Jora Sisi Omar v. Jora Harmidar Omar

HCAP19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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D E C I S I O N

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I. Background

1.On 26 July 2011, the plaintiff commenced the present action against the defendant in respect of the estate of Omar Abdool Kadar, deceased (“Deceased”).

2.The Deceased and Madam Harmidar Ng Yuk (“Madam Ng”) celebrated their marriage at a mosque in Hong Kong on 19 April 1944 (“Marriage”). The defendant was born on 7 April 1951, but she was not the natural daughter of the Deceased or Madam Ng.  Since 17 January 1952, she had been living with them.  By an adoption order dated 19 April 1960 (“Adoption Order”), the Deceased and Madam Ng adopted her as their daughter (“Adoption”).

3.In/about 1954, the Deceased had a relationship with a Madam Wong Miu Mee (“Madam Wong”).  She bore him three children including the plaintiff.

4.Upon the registration of the United Co-operative Building Society Limited (“Society”) in 1957, the Deceased was registered as a member, and the Society conferred on him as a member the exclusive right and possession of 3/F, 170 Sai Wan Ho Street, Hong Kong (“Property”), which is the subject matter of dispute in the present action.

5.Sections 17 and 21 of the Co-operative Societies Ordinance Cap 33 (“Ordinance”) provide that:

“17. (1) On the death of a member, a registered society may transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such persons as may appear to the committee to be the heir or legal representative of the deceased member, or may pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member’s share or interest, as ascertained in accordance with the rules or by-laws:

Provided that-

(a) in the case of a society with unlimited liability such nominee, heir or legal representative, as the case may be, may require payment by the society of the value of the share or interest of the deceased member ascertained as aforesaid;

(b) in the case of a society with limited liability, the society may transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and by-laws for membership of the society, or on his application within six months of the death of the deceased member to any person specified in the application who is so qualified.

(2) A registered society shall pay all other moneys due to the deceased member from the society to such nominee, heir or legal representative, as the case may be.

(3) All transfers and payments made by a registered society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person

……

21. In order to be qualified for membership of a co-operative society a person, other than a registered society, must-

(a) have attained the age of 18 years;

(b)    be resident within or in occupation of land within the society’s area of operations as described by the by-laws.”

6.Under clause 7 of the By-Laws of the Society, a member may nominate in writing either the spouse or parent or descendant to be his beneficial successor in the event of his dying or becoming a lunatic.

7.By a nomination in writing dated 12 May 1960, the Deceased nominated Madam Ng to be his beneficial successor to his membership of the Society (“1960 Nomination”).  After the Deceased died in 1977, pursuant to the 1960 Nomination, Madam Ng succeeded the membership of the Deceased with the Society, and she was so registered in 1978.

8.On 2 January 1979, Madam Ng nominated the defendant as her beneficial successor to her membership with the Society (“1979 Nomination”).  The Society was dissolved on 12 March 1998.  Madam Ng passed away on 25 April 1998.

9.The plaintiff had been residing at the Property since 1960.  On 26 July 2011, she commenced the present action against the defendant.  In her Statement of Claim (“SoC”), she contended inter alia that:

(a) Madam Wong is the lawful wife and relict of the Deceased, and the plaintiff and her two siblings are the lawful and natural children of the Deceased.

(b) Madam Wong and the Deceased celebrated a modern marriage in 1954.  Alternatively, Madam Wong is a lawful concubine of the Deceased.  But even if Madam Wong and the Deceased were not lawfully married, their natural children (including the plaintiff) are legitimate children of the Deceased.

(c) When the Deceased passed away in 1997, Madam Ng, Madam Wong, the defendant, the plaintiff and her siblings were entitled to his estate, but Madam Ng passed away in 1998 and Madam Ng renounced her right.

(d) The plaintiff, who resided/resides at the Property, is entitled to succeed to the estate of the Deceased, derived from his membership with the Society, in her capacity as his heir, descendant and/or legal representative.

(e) By reason of various matters, the Marriage, being an Islamic marriage, was invalid.  Since the Marriage was invalid, Madam Ng was not the Deceased’s spouse, and the 1960 Nomination was therefore invalid. Madam Ng should not have been registered as a member of the Society in 1978.

(f) Because Madam Ng was not the Deceased’s spouse, they could not have satisfied the statutory requirement in section 5(2) of the Adoption Ordinance Cap 290, ie the adoptive parents must be two spouses.  Hence, the Adoption was invalid.

(g) Since the Adoption was invalid, the defendant was not Madam Ng’s adopted daughter legally, so the 1979 Nomination was invalid.

(h) The defendant concealed the existence of Madam Wong and her children, and made a false declaration that she resided at the Property.  In fact, she emigrated to Canada in 1973 and had never resided at the Property, so she did not satisfy the live-in requirement under section 21 of the Ordinance to qualify as a member of the Society.

(i) The plaintiff reserved her right to claim adverse possession as a result of her competing claim and actual occupation of the Property since 1960.  Since she occupied/occupies the Property, she has a better right than the defendant to the Property.

The plaintiff sought inter alia a declaration that the Marriage and the Adoption were invalid, and an order that letters of administration in respect of the Deceased’s estate be granted to her with consequential reliefs and costs.

10.On 14 February 2012, the defendant filed her Defence and Counterclaim (“D&C”), and contended inter alia that:

(a) The defendant had not been residing at the Property since 20 July 1973, and the plaintiff had been residing at the Property as the licensee of the Deceased and the successors to his membership of the Society.  The defendant denied the plaintiff had any right of claim on the basis of adverse possession.

(b) Latest by 19 April 1944, Madam Ng had converted to Islam.  The Marriage was entered into in accordance with the personal laws of the Deceased and Madam Ng, ie the law of Islam, and it was a valid marriage.  Alternatively, between 1944 and 1977 the Deceased and Madam Ng lived together as man and wife under the same household at the Property, and the common law presumption of husband and wife applied.  The Adoption was therefore valid, and the Adoption Order was properly registered with the General Register Office on 30 April 1960.  Hence, the defendant being the lawful adopted daughter of the Deceased and Madam Ng was entitled to succeed to the estate of the Deceased as his issue, and the plaintiff had no locus to challenge the validity of the Marriage and/or the Adoption.  Alternatively, the plaintiff’s challenges were time-barred.

