WONG SIK YUK v. TSUI LEN

HCA 1194/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1194 OF 2015

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DECISION

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Introduction

1.  This court handed down a decision dated 9 January 2017 (“the Decision”) whereby the striking out application of Mr Tsui was dismissed and a costs order nisi that do Mr Tsui pay Madam Wong her costs of her summons with certificate for two counsel was made.

2.  Mr Tsui took out two summonses both dated 23 January 2017 and makes two applications. First, he applies leave to appeal against the Decision and second he applies to vary the costs order nisi to the extent that there should be no order as to costs or at least there should be no certificate for two counsel. Mr Pang SC, with Mr Yim, for Madam Wong again, opposes both applications.

3.  The background facts are sufficiently set out in the Decision and I shall not make any repetition here. I shall adopt the abbreviations used in the Decision. I shall first deal with the leave application.

4.  At the outset of the hearing, Mr Wu confirms that the Decree Absolute was made by consent and if Madam Wong wishes to set it aside, she has to start a new action.

Applicable legal principles

5.  There is no debate about the applicable legal principles. Section 14AA(4) of the High Court Ordinance, Cap.4A provides that the applicant must show that his appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

6.  I should also bear in mind that leave to appeal should not be lightly granted and the prospect of success of the appeal must be reasonable and more than fanciful without having to be probable: SMSE v KL [2009] 4 HKLRD 125 per Le Pichon JA §17.

7.  Since the Decision involved the exercise of my discretion, the following two authorities relating to appeals against exercise of discretion in striking out cases are pertinent.

8.  In Golding v Wharton Saltworks Company (1876) 1 QBD 374, James LJ in dealing with an appeal from an order refusing to strike out a particular plea in a defence, said this (at pp.375-376),

“... in order to prevent embarrassing pleas, the Court may order to be struck out any matter which may tend to prejudice, embarrass, or delay the fair trial of the action. But it is a question of discretion whether the pleading is embarrassing; and no doubt the Common Law Division will say that, except in an extreme case, they will not interfere with the discretion which the judge has exercised, and we, as the Court of Appeal, say the same thing with even more force.”

9.  In Saatori v Raffles Medical Group [2010] 2 HKLRD 263 at §29, Yuen JA had this to say,

“A judge’s decision whether to strike out an action is of course an exercise of discretion and it is well established that an appellate court should not interfere unless it is shown that the judge had made an error of law, or misapprehended material facts, or had failed to take relevant matters into account, or had been “plainly wrong”.

10.  With these well-established principles in mind, I turn to the grounds advanced on behalf of Mr Tsui.

Proposed grounds of appeal

11.  Mr Wu first complains that this court failed to give full weight and any due weight to the Declaration, which in his submission, contradicts the Certificate and being issued by a higher authority, it thus destroys the entire basis of the claim of Madam Wong.

12.  Mr Wu further submits that Madam Wong did not expressly challenge the contents of the Declaration in the PRC Action.

13.  I cannot accept his submission. I have sufficiently considered the effect of the Declaration on the Certificate and the PRC Action. I do not think I can conclude that Madam Wong actually accepts the contents of the Declaration.

14.  Mr Wu takes me through the two sets of legal opinion of the PRC lawyers of Madam Wong to make the point that they said nothing about the Declaration. Be that as it may, I do not think this omission really assists Mr Tsui particularly at this stage and in the absence of any contrary expert evidence.

15.  The second ground is that this court erred in taking into account of the Disputed Marriage as de facto marriage is not a lawful marriage under Hong Kong law.   

16.  I agree with Mr Pang that on a proper reading of paragraph 38 of the Decision, which I need not repeat here, I did not fall into such an error.

17.  Having considered all the evidence before me, I came to the conclusion that Mr Tsui failed to meet the very high threshold of striking out. I cannot conclude that Madam Wong’s claim is hopeless. Mr Wu fails to convince me that it is an extreme case that the Court of Appeal will interfere with my exercise of discretion. I do not think the intended appeal of Mr Tsui has any reasonable prospect of success and that there are some other reasons in the interests of justice that the appellate court should be asked to examine the Decision.

18.  I therefore dismiss the summons for leave to appeal.

Variation of costs order nisi

19.  In the Decision, the costs order nisi was made on the basis that costs should follow the event. I further briefly explained why I believe certificate for two counsel is justified. I opine that this application involves slightly complicated legal issues relating to matrimonial law (both PRC law and local law) and I also appreciate the considerable assistance that I have received from Madam Wong’s counsel.

20.  Mr Yim submits that that this application is of obvious importance to Madam Wong’s action and the Ancillary Relief Orders that she wishes to set aside concern an amount of over HK$10 million. He highlights that it was observed by this court that Mr Wu made serious attacks on the case of Madam Wong and so the engagement of two counsel is justified to deal with his forceful challenge. I note from the authorship of the pleading that both Mr Pang and Mr Yim have been involved in this action at the very outset.

21.  The primary position of Mr Wu is that this court also forms a dim view of the case of Madam Wong and opines that her pleading calls for amendments. On this basis, the striking out application though rejected is not unmeritorious and there should be no order as to costs.

22.  I cannot agree to this submission. In the Decision I concluded that it is far from plain and obvious to me that Madam Wong’s claim is hopeless and doomed to failure. The high threshold of striking out applications cannot be compromised and Mr Tsui should bear the consequences if it cannot be met. As pointed out in the Decision, a claim cannot be struck out merely because it is weak and not likely to succeed.

23.  In regard to the grant of certificate for two counsel, Mr Wu submits that there is no difficult or complex dispute of fact or argument on difficult points of law. Therefore, engagement of two counsel is not necessary and even if Madam Wong is happy to incur such expenses, there is no reason why Mr Tsui has to bear such extra costs.

24.  Mr Wu further takes this court through the list of factors set out in Hong Kong Civil Procedure 2017 Vol.1 at §62/App/48 relevant to the question of two counsel. He highlights that Mr Yim (called to the Bar in 2001) is sufficiently experienced in matrimonial litigation and is well capable of handling this matter by himself alone.

25.  Having considered counsel’s submission, I conclude that certificate for two counsel, for the reasons given in the Decision and in light of the matters submitted by Mr Yim, to which I agree, should be granted. The issue of costs is always a matter of discretion calling for a weighing exercise of a basket of factors. The particularly important considerations here include the substantial amount at stake and the involvement of expert evidence on PRC law. I hence refuse to accede to Mr Tsui’s application to vary the costs order nisi.

Conclusion and order

26.  Mr Tsui is unable to meet the threshold of section 14AA(4) of the High Court Ordinance. I refuse to grant him leave to appeal. I accordingly dismiss his summons in this connection.

27.  I am unable to accept the submissions of Mr Wu in regard to the application to vary the costs order nisi. I also dismiss the summons for this purpose.

28.  Costs should follow the event. Mr Wu does not suggest otherwise. He however maintains Mr Pang SC’s involvement in both applications is not necessary. I agree with him only in respect of the application to vary the costs order nisi, which was indeed resisted by Mr Yim alone with skills and competence. I agree that no certificate for two counsel should be granted in respect of the summons for that purpose. For the avoidance of doubt, I disallow the costs of Mr Pang though I am not sure whether he charges separately for this application.

29.  I therefore order that Mr Tsui should pay Madam Wong her costs of these two applications, to be taxed if not agreed. With respect of the summons for leave to appeal, Madam Wong is entitled to certificate for two counsel.

30.  Lastly I thank counsel on both sides for their assistance.