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

HCA 899/2012

[2022] HKCFI 2949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 899 OF 2012

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D E C I S I O N

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1.  In this decision, unless otherwise stated, I adopt the definitions and abbreviations used in Master Kent Yee’s judgment herein dated 29 July 2022 (“Accounts Judgment”).

The application and relevant procedural background

2.  On 30 September 2016, I handed down judgment herein after trial (“Trial Judgment”) by which I ordered (1) Clara to account for the Kam Fai Proceeds; (2) Clara and the Company (“Defendants” collectively) to account for the St Louis Flat 1D Proceeds; (3) the Defendants to pay the plaintiff (“Father”) the sums found to be due on the taking of such accounts; and (4) the Company to transfer St Louis Flat 25C to Father.

3.  On 17 March 2017, which was more than 4½ months after the expiry of the time prescribed for an appeal, the Defendants applied under HCMP 620/2017 for extension of time for appeal from the Trial Judgment and a stay of execution pending the Defendants’ proposed appeal. In purported support of the application, the Defendants produced a draft notice of appeal signed by counsel and solicitors. The application was dismissed by the Court of Appeal (Yuen JA and Poon JA as the Chief Judge of the High Court then was) on paper on 28 February 2018: [2018] HKCA 109. It is worthy of note that the Court of Appeal found that the chances of success of the proposed appeal are not such that the court would extend time for appeal after the Defendants’ inexcusable substantial delay [28].

4.  On 6 March 2018, by a summons filed purportedly pursuant to Order 59, rule 2A(7) of the Rules of the High Court (Cap 4A), the Defendants applied to the Court of Appeal for a reconsideration of its decision on 28 February 2018 at an inter partes oral hearing. The Court of Appeal dismissed the Defendants’ application on paper on 11 September 2018 for want of jurisdiction and lack of merits: [2018] HKCA 597.

5.  Neither of the Defendants has taken any steps to satisfy any part of the Trial Judgment. On 28 June 2018, upon Father’s application by summons dated 27 April 2018, I gave directions (with reasons) for the taking of the accounts I ordered under the Trial Judgment (“Accounts Directions”): [2018] HKCFI 1482. In so doing, I rejected the Defendants’ application for stay of execution of the Trial Judgment.

6.  Then, on 16 December 2020, after the time limit for appeal against the Accounts Directions had long expired, Clara issued a notice of appeal under CACV 643/2020, by which she sought to set aside the Accounts Directions. By a letter dated 18 January 2021, the Registrar of Civil Appeals informed Clara, amongst other things, and that she should have sought an extension of time to appeal against the directins. By the Registrar’s letter dated 19 March 2021, Clara was further advised, amongst other things, that she should have taken appropriate steps in this action if she intends to appeal against the Accounts Directions.

7.  By a summons issued herein on 25 March 2021, the Defendants applied for an extension of time to lodge an appeal to set aside the Accounts Directions. As the Defendants required leave to appeal under s 14AA of the High Court Ordinance (Cap 4), this court treated the application as one to extend time for an application for leave to appeal against the Accounts Directions. This application was dismissed for the reasons set out in [14]-[21] of my decision, with indemnity costs, handed down on 5 May 2021.

8.  By a summons dated 17 May 2021 issued in CAMP 167/2021, the Defendants applied to the Court of Appeal for an extension of time to lodge a notice of appeal against the Accounts Directions.

9.  By a decision dated 13 September 2021 ([2021] HKCA 1311), the Court of Appeal (Yuen and G Lam JJA) made the following orders with indemnity costs: (1) dismissal of the Defendants’ summons dated 17 May 2021 for an extension of time to appeal from the Accounts Directions on the ground of inordinate and inexcusable delay alone; and (2) striking out the notice of appeal in CACV 643/2020 (to set aside the Accounts Directions); and dismissing the Defendants’ appeal.