(c) Upon the death of the Deceased, Madam Ng was registered as a member of the Society by virtue of the 1960 Nomination, and had since been a member of the Society.  Such registration was regular and pursuant to the Ordinance.  Before Madam Ng passed away and the 1979 Nomination took effect, the Society was dissolved on 12 March 1998.  Upon the dissolution of the Society, the right to succeed to Madam Ng’s membership became a chose in action.  Upon Madam Ng’s death, such right became part of her intestate estate which only the defendant was entitled to succeed.  Further or alternatively, the plaintiff’s claim against the defendant was time-barred in any event.

(d) The defendant denied that Madam Wong is the lawful wife and relict of the Deceased or that she would be entitled to succeed to the estate of the Deceased.  The defendant further denied that Madam Wong had entered into any form of marriage in 1954 with the Deceased and/or had acquired her status as a concubine of the Deceased.

(e) The defendant denied there was any false declaration or fraudulent concealment of material facts.

Further, the defendant averred that the plaintiff was previously permitted by the Deceased, Madam Ng and the defendant to use and occupy the Property as her residence rent-free due to blood and family ties between the parties, but by service of the counterclaim the defendant revoked the plaintiff’s licence to use and occupy the Property.  The defendant counterclaimed for delivery up of vacant possession of the Property by the plaintiff within 30 days.

11.On 13 March 2012, the plaintiff filed a substantial Reply and Defence to Counterclaim (“R&DC”) that repeated what had been averred in the SoC and also set out other matters.

12.On 28 September 2012, the plaintiff applied by summons for summary disposal of the action pursuant to Orders 14 and 14A of the Rules of the High Court (“RHC”) (“28/9/12 Summons”).  On 5 October 2012, the defendant applied by summons to strike out of certain parts of the SoC and the R&DC (“5/10/12 Summons”).  On 30 October 2012, the plaintiff applied by summons to strike out certain parts of the D&C (“30/10/12 Summons”).

13.On 15 November 2012, Master Levy adjourned the 28/9/12, 5/10/12 and 30/10/12 Summonses (collectively, “Three Summonses”) to be heard by Poon J.

14.The hearing of the Three Summonses came before Poon J on 12 March 2013.  By his written decision handed down on 25 March 2013 (“Decision”), the learned judge (a) found in favour of the defendant in respect of the 5/10/12 Summons and struck out parts of the SoC and R&DC, (b) dismissed the 28/9/12 and 30/10/12 Summonses, and (c) ordered that the plaintiff do pay forthwith costs of the Three Summonses including all costs reserved to be taxed if not agreed (“1^st Cost Order”) (“25/3/13 Order”).

15.On 2 April 2013, the Director of Legal Aid (“DLA”) filed a Memorandum of Notification of an Application for Legal Aid (“LA Application Memo”) advising that the plaintiff had applied for legal aid.

16.On 23 May 2013, the DLA filed a LA Application Memo advising that the plaintiff had applied for legal aid.

17.On 6 June 2013, the plaintiff applied by summons for stay of execution of the 25/3/13 Order pending determination of the plaintiff’s application for leave to appeal against such order to the Court of Appeal (“CA”) and, if leave was granted, pending the determination of the appeal (“Stay Summons”).  On 30 October 2013, the Stay Summons was dismissed by Poon J, and the plaintiff was ordered to pay costs of the application forthwith to be taxed if not agreed (“2^nd Cost Order”) (“30/10/13 Order”).  On the same day, the learned judge also delivered oral reasons for the 30/10/13 Order (“Judgment”).

18.On 4 November 2013, the DLA filed a LA Application Memo advising that the plaintiff had applied for legal aid to prosecute an appeal against the 30/10/13 Order.  On 2 and 6 January 2014 respectively, the DLA filed Memorandum of Notification that a Party Has Been Refused Legal Aid in respect of plaintiff’s applications for legal aid for the proceedings and for prosecution of an appeal against the 30/10/13 Order.  On 9 January 2014, legal aid was granted in favour of the plaintiff as from that date.

19.On 13 January 2014, the plaintiff (acting in person) applied by summons for “stay of taxation upon appeal against [the 25/3/13 and 30/10/13 Orders] on the ground that counsel opinions have been sought with merits found” (“Summons”).  On the same day, the plaintiff filed her affirmation in support (“Affirmation”).

20.On 16 January 2014, the assigned solicitors Messrs Pang, Wan & Choi filed Notice to Act on behalf of the plaintiff.

21.On 23 January 2014, Master Levy refused the plaintiff’s Summons for stay of taxation, and ordered the plaintiff to pay costs of the Summons to the defendant summarily assessed at $51,500 to be paid forthwith (“Master Order”).

22.On 6 February 2014, the plaintiff filed her Notice of Appeal against the Master Order (“Appeal”).  The Appeal was heard before me on 29 April 2013 (“Hearing”).

II.  Preliminary matters

23.The plaintiff’s legal aid certificate did not extend to cover the prosecution of the Summons and the Appeal, and hence the plaintiff was unrepresented at the hearing before Master Levy on 23 January 2014 and at the Hearing.  It is also apparent from the plaintiff’s written submissions that she had applied for legal aid (which had not been granted by the time of the Hearing) for an appeal against the 25/3/13 and 31/10/13 Orders.

24.By her written submissions and at the Hearing, the plaintiff complained about late service of the supplemental hearing bundle by the defendant’s solicitors, and their failure to serve their written skeleton submissions that had been lodged with the court.

25.Pursuant to Practice Direction 5.4,[1] the hearing bundle for the Hearing should have been prepared and lodged/served by the plaintiff.  The plaintiff did not lodge/serve any hearing bundle, and the supplemental hearing bundle was lodged/served by the defendant to facilitate the Hearing.  In any event, the supplemental hearing bundle comprised documents which had been previously filed in the present action and known to the plaintiff.  The plaintiff was also able to lodge written submissions in respect of those documents prior to the Hearing.  I am unable to discern any prejudice as a result of any late service of the supplemental hearing bundle as alleged by the plaintiff.  However, it would have been helpful if copies of the Summons and Affirmation were also included in the hearing bundle.

