Kwan Chui Kwok Ying and Another v. Tao Wai Chun and Others

HCMP 2996/1990

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2996 OF 1990

_______________

IN THE MATTER of the estate of KWAN KAI MING, deceased

_______________

BETWEEN

THIRD PARTY PROCEEDINGS

_______________

Before: Deputy High Court Judge To in Chambers (Open to Public)

Date of Hearing: 26 March 2008

Date of Decision: 26 March 2008

_____________

D E C I S I O N

_____________

Introduction

1.On 30 May 2006, I handed down judgment ordering the 6^th Defendant to pay the costs of the 15^th Defendant in the Third Party Proceedings in this action.  The 6^th Defendant, since then acting in person, lodged a notice of appeal against my judgment within the prescribed time limit, but without first seeking leave either from me as the court below or the Court of Appeal as required under section 14(3)(e) of the High Court Ordinance (Cap 4).  On 11 December 2007, the Court of Appeal dismissed the appeal for want of jurisdiction as the appeal was not properly constituted. 

2.On 5 February 2008, the 6^th Defendant filed a notice of motion seeking leave to appeal to the Court of Final Appeal out of time against the judgment of the Court of Appeal.  On the same day, he also took out a summons seeking leave from me to appeal against my judgment dated 30 May 2006.  On 3 March 2008, he further applied to the Court of Appeal to stay the execution on my order made on 30 May 2006 and on three other orders of the Court of Appeal made in relation to his appeal.  On the same day, he also took out another summons applying to me to stay on my order made in my judgment dated 30 May 2006 and on my order made in my decision dated 4 May 2007 in respect of the costs as between the 15^th Defendant and the estate of their father.  The 6^th Defendant’s applications to the Court of Appeal are scheduled to be heard before the Court of Appeal on 30 April 2008.  I am now concerned with his applications to me for leave to appeal and for stay of execution on my two orders in my judgment and my decision.

Application for leave to appeal

3.Mr Arthur Wong, counsel for the 15^th Defendant, opposed the application for leave to appeal on two grounds, namely: lack of jurisdiction and merit. 

Jurisdictional ground

4.On the jurisdictional ground, Mr Wong submits that my order which the 6^th Defendant intended to appeal against was sealed on 7 July 2006 and time for service of notice of appeal had long expired by about one and half years.  Hence, Mr Wong argues that I have no jurisdiction to grant leave.  He concedes, as submitted by the 6^th Defendant, that he cannot find any provision in the High Court Ordinance or the Rules of the High Court stipulating a time limit within which an application for leave to appeal  may be made. 

5.I think the position is simply this.  My order made on 30 May 2006 is solely related to costs.  Section 14(3)(e) of the High Court Ordinance provides that no appeal shall lie against such an order without the leave of the trial court or of the Court of Appeal.  The section does not set the time limit within which such application shall be made.  A time limit is not necessary.  If an application is made within the time limit for serving a notice of appeal, no problem would arise.  If an application is made beyond such time limit, any leave granted would be nugatory without the time for serving the notice of appeal being extended or abridged.  Except as provided for in Order 59 rule 15 of the Rules of the High Court, only the Court of Appeal or a single judge of the Court of Appeal by virtue of Order 3 rule 5(4) has jurisdiction to extend or abridge the period for serving notice of appeal.  The only exception is that the period may be extended or abridged by the court below on application made before the expiration of the specified period.  But, the court below has no jurisdiction to extend or abridge the period for serving notice of appeal if the application is not made within that period.  Thus, the court below does have jurisdiction to grant application for leave to appeal, whether made before or after the period for serving a notice of appeal.  But as a matter of practical sense, such jurisdiction should rarely be exercised, if made beyond the time limit for serving notice of appeal.

