FUNG KA KEI v. LEE YUK YIN PHEONICA

DCCJ 2621/2022

[2026] HKDC 611

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2621 OF 2022

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BETWEEN

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REASONS FOR DECISION

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Introduction

1.  The trial of this action had been fixed to commence on 7 January 2026, with four days reserved for its hearing.

2.  Only two weeks before the scheduled commencement of trial, the Defendant (“D”) issued an inter partes summons on 23 December 2025 (“the Summons”) under Order 15, rules 7 and 9 of the Rules of District Court (“RDC”), seeking, inter alia, an unless order in the following terms:-

“1. Unless the Personal Representatives of the Estate of the late FUNG Ka Kei (deceased) do proceed with the action by applying within 7 days for an Order to carry on and prosecute the proceedings in this action against the Defendant, the Plaintiff’s claim under the action against the Defendant be struck out; and

2. If the Plaintiff’s claim against the Defendant be struck out under paragraph 1, the trial date of 7 January 2026 be retained to deal with the question of costs relating to the action; or, alternatively, the questions of costs relating to the action be dealt with on paper; […]”

3.  Despite the Summons was taken out belatedly, I made the following orders, albeit with reluctance, at the end of the hearing:-

3.1 Unless any person applies within 28 days from the date of this Order for an order that the proceedings in this action be continued and prosecuted against the Defendant, the Plaintiff’s claim in this action against the Defendant be struck out;

3.2 The trial dates listed for 8, 9 and 12 January 2026 be vacated;

3.3 There be no order as to costs in respect of the Defendant’s summons dated 23 December 2025 and in respect of the vacated trial;

3.4 Appropriate application should be made by the Plaintiff’s solicitors under Order 67 rule 6 Rules of District Court or any other provision under this rule for an order declaring that they have ceased to be the Solicitors acting for the Plaintiff as they see fit; and

3.5 Liberty to apply.

4.  The issues raised by the Summons are not without interest. My reasons for the orders made appear below.

Background Facts

5.  According to the Statement of Claim dated 8 July 2022 (“the SOC”), the Plaintiff (“P”) alleged that on or about 4 February 2020 he advanced HK$1,680,453 to D as a loan. P pleads that the parties agreed the sum would be repayable upon his return to Hong Kong. P says he returned in March 2020 and demanded repayment, following which D made five part‑payments between March and July 2020 totalling HK$120,000. No further sums were paid. P therefore claims, inter alia, the outstanding balance of HK$1,560,453, together with interest and costs.

6.  In her Amended Defence, D denies that any loan was ever made. She pleads that she first met P in England through his son, Mr Fung Kam Chung (“Alex”), and that over many years she and her family provided P with extensive financial and practical support, including rent‑free accommodation at her Wraysbury property, use of her car, two vans to enable him to earn income, and occasional sums of HK$5,000 to HK$20,000 as pocket money. She further pleads that Alex provided P with HK$20,000 per month as living expenses. D avers that the five payments she made to P between March and July 2020, totalling HK$120,000, were made at Alex’s request as part of this ongoing support and were not repayments of any loan. She denies ever borrowing money from P or having any liability for the sum claimed.

Procedural History

7.  This action was commenced on 8 July 2022. Pleadings closed following the filing of D’s Amended Defence pursuant to leave granted on 28 May 2024. Witness statements were exchanged in April and May 2024, and supplemental statements were subsequently filed pursuant to orders made at various Case Management Summons hearings. On 14 January 2025, the action was set down for trial before a bilingual District Judge, with trial dates fixed for 7 to 12 January 2026 and a Pre‑Trial Review (“PTR”) listed for 11 November 2025.

8.  Unfortunately, P passed away shortly after the case was set down on 27 January 2025. Mr Lee Po Wing of Messrs Paul Kwong & Company (“PKC”), P’s solicitors on the record, affirmed that and exhibited the death certificate. By letter dated 17 February 2025, PKC notified D’s solicitors (“MNC”) of P’s death and confirmed that the firm no longer held instructions in the action. In light of P’s death and the consequent absence of any client for whom the firm could continue to act, Mr Lee sought an order removing PKC from the Court’s record as P’s solicitors.

9.  After the P’s demise, on 4 March 2025, Mr Lee filed an affirmation with a copy of P’s death certificate attached, seeking an order that PKC be removed from the Court’s record as P’s solicitors. By letter dated 17 February 2025, PKC also notified MNC of P’s demise and confirmed that the firm no longer held instructions in the action.

