Chan Mo Ging v. Leung Fong Kiu

DCCJ 2776/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2776 OF 2010

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Coram: Deputy District Judge J. Wong in Chambers (Open to Public)

Date of Hearing: 6 January 2011

Date of Decision: 26 January 2011

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DECISION

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Introduction

1.This is an appeal against the decision of Master when he refused the Defendant’s application for adjournment and granted summary judgment for the Plaintiff.  By this present appeal, this Court was also asked to appoint the elder brother of the Defendant as his guardian ad litem herein.

Background

2.On 13 August 2010, the Plaintiff commenced the present proceedings against the Defendant to recover possession of the subject premises known as 12^th Floor, Siu On Mansion, No. 185 Hennessy Road, Hong Kong (“the Premises”), mense profits, and so forth.

3.The Plaintiff’s action was based on expiry of tenancy.

4.It was said that, as early as in 1965, by a tenancy agreement, the then owner of the Premises let the Premises to Mr. Leung Sun (“Mr. Leung”). Ownership of the Premises was passed through a number of persons and ultimately, in 1995, by an Assent, the Plaintiff has become the registered owner.

5.In about 2002, the Plaintiff was informed of the pass away of Mr. Leung by his son, i.e. the Defendant.  He has thereafter paid rent to the Plaintiff.  Rent thereof was adjusted a number of times over the years.

6.On 28 July 2009, the Plaintiff served a notice of termination on the Defendant. He also confirmed the receipt of it by counter-signing of the document.

“To: Leung Sun/Leung Fong Kiu (租客)

Premises: 185 Hennessy Road, 12^th Floor, Wanchai, Hong Kong

Pursuant to section 5(2) of the above Ordinance, I hereby notify you that the tenancy of the above premises will be terminated on 31 July 2010.

Date: 28 July 2009

7.About one year later, on 23 July 2010, the Plaintiff instructed her solicitor to demand for delivery of vacant possession of the Premises on 30 July 2010.  The Defendant did not do so and on 13 August 2010, the present proceedings were instituted.

8.The Defendant acknowledged service of the proceedings and indicated that he was contesting the proceedings.  He also said that he was applying for legal aid.

9.After the statutory 42 days’ stay, on 12 October 2010, the Plaintiff applied for summary judgment.  The Master heard the same on 29 October 2010.  Mr. Leung appeared in person at the hearing.  He did not file any affidavit in opposition. However, his elder brother Mr. Leung Fong Chee did so.  He deposed, inter alia, that:

“3. The Defendant has been a patient for Schizophrenia under the care of the Department of Psychiatry at the Pamela Youde Nethersole Eastern Hospital since 1998 and he is still receiving medical treatments regularly from the same hospital today. He was found to have the onset of mental illness as far back as 1978.

4. The Defendant left his last employment around mid-1992 and since then, he has remained unemployed and has been relying on public assistance (CSSA) and family help to support himself and to meet his living expenses.

5. It is therefore doubtful that the Defendant has the mental capacity and financial means to meet litigation on his own, and as such, the Defendant has taken steps to seek legal assistance from the Department of Legal Aid. His application was formally lodged on 24 August, 2010, however a feedback is still outstanding. It is my understanding that the Department of Legal Aid is now obtaining a full medical report on the Defendant from his doctors.

6. In view of the foregoing and also taking into consideration of the otherwise long-term tenancy relationship between the Defendant and the Plaintiff spanning 45 years, my niece and I have made separate attempts on 16 August, 2010 to talk to the Plaintiff’s legal representative Mr. Ng Kin Yuen and her son Mr. Ng with a view to settling the matter amicably (without having to go to court) but our efforts were in vain.

7. In the premises, I humbly request this Honourable Court to adjourn the case for at least three months or until such time that legal representation would be granted to the Defendant by the Department of Legal Aid, and failing which, the Defendant would need sufficient time and/or other forms of assistances to help him properly preparing his Defence.

8. In the premises, taking into consideration that the Defendant is a mental patient as well as a CSSA recipient, I humbly ask this Honourable Court not to make any order to the effect that the Defendant would fall into immediately hardship with his accommodation needs. I undertake that the Defendant will continue to promptly pay his monthly rent of HK$6,600 in the meantime until a final settlement is reached.”

10.To sum up, the Defendant did not raise any substantive defence but his brother asked for an adjournment of 3 months because the former was a mental patient and lived on CSSA only.

11.The Master did not accede to the request. He went on to hear the application and granted summary judgment to the Plaintiff with costs summarily assessed.

12.Legal aid was later granted to the Defendant’s brother for the Defendant, which led to the present appeal and application.