26.The plaintiff also alleged that the defendant’s solicitors had failed to serve their written skeleton submissions for the Appeal, but Ms Ho, solicitor for the defendant, disagreed.  There was no need to resolve this dispute as it was overcome by Ms Ho confirming she would rely on her oral submissions at the Hearing.

III.  Master’s appeal

27.It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.

IV.  No appeal against the 25/3/13 and 30/10/13 Orders

28.Since the 25/3/13 Order was an interlocutory order, leave to appeal is required.[2]  Order 59 rule 2B(1)(a) and (2) of the RHC provide that:

“(1) Subject to paragraph (4) and any other enactment, an application for leave to appeal against –

(a) an interlocutory judgment or order of the Court;

……

may only be made to the Court in the first instance within 14 days from the date of the judgment or order.

(2) So far as is practicable, the application must be made to the judge …… against whose judgment or order leave to appeal is sought.”

Order 59 rule 2B(4) of the RHC provides that “[if] the [CA] allows, the application may be made direct to the [CA] within 14 days from the date of the judgment or order”, but as explained in Hong Kong Civil Procedure 2014 Vol 1 para 59/2B/2 at pp 1050-1051,

“…… Whilst O.59, r.2B(4) permits an application to be made to the [CA] directly, para.13 of Practice Direction 4.1 – Civil Appeals to the [CA] dated February 12, 2009 directs that such an application should be made in good time so that where the [CA] refuses to entertain the application, an application can timeously be made to the court below. The Practice Direction does not seem to envisage a party to apply under O.59, r.2B(4) for leave directly from the [CA] should he fail to apply for leave to appeal from the Court below within the specified time.”

29.This means that any application for leave to appeal against the 25/3/13 Order should have been brought to be heard by Poon J.  But the 14‑day time limit under Order 59 rule 2B(1) of the RHC to obtain leave in the first instance from the learned judge had long expired. [3] The further 14‑day time limit under Order 59 rule 2B(3) of the RHC for the application to be made to the CA after refusal in the first instance had also long expired.  A direct application (with the approval of the CA) to the CA within 14 days of the 25/3/13 Order under Order 59 rule 2B(4) had likewise expired.  Yet up till now the plaintiff had not made (a) any application for leave to appeal against the 25/3/13 Order to either Poon J or the CA, or (b) any application to the CA for extension of time for appeal against such order.

30.However, the plaintiff all along was well aware of her right to seek leave to appeal against the 25/3/13 Order (including the 1^st Cost Order) or, indeed, her need to seek such leave if she wished to overturn such order.  First, by the Stay Summons, the plaintiff had applied for stay of execution of the 25/3/13 Order (including the 1^st Cost Order) pending determination of her application for leave to appeal against such order to the CA, and if leave was granted, pending determination of the appeal.  Secondly, Poon J in paragraph 2 of the Judgment held that by then (ie 30 October 2013) the plaintiff still had not made any application for leave to appeal against the 25/3/13 Order, and any application for stay in the absence of a pending appeal could not be supported.

31.By now, the plaintiff is more than 10 months out of time in respect of any application for leave to appeal against the 25/3/13 Order.[4]  The court below has no power to grant extension of time for leave to appeal against such order.[5] But to date, the plaintiff had yet to make any application to the CA for such extension of time.

32.Likewise, for the 30/10/13 Order (including the 2^nd Cost Order), there is to date no application for leave to appeal against such order despite lapse of the prescribed time for such purpose (and by now the plaintiff is more than 5 months out of time)[6] and/or no application for extension of time to do so.

33.The fact there is no pending application for extension of time for leave to appeal against the 25/3/13 and 30/10/13 Orders and/or any undertaking by the plaintiff to forthwith issue such application would be fatal to the Summons which sought stay of the taxation proceedings “upon appeal against [the 25/3/13 and 30/10/13 Orders]”.  Even if there were merits in respect of any potential appeal against such orders (which I disagree), it would be irrelevant if there was in fact no appeal.  In the absence of any application for extension of time for leave to appeal against such orders (let alone any pending substantive appeal), it is unnecessary to consider the merits of any potential appeal for the purpose of the Summons.  As Chung J said in Re HY & HT Lee Brothers & Company Limited (which concerned an application for stay of taxation of the respondents’ costs or alternatively stay of execution of the taxed costs pending the outcome of pending appeals to the CA in CACV307/1999 and CACV328/1999),[7] “…… if in fact no appeal is intended to be brought against the costs orders, there would simply be no valid reason to ask for a stay”.[8]

34.This is also borne out by Order 59 rule 13(1)(a) of the RHC, which provides that “[except] so far as the court below or the [CA] or a single judge may otherwise direct – (a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below; ……” Chung J in Re HY & HT Lee Brothers & Company Limited held that Order 59 rule 13 of the RHC applied to an application for stay of taxation pending appeal against the interlocutory order, and “[even] if that rule does not apply, the Court should adopt principles applicable thereunder when determining these applications”.[9]  Plainly, Order 59 rule 13(1)(a) of the RHC contemplates that there is in fact a pending appeal against the interlocutory order, but here there is no application for extension of time to apply for leave to appeal against the 25/3/13 and 30/10/13 Orders let alone any pending substantive appeal against such orders.

35.In my view, this is enough to dismiss the Appeal. But in case I am wrong, I will assume that intention to appeal is sufficient (but I disagree), and go further to consider the legal principles for stay of taxation.