10.  By a court note dated 23 May 2025, DDJ Louise Chan directed PKC to “make appropriate application as you see fit.” However, PKC did not take any further steps in response. Although PKC had ceased to hold instructions upon P’s death and wished to be removed from the record, such removal required a summons under Order 67 rule 6(2) of the RDC. No such summons was issued, with the result that PKC remained P’s solicitors on the record up to the date of the hearing.

11.  By a joint letter dated 24 October 2025, the solicitors for both parties informed the Court that P had passed away on 27 January 2025 and that PKC no longer had instructions in the action. They further advised that, to their understanding, no person had applied or intended to apply for a grant of administration of P’s estate. In those circumstances, the parties jointly invited the Court to vacate the PTR pending the appointment of an administrator.

12.  By order made by DDJ Damian Wong dated 10 November 2025, the PTR listed for 11 November 2025 was vacated. The Court, however, expressly directed that the scheduled trial dates were to remain in place, and that appropriate application should be made by the parties to vacate the trial if necessary. Unfortunately, neither party took any further steps following that order in the ensuing month.

13.  Only until 18 December 2025, MNC wrote to PKC seeking “clarification” as to whether they acted for any personal representative of the deceased P, requesting details of any such representative, and inviting, if so instructed, an application for a carry‑on order by 22 December 2025, failing which D would seek relief under Order 15, rule 9 RDC. By their reply dated 19 December 2025, PKC confirmed that they had no instructions from any personal representative and that a search of the Probate Registry revealed no record of any grant having been taken out in respect of P’s estate. No indication was given that any personal representative intended to come forward.

14.  On 23 December 2025, with the trial dates imminent, D then issued the present Summons seeking, inter alia, an unless order under Order 15, rule 9 of the RDC requiring any personal representative of the deceased Plaintiff to apply to carry on the proceedings, failing which the action should be struck out. The Summons was served on PKC and on members of P’s immediate family, but no response was received.

15.  The Summons was listed for hearing on 7 January 2026, the first day of the reserved trial window. At the hearing, no personal representative of P had come forward by that date. PKC attended but confirmed that they continued to hold no instructions. No family member or other interested party appeared. In those circumstances, the Court proceeded to hear the Summons.

D’s Application for Unless Order

16.  D submits that proper notice has therefore been given to all P’s potential personal representatives. Despite such notice, no individual has come forward to apply for a carry‑on order or otherwise indicate an intention to prosecute the action. D contends that the requirements of Order 15, rule 9(1) RDC are accordingly satisfied, and that an unless order should now be made requiring any personal representative of the deceased Plaintiff to apply within 7 days to continue the proceedings, failing which the action should be struck out. Given that the Summons is listed on what was originally the first day of trial, D further invites the Court to vacate the remaining trial dates and to make the necessary consequential orders as to costs.

17.  The relevant part of Order 15, rule 9(1) RDC reads as follows:-

“9. Failure to proceed after death of party (O. 15, r. 9)

(1) If after the death of a plaintiff … in any action the cause of action survives, but no order under rule 7 is made substituting as plaintiff any person in whom the cause of action vests …, the defendant … may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff … who has died; but where it is the plaintiff who has died, the Court shall not make an order under this rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified.”

18.  As P sued for a debt in these proceedings, the cause of action generally survives after his demise: Hong Kong Civil Procedures 2026 §15/7/3. Further, Order 15, rule 7 of the RDC permits any person in whom the cause of action vests to apply for a substitution order, substituting himself or herself as the plaintiff. However, as Wilson Chan J observed in Chu Kwok Kee Kookie the committee of the estate of Ming Chor Pao, a mentally incapacitated person v Chu Kwok Bing & Anor. (unrep, HCA 2728/2015, 26 April 2017) at §§4-5, such an application should be made promptly and the rule “clearly envisage that a reasonable time should be given to the person intending to apply for a substitution order before the action is struck out”. In that case, the Court allowed a period of three months (§6).

Delays by Parties and Case Management Considerations

19.  I would have had no difficulty granting an unless order under Order 15 rule 9 of the RDC, and vacating the trial dates, had the Summons been taken out in good time, subject only to extending the period for compliance to 28 days, as P has been deceased for almost a year, and PKC’s enquiries, together with Mr Lee’s understanding, indicate that no person has applied or intends to apply for a grant of administration of P’s estate. However, the Summons was issued only on 23 December 2025, at a time when there were merely eight working days remaining before the scheduled trial, with the Christmas and New Year holidays in between. Unsurprisingly, the Summons could only be fixed for hearing on the first day of the trial window. The timing of the application therefore raises case management concerns which trouble me.

