LAM DOROTHY LAI WAH v. THE OCCUPIERS (WHOSE NAME ARE UNKNOWN) AND OTHERS

[English Translation – 英譯本]

CACV 100/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 100 OF 2016

（ON APPEAL FROM DCMP NO. 3168 OF 2013）

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JUDGMENT

Hon Chu JA (giving the Judgment of the Court):

1.  This was an appeal from an order dated 3 June 2015 by Master of District Court Li Chi-ho allowing Madam Chan Mei Lan (“Madam Chan”) to be joined as the 3rd defendant in DCMP 3168/2013. The 2nd defendant, Chan Sik Chung Lhamshirman (“the 2^nd defendant”), appealed out of time against this order and other orders of the Master. Deputy District Judge Walker Sham (“the trial judge”) dismissed his appeal on 29 September 2015 and refused to grant him leave to appeal out of time to the Court of Appeal on 11 January 2016.

2.  On 15 April 2016, the Court of Appeal in HCMP 195/2016 granted leave to the 2nd defendant to appeal to the Court of Appeal, but only to the extent of the order allowing Madam Chan to be joined as the 3rd defendant in DCMP 3168/2013, the ground of appeal being that the order of the Master does not comply with the stipulation in Order 80 rule 2 of the Rules of District Court (“RDC”), Chapter 336H of the Laws of Hong Kong.

Factual Background

3.  The relevant factual background was already given by the Court of Appeal in paragraphs 4 to 12 of its judgment dated 15 April 2016, which is as follows：

4. The 2^nd defendant, Chan Sik Lung (transliteration) and Chan Mei Lan are the children of Chan Tsing Yun (“the father”) and Wong Hong Chi (transliteration).

5. The plaintiff and Chan Sik Lung were husband and wife but they divorced in 1994.

6. Chan Tsing Yun passed away on 7 November 2014 (sic). On 6 June 2014, the 2^nd defendant was granted letters of administration by the High Court of Hong Kong and became the administrator of the father’s estate.

7.  The plaintiff is the registered owner of Room D, 1/F, No. 5 Tak Ku Ling Road, Kowloon City (“the Property”). Pursuant to Order 113 of the Rules of the District Court, Cap. 336H, the plaintiff issued an originating summons in the District Court to apply for recovery of possession of the Property from the occupiers of the Property who were not named.

8. The plaintiff claims that between 1981 and 1982, by licence, she permitted the father and mother to live in the Property without charging them any rent and after the death of the father and mother in 2004 and 2013 respectively, the licence has come to an end.

9. The 2nd defendant was granted permission by the court to join in the proceedings on 17 March 2014 as the 2nd defendant in the case.

10. The 2^nd defendant claims in his “Amended Defence and Counterclaim” dated 28 October 2014 that the plaintiff did not own any interest in the Property and the father was the beneficial owner of the Property while Chan Mei Lan currently lives in the Property.

11. According to the 2nd defendant, the father purchased the Property in 1966. However, the middle man whom he had entrusted embezzled the money and failed to complete the formalities for the purchase and title registration of the Property. In around 1976, the plaintiff paid off the balance of the purchase price on behalf of the father and became the registered owner of the Property.  In 1980, the father repaid the plaintiff by instalments the sum which she had paid on his behalf.  However, the plaintiff did not give the title of the Property back to him. After the divorce of the plaintiff and Chan Sik Lung, the father applied to the Legal Aid Department for legal aid so as to institute proceedings against the plaintiff to recover the title of the Property. Yet the application ended up with nothing definite due to unknown reasons.

12. The 2nd defendant also alleges that since 1966, the father and their family had all along resided in the Property. In 1978 (sic), the plaintiff married Chan Sik Lung and thereafter, other siblings moved out successively. Even since (sic) the death of the father and mother, Chan Mei Lan has lived in the Property alone. The property tax, maintenance expenses and management fees etc. of the Property had been paid by the father and the 2^nd defendant since 1978. The plaintiff has only taken over the payment of the management fees since October 2013.