13.Parties appeared before me on 6 January 2011.  The Plaintiff was represented by Mr. Herbert Au-Yeung of Counsel, and the Defendant Mr. Tang of Messrs Christine M. Koo & Ip.  Having heard from them, I reserved my decision to be handed down. In the meantime, I also granted an interim stay of execution. 

Ruling

14.After thought, I have decided to dismiss the appeal.  I say so for the following reasons.

15.Parties have put forward a number of arguments on the correctness of the master’s decision, admissibility of the new evidence before me, the definition of a mentally incapacitated person (“MIP”) under O.80 of the Rules of District Court (“RDC”) and so forth.  However, irrespective of my ruling on these arguments, the ultimate question to be answered is: whether the Defendant or his intended guardian ad litem can raise a triable issue or some other reasons for trial.

Triable issue or some other reason for trial?

16.As from time to time, I have taken the view that the legal principles relating to summary judgment are clear.  To sum up them for the present purpose, the underlying policy of order 14 application is to prevent the defendant from delaying the plaintiff to obtain judgment in case where the defendant clearly has no defence.  Facing such application, the Court asks 2 questions:-

(a) Factually, is what the defendant says believable in light of the undisputed or indisputable circumstances?  In so doing the court is entitled to take into account the commercial reality as well as contemporaneous documents.  However, mini-trial on affidavit evidence shall not be embarked.  Bare assertion is sufficient and the defendant must condescend upon particulars.

(b) Legally, if what the defendant says is believable, does it amount to an arguable defence in law?

17.So, assuming for the time being that I would allow the new evidence and the appointment application, could the Defendant and/or his brother discharge the duty?

18.I do not consider that I can be satisfied.

19.As pointed by Mr. Au-Yeung in paragraph 40 of his

“Notwithstanding the very lengthy references made to the Landlord and Tenant (Consolidation) Ordinance and the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004 in paragraphs 16 to 21 of the Defendant’s skeleton submission, the defence raised is simply this: It is alleged that the Defendant’s mother instead of the Defence himself was the tenant of the Premises and therefore it is said that the Notice of Termination should have been served on the Defendant’s mother instead.”

I find the Defence unbelievable in the circumstances.

20.Mr. Au-Yeung helpfully summed up his analysis in eight points.  I respectfully adopt them and further simplify them by 3.

(a) After the pass away of Mr. Leung, the Defendant has been the tenant of the Premises for almost 20 years.  He paid the rent.  He took up all matters about the tenancy, including the rental increments and reduction over the years.  He acknowledged receipt of the said notice of termination.  All these facts are well supported by the contemporaneous documents.

(b) Mr. Leung’s wife is by now at her age of 99 years.  At no time throughout the tenancy and the present proceedings until the filing of the new evidence, there has been a single suggestion that she was the tenant.  Apart from bare assertions, there is no single piece of evidence to collaborate such proposition, not even a word from the senior lady herself.

(c) The intended guardian ad litem also deposed in the new evidence, his 2^nd affirmation, that “the late [landlord] raised no objection that [his] mother … to take up the tenancy …..”  However, as observed by Mr. Au-Yeung, such assertion simply came from nowhere and it is also a classic failure of condescending upon particulars.

21.Having said the above, I have dealt with the substance of the application. Nonetheless, as parties did spend time arguing some preliminary matters, for completeness sake, they are also briefly dealt with.

Appeal from Master: hearing de novo

22.An appeal of a Master’s decision before a Judge is by nature a hearing de novo. It is therefore pointless to spend effort arguing the correctness and/or incorrectness of the original ruling.  It suffices for me to conclude that, facing the evidence before him, the Master correctly refused the application for adjournment for 3 months, and proceeded to deal with the matter substantively. 

New evidence

23.The new CJR has come into operation for about 2 years.  O. 58 r. 1(4) RDC states clearly that:

“No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”

Useful guidance can also be derived from Chan Yan v. Chan Calvin and another (HCA 666/2007, unreported, 15 May 2009) when Saknrani J. held that:

“19. By the amendments to O. 58 r. 1 RHC no further evidence may be received on the hearing of an appeal except on special grounds (r. 1(5)). It was submitted that the Ladd v Marshall [1964] 1 WLR 1849 conditions had not been fulfilled and that the evidence should not be admitted. The Ladd v Marshall conditions are:

(1) that the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(3) the evidence must be such as is presumably to be believed.

