WONG YUK TUNG v. WONG PO LING (also known as WONG PO LING CLARA) AND ANOTHER

CACV 296/2022

[2022] HKCA 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2022

(ON APPEAL FROM HCA NO 899 OF 2012)

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J U D G M E N T

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

Background

1.  On 30 September 2016, Recorder Lisa Wong SC (as she then was) handed down a judgment in favour of the plaintiff in HCA 899/2012 (“the 2016 Judgment”). It was ordered, among other things, that the 1^st and 2^nd defendants[1] should account for the sale proceeds of certain properties and that they should pay the plaintiff the sums found to be due on the taking of such accounts. The defendants’ application for extension of time to appeal against the 2016 Judgment was dismissed by the Court of Appeal on 28 February 2018 in HCMP 620/2017[2]. The defendants applied to the Court of Appeal on 6 March 2018 for “reconsideration” of its decision of 28 February 2018 at an oral hearing inter partes. This was dismissed on paper on 11 September 2018 for want of jurisdiction and lack of merits[3].

2.  On 27 June 2018, Lisa Wong J gave further directions for the taking of the accounts (“the 2018 Order”). On 16 December 2020, the 1^st defendant issued a Notice of Appeal in CACV 643/2020 to appeal against the 2018 Order, out of time and without leave. The defendants subsequently applied for extension of time to appeal against the 2018 Order by a summons dated 17 May 2021 in CAMP 167/2021. The application in CAMP 167/2021 was dismissed by the Court of Appeal on 13 September 2021 and the Notice of Appeal in in CACV 643/2020 was struck out[4]. Indemnity costs were ordered against the defendants.

3.  The taking of the accounts took place before Master Kent Yee over three days in May and June 2022. On 29 July 2022, the Master handed down his judgment and decided that the 1^st defendant should pay the plaintiff HK$1,896,765.21 and that the 1^st and 2^nd defendants should pay the plaintiff HK$3,014,200 within 28 days, with interests and costs (“Accounts Judgment”)[5].

4.  The 1^st defendant filed a Notice of Appeal against the Accounts Judgment on 1 August 2022. This is CACV 296/2022.

5.  In the relief sought in her Notice of Appeal, not only does she seek an order to set aside the Accounts Judgment (in paragraph (3)), she also seeks to set aside the 2016 Judgment and the 2018 Order (in paragraphs (1) and (2)).

6.  On 5 August 2022, the Registrar of Civil Appeals made a number of directions on the conduct of CACV 296/2022, paragraph 11 of which read as follows:

“The 1^st Defendant do remove paragraphs (1) and (2) of the relief and the grounds of appeal in relation to the [2016 Judgment] and the [2018 Order] in the Notice of Appeal and file and serve a Supplemental Notice of Appeal against the [Accounts Judgment] on or before 19 August 2022.”

7.  The Registrar made clear in the directions that the Notice of Appeal is liable to be struck out if the 1^st defendant does not file a Supplemental Notice of Appeal by the time stipulated. Leave was granted to the 1^st defendant to lodge written submissions if she should object to the striking out of her Notice of Appeal.

8.  On 16 August 2022, the 1^st defendant lodged her written submissions in objection. In gist, she contended that her appeal against the Accounts Judgment cannot be substantiated without appealing against the 2016 Judgment and the 2018 Order. She has not filed a Supplemental Notice of Appeal.

9.  On 31 August 2022, the Court of Appeal wrote to the parties pointing out that paragraph 11 of the Registrar’s directions required the 1^st defendant to remove also “the grounds of appeal” in relation to the 2016 Judgment and the 2018 Order and as the grounds of appeal took up 5 pages in the Notice of Appeal, it is appropriate that the offending parts of the grounds of appeal should first be identified so that the 1^st defendant could give a more focused response why the offending parts and not the entirety of the Notice of Appeal should be removed and struck out. Directions were given for the plaintiff to lodge a submission indicating which parts of the relief sought (apart from paragraphs (1) and (2) mentioned in the Registrar’s directions) and the grounds of appeal in the Notice of Appeal are liable to be struck out and the 1^st defendant was to lodge a submission in response thereafter. Submissions have since been lodged by the parties. On 25 October, the 1^st defendant also lodged with this court the transcript of proceedings of the trial before Recorder Lisa Wong SC which resulted in the 2016 Judgment.

Submissions of the parties

10.  Mr Nelson Miu submitted for the plaintiff that all the relief sought in the Notice of Appeal should be struck out for these reasons:

(1) paragraphs (1) and (2) seek to overturn the 2016 Judgment and to set aside the 2018 Order, the 1^st defendant has no right to appeal against the 2016 Judgment and the 2018 Order as the defendants’ applications for extension of time to appeal against the 2016 Judgment and the 2018 Order have been dismissed by the Court of Appeal;

(2) paragraphs (4) and (6) seek to challenge the findings of fact in the 2016 Judgment;

(3) paragraph (5) was not and had never been in issue in these proceedings;

(4) the order sought to be set aside in paragraph (7) is consequential to a finding of fact in the 2016 Judgment;

(5) paragraph (8) is a non sequitur, the 1^st defendant has provided no reason why the plaintiff and the Director of Legal Aid should be held responsible for her alleged loss, especially when she has reaped a gross profit of $4 million in selling the property mentioned in January 2021 for $6.9 million;

(6) no cause of action was stated in relation to paragraph (9), the Director of Legal Aid has only recovered costs as ordered by the court; and

(7) the remaining relief in paragraph (3) is not supported by any valid ground of appeal.