This Appeal

4.  On the application of the plaintiff, Master Li made the following order on 3 June 2015:

(1) Leave to the plaintiff to amend the statement of claim;

(2) Parts of the Amended Defence and Counterclaim of the 2nd defendant be struck out;

(3) Madam Chan be joined as the 3rd defendant in the action; and

(4) The administrator of the father’s estate be joined as the 4th defendant.

5.  The leave to appeal granted by the Court of Appeal on 15 April 2016 was only in respect of the order that Madam Chan be joined as a defendant, and was only to the extent of the ground of appeal that the Master’s order did not comply with the requirements of Order 80 rule 2 of the RDC. However, the 2nd defendant asked the Court of Appeal to overturn the remaining 3 orders of the Master in his Notice of Appeal and Skeleton Argument. In its judgment of 15 April 2016, the Court of Appeal already stated the reasons for refusing to grant leave to appeal in respect of the other 3 orders. Without leave to appeal, the 2^nd defendant cannot appeal against the other orders of the Master. His statements about the other orders of the Master are outside the scope of this appeal. This court will not consider or deal with them.

6.  The 2nd defendant adduced documentary evidence in the District Court proceedings, which included a medical report by a psychiatrist of the Kowloon Hospital dated 10 June 2014 and a letter dated 24 February 2014 of the Kowloon City Integrated Home Care Services Team of S.K.H Holy Carpenter Church to prove that Madam Chan was unfit to attend court hearings and incapable of representing herself in court and dealing with legal proceedings. From these documents, it can be seen that Madam Chan falls within the meaning of a person under disability in Order 80. The plaintiff did not dispute that Madam Chan is a person under disability either.

7.  The 2nd defendant indicated that he represented his father who had passed away, and all his siblings. He also sought to represent Madam Chan. Order 80 rule 2(3) of the RDC provides that: “Except where the Official Solicitor is acting as next friend or guardian ad litem, a next friend or guardian ad litem of a person under disability must act by a solicitor.” However, the 2nd defendant indicated that he was not able to engage a lawyer. His legal aid application was not granted either. Under these circumstances, he is not eligible to be the guardian ad litem of Madam Chan.

8.  This appeal is against the order that Madam Chan be joined as a party to the litigation, and thus involves the interest of Madam Chan. Since she was a person under disability, and there was no suitable person to act for her in this appeal, the Court of Appeal referred the case to the Official Solicitor. With no objection from the Official Solicitor, an order was made on 13 February 2017 that the Official Solicitor be appointed as the guardian ad litem of Madam Chan in this appeal to protect her interests.

9.  In accordance with the directions given by the Registrar of Civil Appeals Mr Simon Leung, the Official Solicitor acting as the guardian ad litem of Madam Chan filed with this Court written submissions on the issues in this appeal.

Discussion

10.  The 2nd defendant’s stance was that he objected to Madam Chan being joined as a party to the District Court proceedings. However, when granting the leave to appeal, the Court of Appeal explained that since the 2nd defendant’s Amended Defence and Counterclaim stated that Madam Chan lives in the Property, the claim of the plaintiff and the results of the action may affect her interests. Therefore, there are proper grounds to join her as a party to the action.

11.  The issue that concerned the Court of Appeal was that while there was evidence that Madam Chan was a person under disability, without dealing with the matter of appointing a guardian ad litem, whether the Master’s order that Madam Chan be joined as a defendant complied with the stipulation in Order 80 rule 2 of the RDC, in particular that in relation to a guardian ad litem in rule 2(1). This is also the only issue in this appeal.

12.  Order 80 rule 2(1) of the RDC states as follows：

“A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem.”

13.  The trial judge stated in paragraph 26 of his judgment dated 29 September 2015 that: “though Chan Mei Lan is a person with disabilities, this does not affect whether she should be added as a defendant of this case.”

14.  The plaintiff supported the decision of the Master and the trial judge on the ground that rule 2(1) is only applicable to a person who has already become a party to a litigation and that it is not applicable to a person who has yet be joined as a party to a litigation, therefore the court does not have to consider and deal with the matter of guardian ad litem when dealing with an application for joining a party.

