Lam Sik Ying v. Lam Sik Shi and Another

HCMP 938/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 938 OF 2013

(ON AN INTENDED APPEAL FROM HCA 4713 OF 2001)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving decision of the court) :

Leave to appeal

1.The 1^st defendant applied to strike out the plaintiff’s claim on the grounds of want of prosecution and abuse of process.  Suffiad J refused the application.  The 1^st defendant now applies for leave to appeal.  We will deal with the application on paper.

2.The plaintiff is the administrator of the estate of his father (‘the deceased’) who died on 6 January 1983.  Letters of administration was granted to the plaintiff and his mother who was the widow of the deceased (‘the widow’) on 24 March 1999.  The widow died on 7 June 1999 and the plaintiff became the sole administrator.

3.The 1^st defendant is the half brother of the plaintiff.  Their father was the deceased. 

4.The following is the chronology of the steps taken in this action :

1)  The writ of action was issued on 1 November 2001.

2)  The 1^st defendant filed his defence on 10 July 2002.

3)  The reply was filed on 23 September 2002.

4)  On 18 June 2004 witness statements of the parties were exchanged.

5) By September 2004 the parties filed their checklists.

6) On 23 November 2004, an order by consent was made that the checklist hearing be adjourned sine die with liberty to restore.

7) No further steps were taken by the plaintiff in this action until 12 December 2008 when he filed a Notice of Intention to Proceed.

8) No steps were, however, taken and the plaintiff filed another Notice of Intention to Proceed on 15 December 2009.

9) On 25 March 2010, the plaintiff filed his Particulars of Damages.

10) 16 July 2010 the plaintiff applied for a mareva injunction against the 1^st defendant in respect of the sale proceeds of a property belonging to the estate. Recorder Yu granted the injunction.

11) The present application to strike out was issued by the 1^st defendant on 8 March 2012.

Delay

5.The 1^st defendant relied on both pre-writ and post-writ delay.  The Judge rejected the argument that there was any pre-writ delay.  Despite the death of the deceased in January 1983, the letters of administration was only granted in March 1999.  The delay, however, was contributed by the 1^st defendant’s challenge to the capacity of the plaintiff and the widow to apply for the letters of administration.  He commenced an administration action (HCA 1885/1987) against them which was only settled on 13 April 1992.  Thereafter the application for the letters of administration went ahead which was eventually granted in 1999.  The Judge further rejected arguments that the plaintiff could have instituted proceedings prior to the letters of administration.

6.As to post-writ delay, the Judge recognized that there were delays but he held that the 1^st defendant had not shown that he was prejudiced by the delay nor there was abuse of process on the part of the plaintiff.

Proposed grounds of appeal

7.The proposed grounds of appeals are :

1)  The Judge erred in holding that the 1^st defendant had not been prejudiced by reason of the death of two potential witnesses; the inability to locate other potential witnesses and documents due to the lapse of time and the plaintiff’s own admission that he has suffered memory loss and prejudiced by loss of witnesses and documents.

2)  The Judge erred in holding that there was no abuse when the plaintiff had indicated that he would amend the Statement of Claim and he had applied for a mareva injunction instead of proceeding to trial.

3)  The Judge erred in failing to adequately to consider periods of pre-writ delay.

Our view

8.Striking out is a discretionary remedy.  The Judge was guided by the Court of Final Appeal’s judgment in The Liquidator of Wing Fai Construction Co Ltd v Yip Kwong Robert and Ors [2012] 1 HKLRD 589 on striking out for want of prosecution and abuse of process.

9.In terms of prejudice, the Judge had properly analyzed the issue relating to the unavailability of witnesses.  One of them died two years after the issuance of the writ.  Irrespective of delay, this witness could not have been called by the 1^st defendant.  Another potential witness who died in the last few years was not even considered to be a witness for the 1^st defendant when the parties exchanged their witness statements.  While there are other witnesses available, the 1^st defendant has not provided any other witness statements from them.

10.The Judge also took into account the fact that the 1^st defendant had also commenced actions against the plaintiff claiming damages for intermeddling with the estate.  He considered the parties’ respective claims are ‘intrinsically linked’ and it is only fair that the plaintiff’s action should be heard by the Court in the same way as the other actions despite the imperfections to the evidence caused by the delay.

11.In respect of abuse, the plaintiff had informed the Judge through counsel that there will be no amendments to his pleading.  Further, there was obviously a proper basis for applying for the mareva injunction otherwise it would not have been granted.

12.In terms of pre-writ delay, the Judge had properly identified the cause of delay.

13.All in all the 1^st defendant has not been able to identify any error in law or exercise of erroneous discretion in the Judge’s decision.  We are not satisfied that the 1^st defendant has any reasonable prospect of success in his intended appeal.  Accordingly leave is refused with costs to the plaintiff.

14.We will further order pursuant to Order 59, Rule 2A(8) that the 1^st defendant is precluded from applying for an oral hearing to reconsider his application.