6.The above conclusion is supported by para 59/14/4 of Hong Kong Civil Procedure 2008, volume 1 which reads:

“…  Where the time limit for appealing has not yet expired, the Court of Appeal or a single judge will not entertain an application for leave to appeal, unless an application for leave has been made to the court below and refused, …  Where, however, the time limit for appealing has already expired, the practice of the Court of Appeal is to accept a composite application for leave to appeal and for an extension of time for appealing without referring the leave to appeal part back to the court below.  In Warren v T Kilroe & Sons Ltd [1988] 1 WLR 516; [1988] 1 All ER 638 the Court of Appeal held that, where an appellant requires leave to appeal either from the court below or from the Court of Appeal, the court below has jurisdiction to entertain an application for leave to appeal even though made after the time limit for serving notice of appeal has expired; but, in such case, the Court of Appeal has jurisdiction to entertain, and does entertain, a composite application for leave to appeal and for an extension of time for appealing without requiring an application for leave to appeal to be made to the court below first.  Although the court below has jurisdiction to grant leave to appeal even after the time limit for serving notice of appeal has expired (Warren v T Kilroe & Sons Ltd, above) the court below has no jurisdiction to grant an extension of time for appealing where the application was not made (i.e. lodged with the court below) before the expiry of the time limit for serving notice of appeal (see O. 59 r.15). …”

7.Thus, I have jurisdiction to grant leave to appeal despite the time for serving notice of appeal has expired.  But, as I have said, such jurisdiction should rarely be exercised if the application is made after expiration of the period for serving notice of appeal.  The 6^th Defendant has made it amply clear that he is not applying to me for extension of time and in any event I have no jurisdiction to entertain such an application.  In the circumstances, I can see no reason for exercising my jurisdiction to grant him leave to appeal.  Furthermore, such jurisdiction should not be exercised in the total absence of merit in the intending appeal (see below).

Merit consideration

8.The thrust of the 6^th Defendant’s case in the intending appeal is exactly the same as that of his case before me at the trial of the Third Party Proceedings, i.e. despite he is no longer disputing the fact that the 15^th Defendant is his brother, he had no knowledge that the 15^th Defendant is.  He says that despite the past twenty years, including the sixteen years of litigation, even today he still does not know and does not believe that the 15^th Defendant is his brother.  He submits that my judgment was flawed in many respects because I was misled by the 15^th Defendant and the DNA evidence.  He argues that the DNA evidence only showed that the 15^th Defendant is not the son of his uncle and aunt, but not that the 15^th Defendant is the son of his father because his father’s blood was not available for DNA profile analysis.  The conclusion from the DNA analysis was based on DNA profiling using blood samples from the 15^th Defendant as well as those from the 2^nd Plaintiff and the 8^th Defendant whom the 6^th Defendant had no dispute were his blood siblings.  The 6^th Defendant’s argument shows how recalcitrant and determined he was to deny the truth he knew.  His submission is not bona fide.  With the standard of proof he demands, he can never be satisfied of anything he does not wish to believe.

9.One of the flaws in my judgment alleged by the 6^th Defendant is my background finding of fact that the 15^th Defendant was born in the Philippines.  He argues that that finding was not supported by any evidence.  That was a finding of fact based on undisputed evidence, if not common ground, favourable to the 6^th Defendant.  It gave some support to the 6^th Defendant’s case of his lack of knowledge about the 15^th Defendant’s parentage.  Even if I were wrong in that finding, it will not assist the 6^th Defendant in his intending appeal in any way.  He also advanced other arguments about the flaws in my finding of fact.  I do not find it necessary to repeat and deal with them here.  Suffice it is to say, I was fully aware of the thrust of his case.  I have written a 73-page judgment which covered the arguments repeated today before me.  At the trial, I directed my mind to the issue whether the 6^th Defendant genuinely believed that the information relating the 15^th Defendant in the Macau birth certificate, the 1957 and 1959 Chong Tak Certificates, which formed the 6^th Defendant’s basis for taking the Third Party Proceedings, were true: see paragraphs 46 to 64 of my judgment dated 30 May 2006.  I concluded that he knew they were not true and he never believed that the 15^th Defendant is the son of his uncle and aunt.  There is no factual basis for the 6^th Defendant to instigate the Third Party Proceedings in 1994 on that basis and to launch the intending appeal now.

