Chan Wan Yee v. Chan To Fun

CACV 21/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 21 OF 2014

(ON APPEAL FROM HCAP NO. 2 OF 2012)

________________________

________________________

BETWEEN

________________________

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal by the defendant against the decision of Kwan JA of 3 October 2014. By that decision, Kwan JA ordered the defendant to pay security for costs of the appeal in the sum of $133,300 within 56 days. In the substantive appeal, the defendant is appealing against the judgment of L Chan J of 10 January 2014 in HCAP 2 of 2012 granting probate to the plaintiff in respect of the estate of Sin Hung (deceased) based on her will of 15 October 2005 with rectifications. The plaintiff was a granddaughter of the deceased whilst the defendant was a son of the deceased. There were other children and grandchildren of the deceased. Under an earlier will made by the deceased in 2003, the estate was to be divided into 16 shares of which the plaintiff was given 4 shares and the defendant 1 share. Under the 2005 will, the estate is to be divided into 14 shares and the defendant and another son are cut off from any inheritance. The plaintiff still gets 4 out of the 14 shares.

2.In the action below, the defendant did not file any defence or witness statement.  The probate action was commenced by the plaintiff on 30 January 2012 because the defendant has filed a caveat on 27 January 2011 and entered an appearance on 2 April 2011 to the plaintiff’s warning to caveator.  He was notified of the date of trial on 29 January 2013. The trial was scheduled to be commenced on 7 May 2013.  His attempt to delay the trial by a late application for legal aid was initially unsuccessful before the judge, see paras 5 to 8 of the judgment of L Chan J.  However, the judge granted an adjournment of the trial to the defendant on 7 May.  On 10 May, after hearing the defendant who explained to the judge the nature of his case (see paras 11 to 15 of the judgment), the judge directed that the defendant be at liberty to cross-examine the plaintiff’s witnesses in the proof of the 2005 will but not to adduce any new fact, whether by way of cross-examination or otherwise.  The direction was obviously made in view of the failure of the defendant to file any defence or witness statement. The case was adjourned to 17 July 2013.  However, the defendant applied for legal aid again on 5 July 2013 and because of the legal aid stay, the trial was not resumed until 17 December 2013.

3.After trial, the judge was satisfied that the plaintiff had proved her case and granted her probate accordingly.

4.In the application for security for costs, Kwan JA explained clearly why the defendant’s appeal is wholly without merit at paras 13 to 16 of her judgment of 3 October 2014.

5.The defendant filed the following documents with the court after the judgment of Kwan JA:

(a) A summons of 13 October 2014, seeking the following relief:

“the decision/order dated October 3, 2014 be stayed/dismissed; the signature of the deceased, Sin Hing, on her 2005 Will to be officially authenticated; the proof of payment for the Plaintiff’s legal costs to Yaddy Cheung and Co. Solicitors, and M/s Lee and Chow, Solicitors for the Plaintiff, Security Costs Order and the Plaintiff (non HK resident)”

(b) An affidavit of 13 October 2014 supporting that application.  Though there was a reference to new evidence to be adduced on appeal, there was no clear identification of such evidence.  The defendant only said it would be in the draft trial bundle subject to further directions to be given at the preliminary direction hearing before the master.

(c) A letter dated 7 November 2014 seeking to file additional evidence without actually filing any summons, affidavits or witness statements.  The court had already informed the defendant that it would not entertain such request without proper summons and affidavit.

(d) The skeleton submissions for this appeal against the decision of Kwan JA lodged on 12 November 2014.

6.So far as we can glean from the contents of the affidavit of 13 October and the documents attached to it, the defendant is not referring to any evidence which the defendant could not have adduced at the trial if he had exercised reasonable diligence.  The defendant has not even begun to demonstrate how he could satisfy the requirements of Ladd v Marshall [1954] 1 WLR 1489 that:

(a) such evidence could not have been obtained at the trial with reasonable diligence;

(b) such evidence would or might have a very important effect on the mind of the judge; and

(c) such evidence is of a sort which inherently is not improbable.

7.In the circumstances, we do not have any basis to give consideration to the so-called new evidence, some of which were self-serving (like the defendant’s report to the police) whilst others were not even placed before us as evidence given on oath (as that referred to in the letter of 7 November 2014). 

8.The decision of Kwan JA on security for costs is an exercise of discretion.  This court will not interfere with such discretion unless we are satisfied that Kwan JA had applied wrong principles of law or had given wholly erroneous weight to some matters or failed to take into account some matters or that Her Ladyship was plainly wrong, see Mok Pak Keung v Wong Ip Ming CACV 78 of 2000.

9.In the judgment of Kwan JA, Her Ladyship had clearly explained the relevant principles on security for costs and applied the same to the facts of this case.  We do not detect any error.  Further, we are of the view that Kwan JA’s decision is plainly correct.  The defendant’s appeal has no reasonable prospect of success.  It would be a travesty of justice if security for costs is not ordered in the present circumstances.

10.For these reasons, we dismiss the appeal against the decision of Kwan JA.  It follows that we also dismiss the application for stay in the summons of 13 October.  As regard the other parts of the summons, the relief sought are not appropriate for consideration in an appeal against a decision on security for costs.  The court would not entertain such applications (assuming without deciding that they are relief that the court may grant) unless the defendant can successfully appeal against the judgment of L Chan J.  On the materials before us, we are not convinced that the appeal has any merit.  We also dismiss the summons of 13 October.

11.In accordance with the decision of Kwan JA, unless the defendant pays security for costs in the sum of $133,300 by 28 November 2014, his substantive appeal against the judgment of L Chan J shall be dismissed without further order.  In the meantime, all proceedings in the appeal are stayed.

Mr Edward M H Chan, instructed by Lee & Chow, for the plaintiff

The Defendant appeared in person