15.  Mr Yu on behalf of the plaintiff submitted that rule 2(1) only provides that “[a person under disability] may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him”, and that it does not mention the proceedings of joining a party. He also quoted paragraph 7 of the Notes for Guidance in the Acknowledgment of Service of Writ of Summons form, which states that where the defendant is a mental patient, the form must be completed by a guardian ad litem. He was of the view that it demonstrated that rule 2(1) is only applicable to an incapacitated person who has already become a defendant.

16.  Mr Yu also submitted that Order 80 rule 2(6) already guarantees that a person under disability has a guardian ad litem to act for him, therefore the court was not required to intervene to deal with the matter of appointing a guardian ad litem at the stage of dealing with the application for joining a party to the proceedings.

17.  This Court is of the view that the submissions of the plaintiff ignored that this is an interlocutory application for joining a party to legal proceedings. As submitted by the Official Solicitor, the plaintiff applied to join Madam Chan as a party to the proceedings by an inter partes summons, in which Madam Chan was one of the parties summoned, and was also an interested party in the proceedings. When the court dealt with the summons of the plaintiff, it was necessary to consider the stance of Madam Chan. However, as a person under disability, she was unable to appear in court to respond to the application. There must be a guardian ad litem to act for her. When there was evidence that Madam Chan was incapacitated, the court could not disregard Order 80 Rule 2 and the question of Madam Chan’s guardian ad litem and regard Madam Chan as being absent or treat it as an ex parte application and simply order that she be joined as a party to the litigation.

18.  This Court does not agree that given the absence of express provision in rule 2(1) on joining a party to the proceedings and the existence of rule 2(6), there was no need to have regard to and consider Order 80 rule 2(1) and the matter of appointing a guardian ad litem when the court dealt with an application to join a party to legal proceedings.

19.  Mr Yu also submitted that Order 15 rule 6(2)(b) of the RDC already set out the factors which the court shall have regard to in dealing with an application for adding a party, and that it does not require the court to consider other factors. Moreover, Order 15 rules 8(2) and (3) stipulate that where by an order under rule 6 a person is to be made a defendant, the rules as to service of a writ of summons and the rules as to acknowledgment of service shall apply. Therefore, he was of the view that Order 80 applies only after Madam Chan has become a defendant. Mr Yu also relied on Order 80 rule 7 to support the argument that the proceedings referred to in Order 80 only applies to a person who has already become a party to legal proceedings.

20.  This Court does not accept these submissions. To begin with, Order 15 rules 6(2)(b), 8(2) and (3) and the language of Order 80 do not suggest that they should be interpreted as mutually exclusive. On the contrary, these provisions are compatible with one another.

21.  As to Order 80 rule 7, it provides that when a person under disability has been served with an order made ex parte under Order 15 rule 7, an application for the discharge or variation of the order must be made within the time prescribed by the rule. An ex parte application under Order 15 rule 7 deals with the situation where there is a change of party because a party to an action dies or the interest or liability of a party is assigned or transmitted to or devolves upon some order person. This clearly is an entirely different situation from that of the plaintiff taking out an inter partes summons to add Madam Chan as a defendant. More importantly, an application under Order 15 rule 7 is an ex parte application, in respect of which the court will not and is not required to consider the situation and the stance of the party intended to be added when making an order. Therefore, the court may not need to consider whether the party intended to be added is a person under disability or the matters related to guardian ad litem etc. when making the order. However, when a court is dealing with an inter partes summons, it has the obligation to consider the situation and stance of the party who is summoned and is an interested party. Therefore, the provision in Order 80 rule 7 does not assist the plaintiff’s position.