10.In paragraphs 105 to 128 of my judgment dated 30 May 2006, I gave detailed reasons for ordering indemnity costs against the 6^th Defendant.  I felt a very strong sense of indignation at the 6^th Defendant’s conduct in instigating the Third Party Proceedings.  The award of costs is a matter which is solely within the discretion of the trial judge.  It is well settled by very strong authorities from the Court of Appeal that the Court of Appeal will not interfere with the judge’s exercise of such discretion, not even if the Court of Appeal would have exercised it differently: see Choy Yee Chun and Bond Star Development Ltd [1997] HKLRD 1327 at 1337 and 1339 per Stock and Yeung JJ, as they then were; China Venturetechno International Company Limited and New Century Chain Development Company Limited [1996] 2 HKLRD 18 and Ho Shu Kwong and Chiang Chun Yuan [2002] 3 HKLRD 419.  Based on the lack of any factual basis to appeal and on the strength of these authorities, I can hardly see any chance of success in the intending appeal.

Conclusion

11.I find that there is no merit in the 6^th Defendant’s intending appeal.  For this reason alone, the application for leave to appeal must be dismissed.  Furthermore, the time for serving notice of appeal having been expired, it is inappropriate to exercise my discretion to grant him leave to appeal.  The application is therefore dismissed.

Application to stay of execution

12.The 6^th Defendant’s grounds for stay of execution are, in essence, that he has a strong case on appeal and that it will be inappropriate and inconvenient to proceed to taxation on costs when his appeal will be concluded within half to one year.  He said that it will be very inconvenient for him if no stay is granted for he will have to check page by page the bills for the past sixteen years of litigation and has to prepare for the intending appeal at the same time.  He argues further that all the costs of taxation will be wasted if his appeal is successful.

13.The following principles are well settled: see Wenden Engineering Service Company Limited and Lee Shing Yue Construction Company Limited, unreported, HCCT 90/1999, per Ma J, as he then was.  An appeal does not operate as a stay on the order appealed against.  The approach of the court is that it does not make it a practice of depriving a successful party of the fruits of his litigation and locking up funds to which he is prima facie entitled.  The starting point for considering a stay of execution is that there are strong grounds in the intending appeal and that the appeal will be rendered nugatory unless a stay is granted.

14.For reasons as I have already given, there is no merit in the intending appeal.  The 6^th Defendant will not be prejudiced if no stay is granted.  If he is successful in the appeal, he will be compensated for the time and costs thrown away in the taxation process.  There is nothing to suggest that the 15^th Defendant will be unable to pay him any costs, if awarded.  Thus the intending appeal will not be rendered nugatory if a stay of execution is refused.  On the other hand, if a stay of execution is allowed, the 15^th Defendant will suffer prejudice.  The litigation has been dragged on for seventeen years and maliciously so by the 6^th Defendant.  Tremendous amount of costs have been incurred by the 15^th Defendant who has been drawn into this meaningless litigation.  The costs awarded to the 15^th Defendant are merely reimbursements for money spent.  They cannot even be described as fruits of litigation.  There is all the more no reason to delay the 15^th Defendant of his reimbursement.  A stay of execution of my costs order made in my judgment dated 30 May 2006 will be prejudicial to the 15^th Defendant.  The 6^th Defendant has no locus standi to apply to a stay of execution on the order made in my decision dated 4 May 2007.  He has advanced no reason why that order should be stayed.  For the above reasons, the application for stay of execution of my costs order must be dismissed.

costs of this hearing

15.There are no merits in the two applications.  The grounds advanced in support of the applications are clearly frivolous and vexatious.  Parallel applications have been made to the Court of Appeal.  The applications now before me are obviously calculated to occasion delay and to increase the costs of the 15^th Defendant.  They are abuse of process of the court. 

16.Furthermore, these applications are continuation of the Third Party Proceedings.  Obviously, the 6^th Defendant’s malice in instigating those proceedings is being carried over into these applications.  For the same reasons as I have given in my judgment dated 30 May 2006, it is appropriate that the 6^th Defendant should pay the 15^th Defendant’s costs of these two applications on indemnity basis.

conclusion

17.For the above reasons, the 6^th Defendant’s applications for leave to appeal and for stay of execution are dismissed with costs to the 15^th Defendant, to be taxed on indemnity basis.

The 6^th Defendant, appearing in person

Mr Arthur Wong, instructed by Messrs Huen & Partners, for the 15^th Defendant