20.  Trial dates are milestone dates: Order 25, rule 3(8) RDC. It is trite that the court shall not allow an application to vary a milestone date unless there are exceptional circumstances justifying the variation: Order 25, rules 3(2) and (3) RDC. Practice Direction 5.2, §42 likewise emphasises that milestone dates are intended to be immovable save in the most exceptional circumstances.[1]

21.  I am fully aware that the dates fixed for the trial of an action must, on occasion, yield to the vicissitudes of life: Law Yin Pok Bosco v Chan Yee Shing (unreported, HCMP 2256/2012, 2 November 2012) per Fok JA (as he then was) at §9. However, in determining whether the trial dates should now be vacated and an unless order granted, it is necessary to address the delays that have arisen in the progress of this action.

22.  It is clear from the procedural history that there were delays on both sides. On P’s side, although P died in January 2025 and PKC notified MNC in February 2025, no steps were taken by any person connected with P’s estate to constitute a personal representative or otherwise enable the action to proceed. Enquiries made of P’s relatives yielded no progress, and searches at the Probate Registry confirmed that no grant had been taken out. The position remained unchanged for many months, notwithstanding the Court’s direction in May 2025 that appropriate applications should be made as the parties saw fit. This prolonged inaction contributed directly to the procedural impasse now before the Court.

23.  However, there were also significant delays on D’s part. By October 2025, D was aware, through the joint letter to the Court, that P had died, that PKC had no instructions, and that no person intended to apply for a grant of administration. Yet no application, whether for an unless order or any other procedural relief, was made at that stage to address the procedural consequences of P’s death. Nor was any application made following the Court’s express direction in November 2025 that the trial dates remained in place and that any party seeking to vacate the trial should make an appropriate application (see §12 above). Instead, D waited until 23 December 2025, about two weeks before the scheduled trial, to issue the Summons. By then, the Court’s diary was firmly committed, and the timing of the application placed the Court in a position of considerable difficulty.

24.  The lateness of the application for unless order is a matter of real concern. As emphasised by HHJ Andrew Li in Ma Ching Wang (a minor) v Choy Yee Lim [2021] 4 HKLRD 219, unexplained or unjustifiable delays, whether by plaintiffs or defendants, undermine the underlying objectives of the Civil Justice Reform and risk wasting valuable judicial resources. Milestone dates are intended to provide structure and certainty to the litigation process, and the Court will not lightly permit them to be disturbed. Further, vacating a trial date when this application was made so close to the start of the trial inevitably adversely affects the efficient discharge of the court’s duties with the real possibility of leaving the court empty and unable to provide service to other litigants: Cheung Suet Wan v Chung Suet Han & Anor [2023] HKDC 808 per DDJ G Chow (as she then was) at §55.

25.  Had D acted promptly in October or November 2025, the present difficulties could have been addressed in a more orderly manner, and the risk of wasted trial time significantly reduced.

26.  Further, it appears from D’s Opening Submissions that D is content and prepared to proceed with the trial in the event that the order sought under paragraph 1 of the Summons is not granted. While an application under Order 15 rule 9 of the RDC is plainly the proper course where a plaintiff has died and no personal representative has come forward, if D wished to proceed with the trial despite that situation, no application was made under Order 15 rule 15 RDC seeking leave to do so. For ease of reference, the rule provides:-

“15. Representation of deceased person interested in proceedings (O.15, r.15)

(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.”

27.  In this case, D suggests that no person is willing to represent P’s estate. If that is so, the Court should appoint nobody, as there is no jurisdiction to appoint a person who is unwilling to act: Hong Kong Civil Procedure 2026 §15/15/3. Rather, D may seek leave to proceed in the absence of a person representing the estate, in which event any judgment or order subsequently made would bind the estate to the same extent as if a personal representative had been a party. Had such an application been made in good time under Order 15 rule 15 of the RDC, the trial could have proceeded and the trial dates need not have been vacated: Wong Tang Kin Kennedy & Ors suing as Managers of Wong Wai Tsak Tong v The Personal Representatives of Ho Mei, deceased [2025] HKCFI 3222 at §27.

28.  Regrettably, no such application was made either.

29.  That said, I accept that the underlying procedural difficulty was not of D’s making. P passed away on 27 January 2025, almost a year before trial, and no personal representative has since come forward to prosecute the claim. While there is delay in bringing the application, the family circumstances described at the hearing are complicated, and the prospects of any relative stepping forward remain uncertain. Further, without a personal representative, P’s claim simply cannot proceed. The unless order sought is therefore necessary to bring the proceedings to a proper footing. In these circumstances, I am satisfied that the present situation constitutes an exceptional circumstance within the meaning of Order 25, rule 3 RDC.

30.  For the above reasons, I made the orders as I did in paragraph 3 above.

31.  I thank Mr Lee and Ms Lee for their assistance.