Yuen Oi Yee Lisa v. Ngai Ngok Pang and Another

CACV 118/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 118 OF 2013

(ON APPEAL FROM HCMP NO. 2829 OF 2012)

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JUDGMENT

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Hon Kwan JA (giving the judgment of the Court):

1.This is a hearing listed on the initiative of the court to consider whether the appeal brought by Ms Yuen Oi Yee Lisa in June 2013 should be dismissed for want of prosecution. The respondents Mr Ngai Ngok Pang and Ms Ngai Yu Ling Mony did not attend this hearing.

2.We refer to the earlier judgment in these proceedings on 18 March 2015 (Yuen and Kwan JJA), in which we have set out the relevant background matters at §§1 to 8 and 33 to 42.  They will not be repeated here.

3.In §41 of our earlier judgment, we made an unless order that unless within 21 days of the judgment Ms Yuen lodges a draft appeal bundle for approval by the Registrar of Civil Appeals, or files a “Request for Dismissal of Appeal by Consent” or a “Request for Dismissal of Appeals”, this appeal is to be listed before three judges for a hearing of 30 minutes to consider dismissal for want of prosecution.

4.On 8 April 2015, Ms Yuen submitted a draft appeal bundle and index for the approval by the Registrar of Civil Appeals.

5.By a letter dated 15 April 2015, the directions of the Registrar made on 13 April 2015 were conveyed to the parties.  The Registrar pointed out in what respects the draft bundle was not in compliance with Practice Direction 4.1.  In particular, the documentary evidence in the bundle (items 3 to 10) was not adduced in the court below and should not be included in the appeal bundle, any new evidence proposed to be adduced on appeal should be placed in a separate bundle and Ms Yuen should seek leave of the court to adduce new evidence.  Ms Yuen was informed that she should submit a bundle in compliance with the Registrar’s directions in the letter by 4 pm on 29 April 2015, failing which the court would list a hearing to consider dismissal of her appeal in accordance with §41 of the judgment on 18 March.

6.On 20 April 2015, Ms Yuen wrote to the court stating that her draft appeal bundle was “not aiming at an appeal at all”, it was just to prove that the court was wrong in its judgment of 18 March in “believing the false affidavit of Mr Ngai Ngok Pang filed and served on 16 September 2014”.  She repeated her contention that Mr Ngai had forged the signature of Ms Ngai in the acknowledgment of service on 24 December 2012, which we have held to be immaterial for the purpose of the appeal in §15 of our earlier judgment.  Ms Yuen then sought “direction” from the court regarding her draft appeal bundle within 7 days of her letter.

7.The Registrar replied on 21 April 2015 that directions had already been given and the parties must comply with the directions within time.  Ms Yuen was informed of this by letter dated 22 April.

8.Ms Yuen wrote on 22 April seeking a further extension of time to submit her appeal bundle since she was “very busy with the police these days”.

9.Her request for extension of time was rejected by the Registrar by letter dated 24 April.

10.To date, Ms Yuen has not submitted an appeal bundle in compliance with the Registrar’s directions.

11.On 4 May, the court wrote to the parties that in accordance with the directions of the Registrar stated in the letter of 15 April, the appeal will be listed for a half-hour hearing to consider dismissal for want of prosecution.  A notice of hearing was issued on 14 May.

12.On 11 June, Ms Yuen wrote to the court stating that she is willing to end this appeal to enable the police to investigate, prosecute and charge Mr Ngai with the alleged forgery.  In view of this, she asked the court to consider dismissing the appeal with no order as to costs.

13.On 16 June 2015, Ms Yuen lodged a submission of five pages for the present hearing, in which she mentioned that the appeal could be “discontinued or adjourned sine die with liberty to restore pending the investigation to be carried out by the Police” into her allegation of forgery against Mr Ngai.  She again submitted that no order as to costs should be made for the present hearing, repeating her allegation that the signature of Ms Ngai was a forgery.

14.It is clear from the entire background that for quite some time Ms Yuen has no interest in proceeding with this appeal.  It is right that the appeal should be dismissed for want for prosecution.  It would hardly be appropriate to adjourn it sine die pending any police investigation into Ms Yuen’s complaints.

15.We see no reason why Ms Yuen should not pay the costs of Mr Ngai and Ms Ngai in this appeal.  Whether the police are to investigate the forgery allegation and whether any charge is to be brought is wholly irrelevant as far as costs are concerned.

16.We assess the costs of Mr Ngai and Ms Ngai in this appeal on a gross sum basis at $2,000, having regard to the fact that costs of $10,000 were already awarded to them on 18 March for the bulk of the work done in this appeal.

The Plaintiff (Appellant) appeared in person

The 1^st and 2^nd Defendants (Respondents) were not represented and did not appear