11.  As for the grounds of appeal, Mr Miu submitted that all the grounds of appeal are directed to overturning the judge’s findings in the 2016 Judgment, and are liable to be struck out.

12.  In response, the 1^st defendant submitted that she needs to go back to the issue concerning the transaction in 1997 in the 2016 Judgment to appeal against the Accounts Judgment. She further contended that the judge was biased and that the Director of Legal Aid, who has been supporting the plaintiff’s litigation, is liable for the defendants’ damages arising from these proceedings as well as all connected proceedings.

Disposition

13.  The 1^st defendant has no right to appeal to set aside the 2016 Judgment and the 2018 Order or to ask the court to reconsider matters adjudicated therein, as her applications for extension of time to appeal had already been dismissed by the Court of Appeal. Thus, paragraphs (1), (2), (4), (6) and (7) of the relief sought in the Notice of Appeal, which seek to overturn the findings or set aside the order in the 2016 Judgment, must be struck out.

14.  Paragraphs (5), (8) and (9) of the relief sought are not the issues adjudicated, or ought to be adjudicated, in the Master’s Judgment, they are also liable to be struck out.

15.  As for the grounds of appeal, notwithstanding the references to the Accounts Judgment in some paragraphs, essentially they all seek to reargue issues adjudicated in the 2016 Judgment. The Court of Appeal has inherent jurisdiction to strike out a notice of appeal where it appears from the grounds that an appeal is plainly not competent[6]. As the 1^st defendant has no right to appeal against the 2016 Judgment, her grounds in the Notice of Appeal are incompetent and should be struck out.

16.  It is not strictly necessary to deal with the contention in the grounds of appeal[7] that the 2016 Judgment should be set aside because the judge was wrong in making a finding of fact that the plaintiff did not have the benefit of funds used to discharge the Second Mortgage out of the SPC Loan. As rightly submitted by Mr Miu, this contention is wholly misconceived. It is clear from §90 of the 2016 Judgment that no such finding of fact was made. Besides, whether and how much of the SPC Loan had been used for the plaintiff’s benefit is a matter of the account taking exercise and the plaintiff had given full credit for the Second Mortgage in the hearing before the Master.

17.  This leaves paragraph (3) of the relief sought. This is not supported by any valid ground of appeal. The court has jurisdiction to strike out an appeal if there is no possibility that the grounds of appeal are capable of argument[8]. It is noted that this power of the court should be confined to clear and obvious cases[9].

18.  The 1^st defendant reiterated in her submissions lodged on 16 August 2022[10] and 27 September 2022[11] that her appeal against the Accounts Judgment cannot be substantiated without seeking to overturn the 2016 Judgment and to set aside the 2018 Order. She recognised that “in order to set aside the [Accounts] Judgment, the 2016 Judgment and the 2018 Order must also be ‘dismantled’.”[12] She also acknowledged that “The proposed grounds of appeal in CACV 296/2022 are effectively a re-run of [her] arguments that the 97 transaction of the Kam Fai Mansion Properties was a sale and not a constructive trust”[13], which had been held against her in the 2016 Judgment. It is fair to say that all the relief sought in the Notice of Appeal and all the grounds of appeal are directed towards the objective of overturning the 2016 Judgment.

19.  Even after the 1^st defendant has been challenged by the plaintiff for failing to put forward any valid ground to support the relief in paragraph (3), she still failed to provide any standalone and valid argument in support of her appeal against the Accounts Judgment which are not commingled with her challenge of the 2016 Judgment.

20.  The above matters clearly show there is no possibility that her appeal against the Accounts Judgment is capable of argument. Hence, paragraph (3) of the relief is liable to be struck out.

Conclusion and costs

21.  For the above reasons, the entire Notice of Appeal in CACV 296/2022 should be struck out and we so order.

22.  Costs of the appeal should follow the event. We make a costs order nisi that the 1^st defendant is to pay the plaintiff’s costs of this appeal, to be summarily assessed on paper. If no summons is taken out by any party to vary the order nisi within 14 days hereof, the costs order nisi will be made absolute. We also order the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

23.  For the summary assessment of costs, we direct the plaintiff’s solicitors to lodge a statement of costs within 14 days hereof, and the 1^st defendant may lodge a submission within 14 days thereafter if she wishes to object to any item of costs. The 1^st defendant’s submission should not exceed three pages on A4 paper, printed in font size of not less than 14 and in line spacing of not less than 1.5.

Postscript

24.  The 1^st defendant has applied to Lisa Wong J for stay of execution of the Accounts Judgment pending the determination of this appeal in CACV 296/2022, with an application for the judge to be recused from sitting in the matter on the ground of apparent bias. The recusal application and the stay application were dismissed by the judge on 26 September 2022[14].

25.  The 1^st defendant renewed her application by a summons issued on 26 October 2022 in this appeal seeking to stay the execution of: (1) the 2016 Judgment and the Accounts Judgment; and (2) the costs orders in HCA 899/2012, its appeals and “connected proceedings”, and asking the court “to consider the cost entitlement of the 1^st defendant, and to order the Director of Legal Aid to release the sum of $1,195,441.21 of legal cost”. She also filed her affirmation in support of the same date. In essence, she repeated her contention that execution of the Accounts Judgment should be stayed because the factual findings in the 2016 Judgment are in error. She also contended that the 2016 Judgment is wrong in law.

26.  In light of the dismissal of this appeal, we dismiss also the summons issued on 26 October 2022. As the plaintiff has apparently not taken any steps in response to this summons, we make no order as to the costs of this summons.