22.  Mr Yu also said that if Order 80 was applicable to an application made under Order 15 rule 6(2)(b), it would introduce a new practice and enable the party intended to be added to the proceedings to make use of it as a tactic to claim that he himself is a person under disability, causing the court to adjourn the application and thus achieving the purpose of delaying the proceedings. This Court finds that these submissions have no substance. The party intended to be added as a defendant to the proceedings or his representative must produce at least some evidence of his disability before the court is required to consider Order 80 and matters related to appointing a guardian ad litem. Further, in this case, the evidence before the Master showed that Madam Chan was a person under disability and Madam Chan was a party who was summoned in the plaintiff’s summons. Mr Yu’s submission on this area is simply of no relevance in the circumstances.

23.  Based on the above analysis, it was improper for the Master to add Madman Chan as a defendant without dealing with Order 80 rule 2 and the question of the guardian ad litem of Madam Chan. His order must be set aside.

24.  The Official Solicitor submitted in his submissions in this appeal that the Official Solicitor agreed to be the guardian ad litem of Madam Chan in the District Court proceedings after considering the relevant situation, including the inability of the 2nd defendant and the other siblings of Madam Chan to be her guardian ad litem.

25.  The Official Solicitor at the same time informed this Court that along with the usual practice and at the request of the Official Solicitor, the plaintiff had given an undertaking to the Official Solicitor that she would compensate the expenses incurred by the Official Solicitor for being the guardian ad litem of Madam Chan, to be taxed on indemnity basis (see the letter dated 13 February 2017 from the Official Solicitor to the Registrar of Civil Appeals). For the avoidance of any doubt, this Court must point out that the undertaking by the plaintiff is related to the costs of the Official Solicitor himself; it does not affect any order to be made by the District Court as it thinks fit as to the costs between the parties in the legal proceedings of DCMP 3168/2013 later on.

26.  Given the stance of the Official Solicitor, and to save time and costs, this Court takes the view that it is not necessary to remit to the District Court the plaintiff’s application for adding Madam Chan as a defendant. Exercising the power given by Order 59 rules 10(3) and (4) of the Rules of the High Court (Cap 4A), this Court appoints the Official Solicitor to be the guardian ad litem of Madam Chan in DCMP 3168/2013 and orders that Madam Chan represented by the Official Solicitor be added as the 3rd defendant in the case. This Court also grants the plaintiff leave to further amend her Originating Summons and the Statement of Claim accordingly, and orders the plaintiff to serve her Re-Amended Originating Summons and Re-Amended Statement of Claim to all the parties in the proceedings.

27.  As to the costs of the application for leave to appeal in HCMP 195/2016 and the costs of this appeal, this Court considers that the plaintiff and the 2nd defendant both succeeded and failed on different issues in the application for leave to appeal and in this appeal. Therefore, the proper approach is not to make any order as to the costs between the plaintiff and the 2nd defendant. Costs of Madam Chan in this appeal should be costs in the cause of DCMP 3168/2013.

Orders of this Court

28.  The orders of this court are：

(1) The appeal be allowed.

(2) The part in the order dated 29 September 2015 made by the trial judge refusing to allow the 2^nd defendant’s appeal against the order dated 3 June 2015 to add Chan Mei Lan as a defendant be set aside.

(3) The Master’s order dated 3 June 2015 to add Chan Mei Lan as a defendant be set aside.

(4) The Official Solicitor be appointed as the guardian ad litem of Chan Mei Lan in DCMP 3168/2013.

(5) Chan Mei Lan, with the Official Solicitor acting as her guardian ad litem, be added as the 3^rd defendant in DCMP 3168/2013.

(6) Leave be granted to the plaintiff to make further consequential amendments to her Originating Summons and Statement of Claim within 14 days from the date of this order.

(7) The plaintiff to serve her Re-amended Originating Summons and Re-Amended Statement of Claim to all parties of the proceedings within 14 days thereafter.

(8) No order as to the costs between the plaintiff and the 2nd defendant in this appeal and in HCMP 195/2016.

(9) The costs of Chan Mei Lan, with the Official Solicitor acting as her guardian ad litem, in this appeal be in the cause of DCMP 3168/2013.

29.  Since the 2nd defendant is unrepresented, this Court directs the legal representative of the plaintiff to submit a draft order to this Court for approval after consultation with the Official Solicitor.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.