V.  Stay of taxation

36.It is plain from Order 59 rule 13 of the RHC that the jurisdiction to grant stay of execution of an interlocutory order rests with the court below (ie Poon J in the present case) and/or the CA, and not with the taxing master whose duty is to tax the bill and not to determine liability.  In the circumstances, even if there is a pending appeal against an interlocutory order (of which there is none in the present case), it is not a ground for the taxing master to stay taxation of costs pending such appeal in the absence of a stay of execution by the judge granting such interlocutory order and/or by the CA. [10]

37.Indeed, it is not even a sufficient ground for adjourning the taxation of costs under Order 62 rule 26(1) of the RHC, which provides that “[the] taxing master by whom any taxation proceedings are being conducted may, if he thinks it necessary to do so, adjourn those proceedings from time to time”.  As explained by DHCJ To (as he then was) in Plus Lucky Limited v Chin Yuk Lun Francis & anor,[11] an application to adjourn the taxation hearing to a date after a pending appeal against an interlocutory order on the basis that (a) the appellant thought he/she had good grounds of appeal based on counsel’s advice and/or (b) the costs of taxation would be wasted if his/her appeal should succeed was in fact a disguise for an application to stay taxation pending appeal, and it was “not an adjournment for the expedient and efficient disposal of the taxation” permitted under Order 62 rule 26 of the RHC.  The learned judge rejected submissions that “the adjournment was not in effect an application for stay of execution.  The taxing master has no jurisdiction to adjourn the taxation hearing pending appeal under Order 62, rule 26(1) of the RHC ……”

38.This is borne out by the authorities.  In Re Schindler (Hong Kong) Ltd & ors,[12] Kaplan J refused an order for consolidation and ordered D to pay S’ costs of the application.  D appealed against the order, and such appeal was due to be heard.  S obtained an appointment for taxation of their costs pursuant to the order.  The master adjourned the

taxation sine die until after the appeal had been disposed of.  Kaplan J noted “the fact remains that the appeal does not act as a stay of the order and no application for a stay was made to me or to the Court of Appeal” (my emphasis).  The learned judge held that it would be an improper exercise of discretion for the master to adjourn the taxation which in effect operated as a stay of execution of his order.  He allowed the appeal and overturned the master’s decision to adjourn the taxation hearing on the basis of S’ undertaking not to enforce the cost order when taxed until after the determination of the appeal.

39.In Lo Wo & ors v Cheung Chan Ka Joseph & anor,[13] the 2^nd defendant lodged notice of appeal to the CA against a judgment and costs order in favour of the plaintiff, and applied to the master to stay the taxation hearing because of the appeal.  Waung J held that the master rightly dismissed the application “because, as is well-known, an appeal normally does not operate as a stay and the court does not easily deprive a successful litigant from the fruit of the judgment.  In fact there was, earlier on 9 June 2000, an application by counsel for the 2^nd defendant for a stay of enforcement of the judgment which [the learned judge] refused” (my emphasis).  The master proceeded with the taxation and when it was not completed he adjourned to date after the hearing of the appeal.  Waung J held that:

“…… It seems to me that the master was entirely wrong in that order because by so doing, he was in fact granting a stay of the taxation hearing or depriving the plaintiffs the right to the normal taxation hearing which follow an order for costs. Whether one calls the order bad on the basis of lack of jurisdiction because he has no jurisdiction to grant the stay or wrongful exercise of discretion, seems to me does not matter here very much. It was the wrong order to make and he should not have made it. He should simply order the date to be adjourned to the earliest possible date to be fixed, so that the taxation can be completed. It seems to me that he was persuaded, whether by the difficulty of the taxation or by other matters, to make the erroneous order.” (my emphasis)

40.In Plus Lucky Limited, the defendants appealed against the order of Master Bharwaney (as he then was) adjourning taxation proceedings pending the hearing and determination of the respondent’s appeal against the order of DHCJ Woolley dated 12 July 2002 ordering her to pay the defendants’ costs in the action that was instituted by the plaintiff.  DHCJ To (as he then was) held that:

“11. The taxing master’s duty is to tax the bill of costs. His role is to assess the quantum of costs and not to determine liability which is a matter for the trial judge. The discretion to adjourn the taxation proceedings may only be exercised if he thinks it necessary to do so i.e. to do so for the expedient and efficient disposal of the taxation. Hence, to adjourn taxation proceedings pending appeal solely for the purpose that in the event that the appeal is allowed, the taxation proceedings can be dispensed with, clearly falls outside the realm of necessity within which the taxing master may exercise his discretion to adjourn the taxation proceedings. To hold otherwise would be to give the taxing master the jurisdiction to grant stay of execution, a power which has been reserved to the trial judge or the Court of Appeal under Order 59, rule 13 and which has never been intended to be delegated to a taxing master. For a taxing master to adjourn taxation proceedings pending appeal would amount to an usurpation of the trial judge’s or the Court of Appeal’s function to rule on applications for stay, if applied for; or would amount to a by-pass of the trial judge or the Court of Appeal, if no application has been made. Thus, in my view, a taxing master has no jurisdiction under Order 62, rule 26(2) to adjourn taxation proceedings which operates as a stay of execution pending appeal.” (my emphasis)

41.In summary, the above authorities highlight two matters.  First, there is necessarily a pending appeal against the interlocutory order (without which, in my view, there is no valid reason to ask for a stay).  Secondly, where there is no application to the judge who made the interlocutory order or to the CA for stay of execution of such order, or where such application for stay of execution has been dismissed, the taxing master has no jurisdiction (or should not exercise his/her discretion) to stay taxation proceedings pending appeal against such order.  Whilst the taxing master has power to adjourn the taxation proceedings under Order 62 rule 26 of the RHC, to do so for the purpose of awaiting the outcome of any pending appeal is a wrong exercise of discretion since it amounts to usurpation of the jurisdiction to stay execution which is reserved to the judge below or the CA and not delegated to the taxing master.

