CHOI WAI KWONG v. CHOI WAI KEUNG

DCCJ 6076/2019

[2024] HKDC 571

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6076 OF 2019

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DECISION

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1.  By my Decision dated 29 November 2023 ([2023] HKDC 1662), I ordered that, inter alia, the Master’s decision dated 27 February 2023 be set aside, and the plaintiff’s summons dated 7 June 2022 to strike out the Amended Defence be dismissed with no order as to costs.

2.  The plaintiff now applies for leave to appeal against my Decision in relation to his striking out application.  The principles on when leave ought to be granted are well known and not disputed, and do not need lengthy repetition here. 

3.  I shall consider the plaintiff’s proposed grounds of appeal in the order they were presented in his submissions.

Grounds 1 & 6

4.  Ground 6 complains that I should not have considered the 2^nd Affirmation of Choi Wai Keung dated 28 August 2023 in refusing to strike out the Amended Defence, as the affirmation was filed to support the defendant’s summons to re-amend the Amended Defence, and was not available to the Master at the hearing below.  It is argued that the affirmation does not satisfy the principles as laid down in Ladd v Marshall, and thus should not be accepted as part of the evidence for the plaintiff’s striking out application before me.

5.  I agree with the defendant’s submissions that the reference to the 2^nd Affirmation of Choi Wai Keung at §§19-20 of the Decision was not integral to my reasoning.  In §28 of my Decision, I held that the Amended Defence pleaded a sufficient factual case to resist striking out.  The affirmation in question was only one of the few pieces of evidence I referred to for the purpose of setting out what, in my decision, was the defendant setting forth consistently as his factual case.  I do not agree that the way I referred to that affirmation affects the integrity of my reasoning.

6.  I do not accept Ground 6 is reasonably arguable.

7.  Ground 1 claims that, by summarizing what I understood to be the defendant’s case in §20 of the Decision, I must have proceeded on the basis that there was an agreement between the plaintiff and the defendant, sometime prior to the execution of the Assignments, that the plaintiff would assign the subject lands to the defendant at no consideration for the purpose of giving effect to intention the defendant alleges to have existed (“the Alleged Agreement”).  But I erred in not recognizing that (i)  the Alleged Agreement has never been pleaded in the Amended Defence; (ii)  it was so lacking in particulars such that it could not be believed at all; and (iii)  it was in fact contradictory with the Amended Defence.  As a result, my reasoning in finding that the defendant has pleaded an adequate defence is defective.

8.  I do not think the plaintiff has correctly characterized §20 of the Decision.  That paragraph alluded to my understanding that the defendant pleaded a mutual understanding as to who should be entitled to what land by the time of Chinese DFA and the DFA were entered into, such that the 2 documents should be construed in consistent with such understanding.  The alleged mutual understanding did not necessarily need to sound through a legally binding agreement in order to be given effect with through the interpretation of the Chinese DFA and the DFA.

9.  As such, the alleged failures now relied on by the plaintiff under this ground do not arise.  I do not think Ground 1 is reasonably arguable.

Ground 2

10.  Under this ground, the plaintiff similarly argues that I erred in relying on the Alleged Agreement when it was inherently unbelievable.  In my decision, this ground is also not reasonably arguable.

Ground 3

11.  The plaintiff argues that the Amended Defence has only pleaded a non-admission against the reliance on the DFA in the Statement of Claim. Hence, the defendant should be precluded to put forward a positive case on the true meaning of the DFA.  Insofar as I refused to strike out the Amended Defence by accepting the defendant’s case on the correct interpretation of the DFA, this is not permissible.

12.  I do not think this alleged error is reasonably arguable.  There can be no dispute that striking out is a remedy of last resort, and the court should be slow to do so when a party’s case can be remedied by way of suitable amendment(s).  In §28 of the Decision, I referred various parts of the Amended Defence, and accepted that the defendant pleaded an adequate factual case. Hence, despite the apparent non-admission against the plaintiff’s reliance on the DFA in the Statement of Claim, the Amended Defence has in fact put forward a positive case.  At the interlocutory stage, I do not think it is correct to say that the defendant ought not be permitted to run a positive case because how he might have traversed in some other parts of his pleading.  It is up to the defendant to decide what to do before the trial comes up in light of the plaintiff’s stance.  In my decision, what the plaintiff now relies on falls far below the “plain and obvious” requirement to successfully strike out the Amended Defence.

Grounds 4, 5 & 7

13.  I find it convenient to consider these grounds together.

14.  As I understand it, the plaintiff argues in grounds 4 & 5 that I should have found that the Amended Defence is so defective, and the averments therein so unbelievable that I should have acceded to the plaintiff’s application.  The plaintiff pleads and counter-pleads what can or cannot be seen in the evidence in an attempt to make good his argument.

15.  This exercise has been done through the industry of the plaintiff’s counsel at the hearing before me.  The submissions now launched by the plaintiff have not persuaded me that I made any mistake in the Decision. Indeed, it has been repeatedly stated by the Court of Appeal that a simple rehash of arguments already deployed at the original hearing, without showing how the decision appealed against erred, is not in itself sufficient for leave to appeal to be granted: see e.g. S v C [2021] HKCA 1372 at §11.

16.  In any event, as I set out in the Decision, the various defects and inconsistencies of the defendant’s case as alleged by the plaintiff ought to be properly considered in a trial such that the proper weight can be assigned to the different pieces of evidence.  It remains to be my view that the plaintiff’s submissions actually highlight the unsuitability of disposing of this action by way of a striking out application.

17.  I do not find grounds 4 & 5 reasonably arguable.

18.  Ground 7 refers to DCCJ 3090/2022 that the defendant commenced but subsequently discontinued.  The plaintiff argues that the defendant’s decision to withdraw his claim in DCCJ 3090/2022 shows that the defendant is abusing the process of this court in continuing his resistance to the plaintiff’s claim. He also points out the defendant’s conduct in the present action to argue that the latter has been trying his utmost to derail the proceedings.

19.  I agree with the defendant that one cannot draw much conclusion out of commencement and discontinuance of DCCJ 3090/2022 with respect to the merits of the plaintiff’s striking out application.  Whatever the plaintiff may think as the defendant’s true motive in various steps the latter took in DCCJ 3090/2022 and in the present action, these must be best ventilated in a trial so that the court can consider the proper weight to be assigned to the parties’ conduct. In my decision, these matters could not have supported the plaintiff’s striking out application.

20.  Ground 7 is equally unarguable.

Orders

21.  None of the intended grounds of appeal raised by the plaintiff is reasonably arguable, nor is there any reason to allow the plaintiff to appeal against the Decision in the interests of justice.  The plaintiff’s application for leave to appeal is refused.

22.  There shall be an order nisi that the defendant is to have the costs of this application (with a certificate for counsel), which I now summarily assess to be $50,000.00.  The costs order nisi shall become absolute unless any party applies for vary by way of letter within 14 days hereof.

23.  I thank counsel for their assistance.