20. I would observe that in Langdale v Danby [1983] 1 WLR 1123 when dealing with the Ladd v Marshall conditions in an appeal from a summary judgment, Lord Bridge said at page 1133:

‘In the situation arising on an appeal to the Court of Appeal from a summary judgment, the application of these conditions and perhaps the conditions themselves will require some modification.  It may well be that the standard of diligence required of a defendant preparing his case in opposition to a summons for summary judgment, especially if under pressure of time, will not be so high as that required in preparing for trial. The second and third conditions will no doubt be satisfied if the further evidence tendered is sufficient, according to the ordinary principles applied on applications for summary judgment, to raise a triable issue.’”

24.With the above principles in mind, I will decline to allow the new evidence to come in.

(a)   All the new evidence came from the intended guardian ad litem and family members of the Defendant.  The substance of their case is that the Defendant’s mother is the real tenant for years.  I see no reason why they could not have been obtained with reasonable diligence for use at the hearing before the Master, unless it is an “after thought” as suggested by Mr. Au-Yeung.

(b)  I have given my view that the new evidence is incredible and see no point of admitting them.

(c)    Parties also disputed as to the fact that Mr. Tang did not take out a formal summons together with supporting affidavit.  In turn, Mr. Tang argued that the Plaintiff’s solicitors did not raise any objection and had included them into the Agreed Bundle.  My view is that, upon considering all relevant matters, including the need to take out proper application as well as real prejudice suffered by the parties, I would have allowed the new evidence to come in if this was the only argument between the parties.

Appointment of guardian ad litem

25.Finally, as to the argument on the appointment of the intended guardian ad litem, Mr. Au-Yeung told this Court that the medical evidence adduced did not support the definition of a MIP within O.80.  Mr. Tang argued otherwise.  Upon thought, I will still allow such application although it does not prevent the entering of the summary judgment for the Plaintiff.

(a) A MIP means “… a person, by reason of mental disorder or mental handicap, … is incapable of managing and administering his properties and affairs (s. 80 r.1 RDC).

(b) The medical evidence adduced herein contained:

“… Mr. Leung has been suffering from Schizophrenia for more than 30 years, and he has been unemployed since 1992. Despite his reporting of no active psychotic symptoms for years, he is likely to have impairment in occupational functioning, and gradual decline in cognitive functions, e.g. memory and judgment. Mr. Leung is still able to maintain basic self-care, however, when he encounters unexpected events or complicated issues, he might not be able to handle and assistance and guidance would be needed. He has limited capacity of managing and administering his property and affairs, especially when the issue is complicated and he would need clear explanation and guidance. He is mentally not fit to give instructions in legal proceedings …”

(Report of Dr. Chan Ka Po dated 15 October 2010)

(c) We look at the “substance” of the matter, rather than the form.  While Dr. Chan only employed the wording of “limited capacity”, he clearly wrote down “not fit to give instructions in legal proceedings”.  Mental capacity rests on a sliding scale.  When a person can handle day-to-day affairs, including going to supermarket to buy groceries, he may not be able to handle complicated affairs, like litigation.  The definition as per O.80 r.1 RDC refers to “properties and affairs”, it must include the reference of proceedings by implication.

(d) Parties did spend some time on the authority of Ho Po Chu v Tung Chee Wah & Others [2001] 3 HKLRD 553.  It suffices for me to conclude that the Court should adopt a flexible approach to the evidence of mental incapacity under O.80 and consider all relevant factors, including the consequences or implication of the order made, as well as whether the appointment is for the benefit of the MIP.

(e) Although I have decided to uphold the summary judgment for the Plaintiff, it does not render the appointment wholly academic as it is still possible that the matter could be taken further, or perhaps at least, for extension of time for execution. 

(f) However, the guardian ad litem should keep in mind that he must act by a solicitor O.80 r. 2(3) RDC.  If legal aid will at a later date be discharged for whatever reason, he cannot conduct the proceedings without any legal representation.

Conclusion

26.To conclude, I will make the following orders:

(a)   Leung Fong Keung is appointed as the Defendant’s guardian ad litem in handling all matters related to the legal proceedings in this action.

(b)  The appeal against the Order of Master K.K. Pang dated 29 October 2010 herein giving judgment to the Plaintiff is dismissed.

(c)    The interim stay of execution granted on 6 January 2011 in relation to the said judgment is hereby uplifted.

(d)  This is an order nisi that the Plaintiff shall pay costs of the appeal, including Counsel’s Certificate for hearing on 6 January 2011, to be summarily assessed by me (0.5 hour reserved), failing agreement of quantum by the parties within 21 days from the date hereof.

Mr. Herbert Au-Yeung, instructed by M/S Liu, Chan & Lam, for the Plaintiff

Mr. Tang Tsz Pun, of M/S Christine M. Koo & Ip, for the Defendant

Defendant's appeal to Court of Appeal dismissed. Please refer to CACV94/2011 dated 8 November 2011