42.It has been suggested that the court has inherent jurisdiction to stay/adjourn a taxation hearing, but such jurisdiction has to be carefully exercised and only upon good cause being shown for the stay/adjournment.  “The burden of showing good cause rests squarely on the shoulders of the party seeking to stay the taxation hearing.  What constitutes a good cause has to be determined according to the particular circumstances of the case.  There can be no hard and fast rule.  Essentially, it involves balancing two principles: firstly, the principle that a successful litigant should not be deprived of the fruits of his litigation, and secondly, the principle that there must be justification for putting at risk the considerable time to be spent and the large amount of costs to be incurred on the taxation which would be wasted in the event that the appellant is successful on appeal.”[14]

43.As regards the first principle that the successful litigant should not be deprived of the fruits of his litigation, DHCJ To (as he then was) said that “[an] intending appellant who wishes to escape from the application of this general rule or who does not wish to put at risk the costs of taxation which may be wasted in the event of his successful appeal should apply to the [judge below] or to the [CA] for stay of execution pending appeal pursuant to Order 59, rule 13.  That rule gives the [judge below] or the [CA] the discretion to order a stay of execution and to impose terms on which a stay is ordered.  That is the first machinery an appellant should invoke to protect his interest.  ……” (my emphasis)[15]

44.As regards the second principle that the court should take procedural steps which will avoid the expenditure of unnecessary time and expense involved in an unnecessary taxation of costs, which principle is one of practicality, common sense and good case management, “…… it must be subject to the first principle which is concerned with more substantive legal principles such as the taxing master’s jurisdiction, the successful party’s right to the fruits of his success and the importance that a taxing master should not be allowed to usurp the function of the higher court to rule on applications for a stay” (my emphasis).[16]

45.DHCJ To (as he then was) held that in considering what constitutes good cause in light of the two principles, the merits of the appeal against the interlocutory order should be ventilated before the judge on an application for stay of execution and is clearly irrelevant to the consideration of whether there is good cause for adjourning/staying taxation proceedings pending appeal.  The proper approach has been set out in Plus Lucky Limited in which DHCJ To (as he then was) said:

“17. I agree with the view of Keith JA.[17] It is impracticable for a taxing master sitting on a taxation hearing to consider merits of a pending appeal. Nor is it practicable for a judge hearing an appeal from the master’s order to embark on such an exercise. I am not over emphasizing the superiority of the judge to the master. Putting the situation to the extreme, assuming that an appellant was unsuccessful in the [CA] and he obtained leave to appeal to the Court of Final Appeal in view of the amount of claim involved, it is not up to the taxing master to refuse to proceed with taxation because in his view the appellant has a strong and arguable case, that it is likely that the [CA] has erred, that the taxation proceedings involve excessive complexity and that it is likely that these costs of taxation will be wasted. These are matters which should be properly ventilated before the [CA] on an application for stay of execution. If the appellant does not see fit to apply for stay of execution, it is not for the taxing master to rush to his rescue. Based on the limited jurisdiction of a taxing master in a taxation hearing, merits of the appeal should be ignored by the master in considering whether to stay taxation hearing.

18. As this involves balancing the wasted costs on the one hand and the delay to the successful litigant kept out of his money on the other, the conduct of the parties, in particular the delay on the part of the appellant in prosecuting the appeal is a critical consideration. In Re HY & HT Lee Bros and Co Ltd, Keith JA indeed considered delay on the part of the appellant in prosecuting his appeal a critical factor. Given the limited jurisdiction a taxing master has in adjourning a taxation hearing as opposed to the wider jurisdiction of the trial judge or the [CA] in granting a stay of execution, I think the complexity of the taxation, the amount of time and costs involved in the taxation and the opposing party’s ability to pay the wasted costs are factors which may also be taken into account in the balancing exercise. The list of factors is not exhaustive. Much depends on the facts of the individual case. But merits of the appeal is clearly irrelevant. That should be ventilated before a judge on an application for stay of execution.” (my emphasis)

46.It is plain and obvious from the above legal principles that any stay/adjournment of taxation proceedings envisages a pending appeal against the interlocutory order without which there is no valid reason to contemplate any stay/adjournment of the taxation proceedings that are derived from the provision on costs in the interlocutory order.  The reference/reliance on Order 59 rule 13 of the RHC in the above authorities is apposite.  Here, there is no such appeal, and for reasons explained in Part IV above, the Appeal is liable to be dismissed, and it is unnecessary to consider the above legal principles.

47.But even if intention to appeal is sufficient and the above legal principles are applicable (which I disagree), by the Stay Summons the plaintiff had already applied to the court below (ie Poon J) in June 2013 for stay of execution of the 25/3/13 Order (including the 1^st Cost Order) pending determination of any application for leave to appeal against such order to the CA and, if leave was granted, pending the determination of the appeal.  Poon J dismissed such application by the 30/10/13 Order for the following reasons:

(a)  “…… 原告人直至今天仍沒有申請上訴許可針對[the 25/3/13 Order] 提出上訴。如果並無上訴許可申請，此暫緩執行命令的申請，看來是站不住腳”;

(b) “但無論如何，即使有上訴許可申請，法庭要考慮是否批准暫緩執行命令時，要考慮上訴理據是否充份，是否有合理的勝訴機會。聽過原告人口頭陳述，及看過她呈交的資料和陳詞，再考慮到[the 25/3/13 Order]和[the Decision]，本席認為原告人並沒有任何合理上訴的機會”;

(c)  “至於原告人提到的第二點理由，即如果不暫緩執行命令，上訴就會變成無意義，本席並不同意，因為現在餘下需要處理的主要是訟費問題而訟費的決定並不會影響到上訴或令上訴變成無意義。就算不暫緩執行命令，上訴仍可繼續進行，如果上訴庭不同意[the 25/3/13 Order]，將[the 25/3/13 Order]撤銷，即使沒有暫緩執行[the 25/3/13 Order]，這不會影響上訴，令上訴變成無意義”.

48.As a result, there is no stay of execution of the 25/3/13 Order (including the 1^st Cost Order).  In face of the dismissal of the Stay Summons, the plaintiff cannot try her luck again by attempting to stay taxation, which is nothing more than an attempt to bypass or a collateral attack against the 30/10/13 Order that had already dismissed the application for stay of execution of inter alia the 1^st Cost Order, and to date there is no application for extension of time to apply for leave to appeal against the 30/10/13 Order and/or no renewed application for stay of execution against the 25/3/13 Order to the CA by the plaintiff.  In such circumstances, it is not for the taxing master or this court upon the Appeal to consider the merits of any appeal against the 25/3/13 and 30/10/13 Orders, which had not even been made.