10.  The lack of merit, and the timing, of the abovementioned applications by the Defendants smack of a delaying tactic. Needless to say, the court disapproves of such litigation strategy.

11.  After much inexcusable delay caused largely by various unmeritorious appeals and applications made by the Defendants (some of which are outlined above), the accounts ordered by the Trial Judgment were eventually taken before Master Kent Yee on 16 and 17 May and 2 June 2022, nearly 6 years after the Trial Judgment.

12.  Under the Accounts Judgment, it was determined that:

(1)  Clara owed Father HK$1,896,765.21 for the Kam Fai Proceeds; and

(2)  the Defendants owed Father $3,014,200 for the St Louis Flat 1D Proceeds.

Both sums are to be paid within 28 days from the date of the Accounts Judgment with interest at 4% per annum from the date of the writ until judgement and thereafter at judgment rate until full payment.

13.  The Defendants appealed against the Accounts Judgment by a notice of appeal filed on 1 August 2022 under CACV 296/2022 (“Appeal”).

14.  Now before the court is, simply put, the Defendants’ application, by summons dated 22 August 2022 (“Summons”) and purportedly supported by Clara’s 8^th affirmation of the same date, for primarily a stay of execution of the Accounts Judgment pending the determination of the Appeal.

15.  For the sake of completeness, the Summons contains 4 paragraphs which, in addition to a stay of execution of the Accounts Judgment under paragraph 1, also purportedly seeks (1) to stay the execution of the Trial Judgment, the Accounts Directions and various costs orders against the Defendants in this action (paragraphs 2 and 4); and (2) to claim for the return of the monies so far recovered for Father by the Director of Legal Aid (paragraph 3). It should become clear, from the above outline of procedural background and the following discussion on the application for stay of execution of the Accounts Judgment pending appeal, as to why paragraphs 2 to 4 of the Summons are untenable.

16.  Further, on 26 August 2022, Clara wrote a letter to the Chief Judge of the High Court, stating that “The 1^st Defendant does not believe that it would be in the best interests of the Defendants that Madam J Wong continues to sit as a judge in ruling the matters of HCA 899/2012, given the apparent bias displayed and carried out against the Defendants.” (“Recusal Application”) (emphasis added).

Recusal Application

17.  I shall deal with the Recusal Application first.

18.  The mere fact that a judge has in the past decided applications or issues adversely against a litigant is not a reason for that judge to recuse himself at further hearings. See, for instance, Mimmie Chan J’s detailed discussion in Cosimo Borrelli as Trustee of the SFC Litigation Trust v Allen Tak Yuen Chan [2020] HKCFI 2382 at [7]-[8] and [13]-[18], which was applied by Deputy High Court Judge Winnie Tsui in Source View Dev Ltd v Café Happy Post Ltd [2022] HKCFI 511 at [6]-[8].

19.  Apart from complaining that I had previously ruled against them, the Defendants also raised an assortment of objections, which are unintelligible to me. Anyway, none of such objections would cause a fair-minded and informed observer to conclude that there is a real possibility that I am biased against the Defendants.

20.  I dismiss the Recusal Application and further make an order nisi that the Defendants shall pay Father’s costs of and occasioned by such application to be taxed, if not agreed, on an indemnity basis with certificate for counsel. Father’s own costs of the Recusal Application shall be taxed in accordance with the Legal Aid Regulations (Cap 91A).

Stay application

Principles governing grant of stay of execution pending appeal

21.  An appeal does not operate as a stay of execution of proceedings: Order 59, rule 13(1).

22.  The principles governing an application for a stay of execution of a judgment pending appeal are well established. A summary of such principles can be found in, for example, the judgment of Chow J (as he then was) in Astro Nusantara International BV v PT Ayunda Prima Mitra (No 2) [2016] 1 HKLRD 591 at [15] as follows, following the decision of Ma J (as the former Chief Justice then was) in Stay Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84:

“(1) The applicant is required to demonstrate a “good reason” for a stay of execution.

