CHEUNG MOON HOI v. HO CHI KUEN CHARLES

DCCJ 3301/2020

[2021] HKDC 1124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3301 OF 2020

-------------------------

-------------------------

--------------------

DECISION

--------------------

1.  The matter before me is an appeal lodged by the plaintiff (“Cheung”) on 11 June 2021 against the decision made by Master W.Y. Ho on 1 June 2021. By that decision, the Master has dismissed Cheung’s application (“the joinder application”) made on 8 March 2021 for an order adding Yung Mei Chun (“Yung”) as the 2^nd plaintiff in this case. The joinder application is supported by Yung.

2.  An appeal hearing under Order 58 of the Rules of the District Court is a de novo hearing.  Subject to the restriction in Order 58 rule 1(4), the hearing before me is an actual rehearing as if the application came before me for the first time^[1].  There is no application for leave to adduce new evidence in this appeal.  Accordingly, I would approach the matter as if the joinder application came before me for the first time, and the evidence in the appeal would be same as those before the Master.

3.  Cheung’s claim as set out in his amended statement of claim dated 7 September 2020 filed herein is as follows:-

“1. The Plaintiff’s claim against the Defendant is for the total sum of HK$331,600.

Particulars

2. The sum was deposited to the Defendant’s bank account held at Hang Seng Bank for the period from July 2012 to May 2018.

3. Despite demands made from November 2018 to March 2020 by the Plaintiff to the Defendant, the Defendant has wrongfully refused to pay the balance at all.

4. The Defendant provided wrong and false information to the Plaintiff during the services periods. This is something               that needed to be follow[2] up on.”

4.  Initially, Cheung sought leave to join Yung as the 2^nd plaintiff in these proceedings.  Subsequently, Cheung said that the correct name of the proposed 2^nd plaintiff should be “Jessie Yung Certified Public Accountant”.

5.  Yung has made two affirmations in support of the joinder application:-

(1)  In her affirmation dated 24 March 2021, Yung said:-

“2. The Plaintiff’s claim against the Defendant

is for the sum of HK$331,600 plus interests. The sum was deposited to the Defendant’s bank account held at Hang Seng Bank [“the Account”][3] for the period from July 2012 to May 2018.

   3. As I have contributed HK$100,000 to this                    total sum of HK$331,600, I intend to join this action as a 2^nd Plaintiff.”

(2)  In her affirmation dated 25 March 2021, Yung said that she is the sole proprietor of Jessie Yung Certified Public Accountant.  She also said:-

“2. The Plaintiff’s claim against the Defendant is for the sum of HK$331,600 plus interests. The sum was deposited to [the Account] for the period from July 2012 to May 2018.

3. As Jessie Yung Certified Public Accountant (“the Company”) has contributed HK$100,000 to this total sum of HK$331,600, the Company intends to join this action as a 2^nd Plaintiff.”

6.  Since Yung is the sole proprietor of “Jessie Yung Certified Public Accountant”, that trade name in fact is referring to Yung herself and is not a separate legal entity.  To state the obvious, “Jessie Yung Certified Public Accountant” is Yung herself.

7.  On 26 March 2021, “Jessie Yung Certified Public Accountant” commenced proceedings (i.e. DCCJ 1324/2021) against Ho Chi Kuen Charles (“Ho”), who is also the defendant in these proceedings.  Yung’s claim as per her statement of claim dated 26 March 2021 filed in DCCJ 1324/2021 is as follows:-

“1. The Plaintiff’s claim against the Defendant is for the sum of HK$100,000 plus interest.

Particulars

2. The sum was deposited to [the Account] for the period from July 2012 to May 2018.

3. Interest charged at the best lending rate plus 3% from the date the money deposited into [the Account] until settlement.

4. The Defendant provided wrong and false information during the said periods. This is something that needed to be follow[4] up on.

5. Despite demands made from November 2018 to March                 2020 by the Plaintiff to the Defendant, the Defendant has           wrongfully refused to pay the balance at all.”

8.  DCCJ 1324/2021 is still ongoing.

9.  It is plain and obvious that the matter raised by Yung in DCCJ 1324/2021 and the matter intended to be raised by Yung in these proceedings are the same (confirmed by Cheung), namely:-

(1)  Among the HK$331,600 deposited into the Account from July 2012 to May 2018, HK$100,000 is from Yung.

(2)  Ho is not entitled to keep the HK$100,000 and is obliged to return the same together with interest to Yung. 

10.  Cheung is in agreement with Yung that among the HK$331,600, HK$100,000 are from Yung.  That being the case, in respect of the HK$100,000, Cheung would not have any right to take any legal action.  Only Yung would have that right. Whether the claim relating to the HK$100,000 should be pursued in these proceedings or in other proceedings would be a choice solely made by Yung.  If Yung intends to join these proceedings as the 2^nd plaintiff, the joinder application should be made by Yung and not by Cheung.

11.  Having chosen to pursue the matter in DCCJ 1324/2021, Yung is not entitled to raise the same matter in these proceedings.  Otherwise, there would be duplicity of proceedings.

12.  Cheung submits that he may make an application for consolidating DCCJ 1324/2021 and this case in future. I make no comment on whether DCCJ 1324/2021 and this case should be consolidated. In my view, whether these two cases would be consolidated or not would not affect the aforesaid discussion in any way. The key point is that there cannot be duplicity of proceedings. Yung cannot maintain her claim in DCCJ 1324/2021 and at the same time pursue the same claim in this case. Yung may only pursue her claim in one case. As to Yung would pursue her claim in which case, this is a matter to be decided by Yung and not by Cheung. The joinder application is misconceived.

13.  For these reasons, the joinder application must be refused.

14.  I affirm the Master’s decision and dismiss the appeal.

15.  Costs should follow the event.  I order that costs of the appeal be paid by Cheung to Ho forthwith.  With Order 62 rule 28A(3) in mind, I summarily assessed those costs at HK$200.