49.According to the Summons, the Affirmation and her written submissions, the plaintiff claimed that the DLA had obtained counsel’s opinion that affirmed the merits of her case.  But as DHCJ To (as he then was) said in Plus Lucky Limited, “…… [to] invoke the court’s inherent jurisdiction, the Respondent[18] has the burden of showing good cause for the stay.  The Respondent submitted that as advised by Senior Counsel, she has strong and arguable case on appeal and referred me to the six-page Supplementary Notice of Appeal.  The Supplementary Notice of Appeal demonstrates that this is not the appropriate venue for consideration of merits.  I wholly ignore merits of appeal”.[19] Plainly the merits of any potential appeal cannot constitute a good cause for any stay/adjournment of taxation proceedings (a) in the absence of a pending appeal, (b) in view of the dismissal of the application to stay execution of the 25/3/13 Order, and (c) in the absence of any application to stay execution of the 30/10/13 Order.

50.In respect of the argument that without a stay an appeal would be rendered nugatory, the supporting affirmation for the Summons gave no detail or evidential support for such contention.  The only real complaint that can be made about the matter proceeding to taxation is that time and costs would be wasted in the event that the plaintiff were be able to (a) obtain time extension to make application for leave to appeal against the 25/3/13 and 30/10/13 Orders, (b) obtain leave to appeal and (c) succeed in the appeal, but as explained by Poon J in the Judgment,[20] the loss in the value of costs or time expended on taxation proceedings would not render any appeal nugatory.  In any event, I have not been given details of the taxation proceedings apart from (a) a bare assertion that the taxation would be complex and (b) the costs/fees claimed by the defendant under the 1^st Cost Order were about $260,000.  The plaintiff did not address on the particulars of complexity of such taxation.  In my view, the taxation of the 1^st Cost Order that involved the Three Summonses for one substantive hearing before Poon J would not be complex, and with the 1^st Cost Order granted in March 2013 and the relevant bill lodged in mid-2013, there can be no doubt that the plaintiff had ample time to prepare for the taxation.

51.It has been suggested that since the defendant lives overseas, it would be difficult to recover any costs paid to her in case the plaintiff were be able to (a) obtain time extension to make application for leave to appeal against the 25/3/13 and 30/10/13 Orders, (b) obtain leave to appeal, and (c) succeed in the appeal.  The plaintiff in her written submissions suggested that the defendant had left behind some bad debts amounting to $45,000 which had been unpaid since, but such assertion is not supported by affirmation evidence or verified by documentary evidence.  More importantly, the plaintiff has chosen to sue the defendant who happens to live overseas, and if she is dissatisfied with any cost order made in favour of the defendant, it is incumbent upon her to make and progress any application for leave to appeal against such cost order with due expedition.

52.In my view, any difficulty that the plaintiff now faces is her own making in failing to seek leave to appeal against the 25/3/13 Order or to seek extension of time for such purpose (although she plainly knew of the need or her right to do so),[21] and she cannot rely on her own default to argue there are merits to an appeal which she has not made or there is good cause for deferring taxation and keeping the defendant out of her money.

53.The plaintiff argued there are reasonable grounds to support an application to the CA for extension of time to appeal against the 25/3/13 and 30/10/13 Orders because she applied for legal aid on 27 March 2013 (ie one day after the Decision was released to her), and such application was pending processing until the end of 2013 when counsel’s opinion was received.  Legal aid was granted in early January 2014 for the main action because her case has merits, and hence there is reasonable explanation for the delay.  She claimed that instead of waiting for legal aid for her intended appeal which is still being considered, she “would start to prepare for the appeal as soon as possible instead of just waiting for result”.

54.Section 15 of the Legal Aid Ordinance Cap 91 provides as follows:

“(2) Where an action has been commenced or where an appeal has been lodged in respect of any proceeding and any party, …… makes an application for legal aid, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court in which the action is commenced or in the court in which the appeal is lodged, as the case may be, a memorandum of such notification.

(3) Where any party to an action, …… makes an application for legal aid to prosecute an appeal or proceedings in the nature of an appeal, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court …… against whose judgment or order it is intended to appeal, a memorandum of such notification.

(4) Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run.”

55.Regulation 7A of the Legal Aid Regulations Cap 91A provides that “[the] period during which any proceedings are stayed by section 15 of the Ordinance shall be 42 days”.  Such legal aid statutory stay is limited to 42 days irrespective whether legal aid has been granted/refused or pending processing.  The plaintiff did not refer this court to any order granting extension of the period of statutory stay.

56.In the circumstances, taking into account the two LA Application Memo filed on 2 April and 23 May 2013 respectively, the 42‑day legal aid statutory stay expired by mid-May 2013 and early July 2013 respectively, and the 14-day deadline for the plaintiff to apply for leave to appeal against the 25/3/13 Order expired latest by late July 2013.  In my view, the plaintiff well knew there was no stay after the expiry of the statutory period otherwise it would have been unnecessary for her to seek stay of execution of the 25/3/13 Order by the Stay Summons, and the court would not have been in a position to hear the Stay Summons in October 2013.  More importantly, Poon J by the Decision had reminded the plaintiff of the absence of any appeal against the 25/3/13 Order.

57.Likewise, even taking into account the LA Application Memo filed on 4 November 2013 (ie shortly after the 30/10/13 Order), the 42-day statutory stay expired by mid-December 2013, and the 14-day deadline for the plaintiff to apply for leave to appeal against the 30/10/13 Order expired by the end of December 2013.  In my view, the plaintiff well knew that the legal aid statutory stay had expired and that she should have taken steps to pursue any appeal in relation to the 25/3/13 and 30/1/13 Orders irrespective of the outcome of any legal aid application.  The fact that the plaintiff was granted legal aid for the main action does not mean that legal aid should likewise be granted for any appeal against the 25/3/13 and/or 30/10/13 Orders.  Here, the plaintiff acting in person all along has been active in conducting her litigation and making applications to the court, and was well aware of the need/right to appeal against the 25/3/13 and 30/10/13 Orders, and she all along claimed she had viable grounds of appeal and good reasons for extension of time for leave to appeal.  The plaintiff has not satisfactorily explained why she could not have applied for leave to appeal in person (as she now intimates she may do) earlier.

