THE PERSONAL REPRESENTATIVE OF TSUI WAI YIP, DECEASED v. LAM MO CHIU

CAMP 145/2022

[2022] HKCA 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 145 OF 2022

(ON AN INTENDED APPEAL FROM DCCJ NO 4878 OF 2017)

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J U D G M E N T

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1.  This ex parte summons was issued on 10 May 2022 by the personal representative of Tsui Wai Yip, deceased for an order that leave be granted to represent the deceased in making an application to the Court of Appeal for leave to appeal against the judgment of Deputy District Judge Timon Shum dated 6 December 2021[1] dismissing an action for defamation brought by the deceased. The deceased passed away on 16 February 2022.

2.  The summons was issued pursuant to Order 15 rules 6A(3) and (7), rules 7(1) and (2), rule 17 of the Rules of the High Court.

3.  On 12 May 2022, the Registrar of Civil Appeal directed the personal representative to support with authority why the rights of the deceased in a claim for defamation would survive for the benefit of his estate and to clarify if the ex parte summons is taken out under Order 15 rule 6A or rule 7.

4.  The deceased’s widow, Madam Li Cheng Xiao Mei, filed a second affirmation on 25 May 2022 in support of this application. The plaintiff’s solicitors made submissions by letter dated 23 May 2022 in which they clarified that they no longer rely on Order 15 rule 6A but would rely on Order 59 rule 3 instead. They contended that the deceased was still alive when judgment was handed down. If the judgment was reversed on appeal, it would have the effect that the deceased had won the case as on 6 December 2021 when he was still alive. His executrix and his beneficiary should be entitled to appeal against the judgment which would substantially affect his/her interest in terms of damages and costs.

5.  Reference was made to paragraph 59/3/2 of Hong Kong Civil Procedure 2022 vol 1 in support of the contention that the widow (being the sole executrix and sole beneficiary of the deceased’s estate) is interested, aggrieved and prejudicially affected by the judgment and should be granted leave to appeal.

6.  Paragraph 59/3/3 of Hong Kong Civil Procedure 2022 states that the appellant’s personal representative may prosecute the appeal on death of an appellant upon obtaining an order to carry on the proceedings under Order 15 rule 7 of the Rules of the High Court. Paragraph 15/7/3 of Hong Kong Civil Procedure 2022 makes specific reference to the exclusion of causes of action for defamation under section 20(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23, which provides that the general rule that causes of action vested in a person shall survive on his death for the benefit of his estate does not apply to causes of action for defamation.

7.  Based on the above, it is clear that the personal representative would not be entitled to an order to carry on an appeal in the defamation proceedings and the causes of action for defamation (including liabilities which can be redressed by legal proceedings[2]) cannot survive upon the deceased’s death pursuant to section 20(1) of the Ordinance.

8.  I therefore dismiss the ex parte summons filed on 10 May 2022 for leave to the personal representative to represent the deceased in making the application for leave to appeal. I dismiss also the summons filed on behalf of the personal representative on 10 May 2022 for leave to appeal against the judgment. As it does not appear that any substantial costs have been incurred by the defendant, I make an order nisi there be no order as to the costs of the two summonses.