(2) Generally speaking, the existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It is the minimum requirement before a court would even begin to consider granting a stay.

(3) In other words, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted however exceptional the circumstances may otherwise be justifying a stay of execution.

(4) On the other hand, the existence of a strong appeal or a strong likelihood of success will usually by itself enable a stay to be granted because this would constitute a good reason for a stay.

(5) In most cases, where the court is faced with simply the existence of an arguable appeal, it becomes necessary for the applicant to provide additional reasons as to why a stay is justified.

(6) Commonly, this is done by demonstrating that without a stay the appeal would be rendered nugatory, for example, because of an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal against a money judgment, or because the failure to grant a stay would have a serious deleterious effect on the applicant.

(7) In considering an application for a stay pending appeal, it would be impractical and even undesirable for the court to go deeply into the merits or strengths of the appeal, although the court must still form a preliminary view of these aspects.”

Discussion

23.  The Defendants’ notice of appeal dated 1 August 2022 sets out the proposed grounds of appeal in paragraphs numbered 1 to 12.

24.  Many of such proposed grounds are incomprehensible.

25.  Anyway, the prospects of success of the Appeal on these grounds are, in my view, slim if not unarguable.

26.  It is not necessary to go into each and every ground.

27.  Paragraphs 1, 2, 3, 9, 10-11 and 12 target the Trial Judgment (or the findings made therein), the Accounts Directions and my abovementioned decision dated 5 May 2021 (refusing the Defendants’ application for time to lodge an appeal to set aside the Accounts Directions). First, the defendants’ applications for time to appeal against such determinations have already been finally determined against the Defendants by the Court of Appeal. The defendants cannot have a second bite of the cherry. Second, the arguments identified in these 6 paragraphs could have, but had apparently not, been raised in support of the Defendants’ multiple applications to appeal or otherwise challenge the Trial Judgment and the Accounts.

28.  As for the remaining paragraphs, they dispute the findings of fact, or what are in substance findings of fact[1], in the Accounts Judgment.

29.  The principles for the appeal court to disturb the findings of fact of the trial judge are well settled. See, for instance, the Court of Appeal’s summary of the threshold for an appeal against findings of fact at [33] and [34] of Yu Man Fung Alice v Chiau Sing Chi Stephen [2021] HKCA 1456:

“Palpable errors, whether of law or of fact, must be identified, and they must be sufficiently material to undermine the conclusions of the trial judge. In the absence of material errors, an appeal court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. What matters is whether the decision is one that no reasonable judge could have reached. That the judges in the appeal court may have reached a different conclusion is not a ground for intervention.

The principles for appellate intervention apply also to inferences of fact drawn from primary facts (unless the finding is based purely on inferences or otherwise has nothing to do with the witnesses’ demeanour or the trial judge’s having received the evidence at first hand), and findings of mixed fact and law, or an issue on which the judge had to come to a judgmental conclusion after taking a number of factors into account. The correct approach in reviewing such a conclusion is to treat the judge’s decision with utmost respect, and refrain from interference unless satisfied that it proceeded upon some erroneous principle or was plainly wrong. It is similar to an appeal against an exercise of discretion.”

30.  The Defendants have certainly not pinpointed any palpable error in the Accounts Judgment, whether of law or fact.

31.  Even if the Appeal should be arguable, the Defendants have not alluded to any additional reasons to justify a stay of execution pending the determination of the Appeal.

32.  To the contrary, against the procedural history outlined above, I question the fides of this application. I strongly suspect it is again motivated by an intention to delay.

33.  For the above reasons, it is inappropriate to, and I will not, stay the execution of the Accounts Judgment pending the Appeal.

34.  Accordingly, I dismiss the Summons. I also order on a nisi basis that the Defendants shall pay Father’s costs of and occasioned by the Summons to be taxed, if not agreed, on an indemnity basis with certificate for counsel. Father’s own costs shall be taxed in accordance with the Legal Aid Regulations.