58.In my view, on the issue of delay, which DHCJ To (as he then was) in Plus Lucky Limited said was “a critical consideration”,[22] the balance is against the plaintiff.  She cannot complain that the risk of wasted time and costs of taxation when such risk arose out of her failure to apply for leave to appeal or extension of time to appeal against the 25/3/13 and 30/10/13 Orders with promptitude or at all.

59.In the end, none of the issues is resolved in favour of the plaintiff, and she has failed to discharge her burden in showing good cause, especially bearing in mind that the second principle is subject to the first principle,[23] and under the first principle Poon J by the 30/10/13 Order and the Judgment had already refused to stay execution of the 25/3/13 Order.

60.Further, a stay would cause delay to the taxation proceedings, and I cannot say that such delay would not cause any prejudice to the defendant, especially when the stay was sought for an indefinite period “upon appeal against [the 25/3/13 and 30/10/13 Orders]” when there are no such appeals as yet or at all.

61.In my view, the plaintiff in effect was seeking a second bite of the cherry by again seeking a stay of execution of the 1^st Cost Order, which had been dismissed by Poon J.  The taxing master had no jurisdiction to grant any stay of the 25/3/13 Order which was reserved to Poon J being the judge who had dealt with the Three Summonses, or to grant an adjournment under Order 62 rule 26 of the RHC as the application was outside the realm of necessity within which he/she might exercise his/her discretion.  Even if the taxing master had such discretion as part of the court’s inherent jurisdiction, the discretion should not have been exercised in favour of the plaintiff since she failed to show good cause.  The first principle fell away since there was no appeal against the 25/3/13 and 30/10/13 Orders and the plaintiff’s application for stay of execution by the Stay Summons had been dismissed, and the second principle (which in any event was subject to the first principle) also fell away for reasons explained above.

62.In the absence of any pending appeal against the 25/3/13 and 30/10/13 Orders, with Poon J’s dismissal of the plaintiff’s application for stay of execution of the 25/3/13 Order (including the 1^st Cost Order) under the Stay Summons, and in the absence of any application for stay of execution of the 30/10/13 Order (including the 2^nd Cost Order), it would be inappropriate to consider the merits of any appeal.  I reject the plaintiff’s suggestion that Master Levy erred by ignoring the invalidity of the Islamic Marriage and/or the suitability of Order 14A of the RHC for determination of this issue.  Master Levy was correct in refusing the plaintiff’s application by the Summons to stay taxation “upon appeal against [the 25/3/13 and 30/10/13 Orders]”.  This is again sufficient for me to dismiss the Appeal.

VI.  Stay of execution

63.As explained in Part V above, the dismissal of the application for stay of the 25/3/13 Order (including the 1^st Cost Order) under the Stay Summons and the absence of application for stay of execution against the 2^nd Cost Order meant the merits of any potential appeal against the 25/3/13 and 30/10/13 Orders were irrelevant.  Even if the merits of any such potential appeal were relevant (but I disagree), Poon J in the Decision had already considered such merits, and found the plaintiff’s grounds for such potential appeal against the 25/3/13 Order wanting.[24]  It is not for this court to revisit the matter which had already been determined.

64.Even if I am wrong and have to consider afresh whether to grant stay of execution (but I disagree), I agree with Poon J (as he explained in the Decision[25]) and Chung J (as he said in Re HY & HT Lee Brothers & Company Limited[26]) that the first consideration is whether there is any pending appeal since the starting point is Order 59 rule 13 of the RHC.[27]  Here, to date there is none (not even an application for extension of time to apply for leave to appeal), and one therefore does not even need to consider whether the plaintiff can justify a stay pending appeal with good reasons.

65.Even if I am again wrong and have to consider whether good reasons exist to justify a stay any pending potential appeal (but I disagree), I now turn to the applicable legal principles.  Generally, even if there is a pending appeal (but there is none here), such appeal does not operate as a stay on the order appealed against, and the successful party is not to be deprived of the fruits of his success.  The relevant principles guiding such exercise of discretion of stay pending appeal (but here there is no pending appeal) are summarised in Star Play Development Ltd v Bess Fashion Management Co Ltd,[28] and I highlight the following points:

(a)  in determining the question whether or not an appeal would be rendered nugatory, irrespective of the nature of the order or judgment appealed from, the court will require evidence as to why the levying of execution will result in the appeal being rendered nugatory, eg an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal;

(b)    where it is said that the levying of execution would result in grave financial consequences or hardship of the appellant, the court will require good evidence to support this contention, and a bare assertion is unlikely to meet with much sympathy where more substantial evidence is available;

(c)  so far as the merits of the appeal is concerned, if the appellant can demonstrate the appeal has strong merits, a stay is readily granted, but conversely if the court is not satisfied that there exist arguable grounds of appeal (ie an appeal with reasonable prospects of success), no stay of execution will be granted; it should also be noted that the existence of merely an arguable appeal could not by itself amount to sufficient reason to justify a stay.

66.Whilst (as explained above) the CA has power to extend time to apply for leave to appeal and to grant leave even where leave has not been applied for in the first instance,[29]  it is entirely in the discretion of the CA (not the court below) to grant or refuse such extension.  The factors which are normally taken into account in deciding how to exercise the discretion are: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing is extended; and (d) the degree of prejudice to the potential respondent if leave is given.[30]  Here, since the plaintiff had not observed the procedural requirements in the first instance (ie she is more than 10 and 5 months out of time for appeal against the 25/3/13 and 30/10/13 Orders respectively), strong grounds must be shown on any direct application to the CA particularly at such a late stage.[31]

67.Even if I should consider the merits of any possible appeal (which I disagree), I need only form a tentative view of the prospects of success of appeal, and the application for stay should not be allowed to become a test run of any substantive appeal.[32] 

68.One of the main arguments by the plaintiff (as alluded to in Summons itself and in the Affirmation) is that “counsel opinions have been sought [by the DLA] with merits found”.  However, at the Hearing

the plaintiff maintained legal professional privilege over the contents of such counsel opinion, which opinion has not been disclosed.  The court can only consider the arguments raised by the plaintiff without the benefit of such counsel opinion.

