises. 79.On the question of whether there was irreparable loss, I took note of the fact that the Plaintiff admitted he had little means (see paragraph 145 of my Reasons) as well as the fact that the Defendant confessed he had limited resources so that the Defendant’s Undertaking would not sufficiently compensate the Plaintiff if the Injunction were granted (see paragraphs 146 and 151 of my Reasons). I further noted that in respect of the Plaintiff’s prospective medical care/treatment, it appeared the crux of concern was the need for continued medical treatment by Dr Chan who was well familiar with the Plaintiff’s medical background and history (see paragraph 136 of my Reasons). Still further, despite the Defendant’s query whether the Plaintiff must receive medical treatment at the Hospital and despite the safety net offered by the public hospital system, I disagreed that the mere availability of the public hospital system meant there would be no hardship or inconvenience to the Plaintiff (see paragraph 152 of my Reasons). 80.However, I relied on the analysis in paragraphs 132-139 of my Reasons and pointed out that on the Plaintiff’s stated intentions to use the sale proceeds of the Premises to pay for his “pressing” liabilities (ie the DBS Indebtedness, his legal/accountant’s fees and his medical fees), there would be little money left to pay for continued future care by Dr Chan and for long-term haemodialysis at the Hospital in any event (see paragraph 153 of my Reasons). No explanation was forthcoming on the evidence then before me. 81.I have considered the above factors together with all the circumstances in assessing the balance of convenience (see paragraphs 148-163 of my Reasons). In this respect, I have already considered the hardship or inconvenience to the Plaintiff that arose from the inability to sell the Premises if the Injunction was granted (see paragraphs 151-153 and 163 of my Reasons). 82.In my view, there is no realistic prospect of success in relation to the 4th Ground. VII. Exercise of discretion 83.In coming to the aforesaid conclusions, I bear in mind that the purported intention to appeal against the Order is one against an exercise of discretion. An appeal will not be entertained from an order which was within the discretion of the judge to make, unless it be shown that he has exercised the discretion under a mistake of law or under a misapprehension as to the facts or that he took into account irrelevant matters (see Hong Kong Civil Procedure 2007 Vol.1 para.59/1/49 at pp.872-873, Hadmor Productions v Hamilton [1983] 1 AC 191, 220 as endorsed by the Court of Appeal in PCCW-HKT International Ltd v New World Telephone Ltd [2001] 2 HKLRD 141). Indeed, the Court of Appeal is generally slow to interfere with the decision of a judge on an application for an interlocutory injunction in view of the wide discretion given to the judge (see Hong Kong Civil Procedure 2007 Vol.1 para.29/1/34 at pp.527-528 and Centalic Technology Development Ltd v Worldwide Industrial Ltd [1996] 3 HKC 498). VIII. Conclusion in respect of the Appeal Summons 84.In the circumstances, had Charles Ng been entitled to act on behalf of the Plaintiff to make the present application for leave to appeal against my Order, I would have dismissed the application. The Appeal Summons is dismissed. There is no reason why costs should not follow event. 85.Section 53(2) of the DCO provides inter alia that subject to specific provision made in the DCO or any other ordinance (other than subsidiary legislation made under the DCO or any other ordinance), section 53(1) of the DCO does not authorise an award of costs against a person who is not a party to the relevant proceedings. However, section 2 of the DCO defines a “party” as including every person “attending any proceedings, although not named in the record”. Charles Ng plainly fell within the definition of a “party” for he attended the Appeal Hearing and addressed the court. In the circumstances, I make a costs order nisi that costs of the Appeal Summons be paid by Charles Ng to the Defendant to be taxed if not agreed. IX. Time Summons 86.By reason of the matters set out in paragraph 15 above, the Defendant was late in serving the notice of appeal against the Order 14 Judgment. The Defendant therefore wished to apply to this court for extension of time by the Time Summons. 87.Pursuant to Order 59 rules 4 and 19 of the Rules of the High Court (“RHC”), the intended appellant should have served the notice of appeal no later than the expiry of 14 days beginning on the date immediately following the date on which leave to appeal has been granted under section 63 of the DCO. Interestingly, there is another provision in Order 58 rule 2(8) of the RDC to the effect that where leave to appeal was granted by the District Court, the notice of appeal must be served under Order 59 rule 3(5) of the RHC not later than 7 days after the date when leave was granted. There seemed to be some incongruity between the time limit imposed in the RHC and RDC. But such difference is immaterial in the present case because the Leave to Appeal Decision was handed down on 14th December 2006. So if the notice of appeal had not been served by February 2007, it was plainly out of time whether the time limit for doing so was 14 or 7 days. 88.Order 59 rule 15(1) of the RHC provides inter alia that without prejudice to the power of the Court of Appeal or a single judge under Order 3 rule 5 to extend the time prescribed by any provision of Order 59, the period for serving notice of appeal under rule 4 may be extended by the court below on application before the expiration of that period. This meant that the court below (ie the District Court in the present case) only had jurisdiction to grant extension of time for service of the notice of appeal if such application was made within the 14-day period allowed under Order 59 rules 4 and 19 of the RHC. There is no similar provision in the RDC other than the general provision for extension of time under Order 3 rule 5. In my view, given the specific provision in Order 59 rule 15(1) of the RHC, it is the relevant provision applicable to the present circumstances. 89.Since the period specified in Order 59 rule 15(1) of the RHC has expired in the present case, the Defendant should apply to the Court of Appeal or a single judge for extension of time under Order 3 rule 5 of the RHC. 90.At the Appeal Hearing I referred the parties to the provisions in the RHC. I also granted leave for the Defendant to withdraw the Time Summons. It is for the Defendant to make the appropriate application to the Court of Appeal or a single judge under Order 59 rule 15(1) and Order 3 rule 5 of the RHC. 91.I have reserved the question of costs of the Time Summons. Since the appropriate application should have been made to the Court of Appeal or a single judge, there is no reason why the Defendant should not bear the costs of the Time Summons before me. I therefore order that the Defendant do pay the Plaintiff costs of the Time Summons to be taxed if not agreed. I also apportion 15 minutes of the hearing time before me for the purpose of the Time Summons in order to assist the Taxing Master. X. Directions Hearing 92.At the Fourth Hearing, I directed that not before 21 days but within 35 days of the date of the Fourth Hearing, the Plaintiff and the Defendant do jointly fix or failing joint application the Plaintiff do fix a Directions Hearing for the further conduct of the present proceedings pursuant to Order 29 rule 7 of the RDC to be heard before me in chambers (open to the public) with half hour reserved. 93.To date there has been no attempt to fix the Directions Hearing. At the Appeal Hearing before me, I fixed the Directions Hearing to be heard before me at 9:30am on 19th April 2007 in chambers (open to the public) with half hour reserved. For the avoidance of doubt, such hearing date is after the expiry of the present legal aid automatic stay.
Representation: The Plaintiff in person and absent. The Plaintiff’s attorney Ng Chan Sing Charles present and in person. The Defendant in person and present. |
Cases cited in this judgment
Further hearings and rulings under DCCJ 2830/2005