69.The plaintiff focused her arguments on the 28/9/12 Summons and claimed that the present action was fit for summary disposal pursuant to Orders 14 and 14A of the RHC.  She maintained the contentions in paragraph 9 above, which she claimed would lead to a determination of the following two issues in her favour under Order 14A of the RHC, ie the Marriage was invalid, and (premised on such finding in her favour) the Adoption was invalid, and on such basis she sought summary judgment under Order 14 of the RHC against the defendant.

70.The plaintiff argued that the Marriage being an Islamic marriage was necessarily invalid under Hong Kong law as it did not fulfil the statutory requirements under Hong Kong marriage legislation, hence Madam Ng was not the lawful spouse of the Deceased, which meant the Adoption was invalid since the defendant did not fulfill the statutory requirement under the Adoption Ordinance Cap 290 of having two spouses for her adoptive parents, and which (together with the fact that the defendant did not satisfy the live-in requirement under section 21 of the Ordinance) in turn rendered the 1979 Nomination invalid.

71.The plaintiff submitted that the question of whether or not the Marriage was invalid was a pure point of law that ought to be resolved under Order 14A of the RHC.  But Poon J held that such issue was not suitable for determination under Order 14A of the RHC in that (a) the validity of the Marriage (and there is no dispute that it was an Islamic marriage) was to be determined by Islamic law which called for expert evidence but none was proffered by the plaintiff, and (b) the validity of the Marriage was also fact sensitive involving the circumstances of how it was actually celebrated at the time, consequently the second issue as to the validity of the Adoption was not appropriate for determination under Order 14A of the RHC, and it also followed that the plaintiff’s application for summary judgment under Order 14 of the RHC must fail.

72.On the primary issue of the validity or otherwise of the Marriage, the defendant contended that the Marriage was entered into by the Deceased and Madam Ng in accordance with their personal law, ie the law of Islam, and hence it was a valid marriage.  I agree with Poon J that expert evidence is required,[33] and such need for expert evidence is borne out by the plaintiff’s own reliance on a published article by the Incorporated Trustees of the Islamic Community Funds of Hong Kong, which trustees she claimed are expert authority on Islamic affairs in the local context, and also other learned texts.  

73.The plaintiff also made serious complaints as to the defendant’s failure to satisfy the live-in requirement under section 21 of the Ordinance.  However, it is the defendant’s contention that this was irrelevant because before Madam Ng passed away and the 1979 Nomination took effect, the Society was already dissolved on 12 March 1998 whereupon any right to succeed to Madam Ng’s membership became a chose in action that fell under her intestate estate which only the defendant was entitled to succeed.  The defendant also relied on limitation defences.  I agree with Poon J that these are matters which ought to be properly canvassed at trial, and not determined by summary disposal and/or striking out applications.

74.Since the plaintiff was not able to demonstrate strong grounds to challenge Poon J’s decision on the primary issue of whether or not the Marriage was amenable to Order 14A determination, it follows there are no strong grounds to challenge the secondary issue as to the validity or otherwise of the Adoption and/or to support the summary judgment application, and the various issues of law and fact identified in paragraph 32-33 of the Decision should properly be ventilated at trial.  I must point out the suggestion that the plaintiff’s claim has some merits, which claim may ultimately find favour with the court at trial, does not mean she is able to satisfy the more stringent threshold required for summary disposal under Orders 14 and 14A of the RHC or for striking out pleas in the D&C under Order 18 rule 19 of the RHC.

75.Having carefully considered the plaintiff’s other arguments in her supporting affirmation, in the grounds of appeal in respect of the Appeal, and in her written and oral submissions in relation to her challenge against the 5/10/12 and 30/10/12 Summonses, the plaintiff was essentially repeating the arguments set out in her SoC and R&DC and used in the course of the hearing of the Three Summonses before Poon J, following which the 25/3/13 Order was made.  I am not persuaded there had been arguable errors of law that suggest any appeal against the 25/3/13 Order can be classified as having a high likelihood of success.  Indeed, according to Poon J, there were no reasonable prospects of success, [34] which is the threshold for granting leave to appeal against interlocutory decisions.[35]  In examining whether the plaintiff has demonstrated other factors that may tilt in her favour, I also refer to the discussion in paragraphs 47 and 50-60 above, and find that on the issues of delay and prejudice the balance is against the plaintiff.

76.As regards the 30/10/13 Order, a stay of execution is a discretionary relief.  The discretion whether or not to grant such relief is vested in the judge who heard the application.  As explained by Kwan JA in Excel Courage Holdings Limited & anor v Wong Sin Lai also known as

Wong Sin Lei and formerly known as Wong Tam Yee & ors,[36]

“55. ……. The appeal court must defer to the judge’s exercise of his discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The function of the appeal court is initially one of review. It will not disturb the judge’s exercise of discretion unless the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised; or he had wrongly taken into account irrelevant matters or failed to take into account relevant matters; or his exercise of discretion was plainly wrong. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to F; The Abidin Daver [1984] 1 AC 398 at 420A to C).”

As pointed out by Poon J in the Judgment, the fact that as at 30 October 2013 there was no pending appeal against the 25/3/13 Order went a long way to show there was little basis for a stay of execution.[37]

77.All in all, I am unable to share the view that there are good prospects of the 1^st and/or 2^nd Cost Orders being overturned on any potential appeal.

VII.  Conclusion

78.I am given to understand that after the Hearing and pending the handing down of this Decision, the taxing master proceeded with the taxation hearing for the taxation of costs in respect of the 1^st Cost Order on 26 May 2014.  Whilst I would have thought the fact that the Appeal having been heard and pending decision by this court might have constituted good cause for adjourning the taxation hearing pending the outcome of the Appeal (but not pending the outcome of any potential appeal yet to be made in respect of the 25/3/13 and 30/10/13 Orders), the taxing master’s decision nevertheless to proceed with the taxation hearing on 26 May 2014 did not prejudice the plaintiff in view of my conclusion in respect of the Appeal.  Accordingly, I dismiss the Appeal.  I also grant a costs order nisi that costs of and occasioned by the Appeal (including all costs reserved, if any) be paid by the plaintiff to the defendant to be taxed if not agreed.

The plaintiff acting in person and present

Ms Kelly Ho, of C K Mok & Co, for the defendant