LINDA CHAN, Administratrix of the Estate of SUNG KESTER KER v. KHAY SUNG, and KHAY SUNG, Administratrix of the Estate of YING LING LINDA LAM

HCA 1739/2021

[2023] HKCFI 2371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1739 OF 2021

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D E C I S I O N

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1.  The Plaintiff (“Linda”) is the administratrix and widow of her late husband Kester Ker Sung (“Ker”). Khay Sung (“Khay”) is the brother of Ker and the administrator[1] of the Estate of Madam Ying Ling Linda Lam (“Lam’s Estate”), the late mother of Ker and Khay.

2.  In this action, Linda sues Khay (in his personal capacity) and Lam’s Estate for, among others, an account and then payment of all the income derived from two flats in City One, Shatin said to be owned by Ker (“the Properties”).

3.  Both parties have all along acted in person and both are conversant in English.

4.  Linda issued a summons on 27 June 2023 (“the Summons”). It is not entirely clear from the wording of the Summons what the orders applied for are. It may be an order for the actual payment of all the income derived from the Properties since May 2014 and/or for an account and/or for production of documents relating to the income and expenses of the Properties.

5.  On 23 August 2023, Master Kent Yee ordered that the hearing of the Summons be adjourned to 10am on 11 October 2023 for a further call-over hearing (with 15 minutes reserved) to be dealt with together with HCMP 338/2017 and HCMP 1821/2021 (“the Subject Order”).

6.  The parties have previously engaged themselves in a number of proceedings, namely and among others, HCAG 014340/2014, HCAG 009981/2018, HCCA 00021/2015, HCMP 338/2017 and HCMP 1821/2021.

7.  HCMP 338/2017 was commenced by Lam’s Estate against Linda in which the former claims that Madam Ying Ling Linda Lam was the beneficial owner of the Properties. Recently, in a decision given by Deputy High Court Judge MK Liu on 19 July 2023, it was ordered, among others, that HCMP 338/2017 be continued as if begun by Writ.

8.  HCMP 1821/2021 apparently was commenced by Linda against Khay to evict him from one of the Properties. As the court file is not before me, the exact nature of that set of proceedings is not clear. That notwithstanding, in the court file of this action different Masters clearly noted that HCMP 1821/2021 is related to this action.

9.  By Notice of Appeal dated 24 August 2023, Khay and Lam’s Estate appeal against the Subject Order and seek instead that there be an order that (a) this action be summarily dismissed on various grounds, and (b) this action, HCMP 338/2017 and HCMP 1821/2021 be not heard together.

10.  On the same day, ie. 24 August 2023, Khay and Lam’s Estate issued a summons seeking security for costs of HK$10,400 against Linda. This summons was adjourned to be heard also at 10am on 11 October 2023.

11.  This is the hearing of the appeal against the Subject Order.

12.  Linda had informed this court by letter dated 5 September 2023 that at the time of this hearing she would still be overseas receiving medical treatment. She is not present today and in the circumstances this court considers it appropriate to proceed in her absence.

13.  Having heard Khay on his own behalf and as administrator of Lam’s Estate, I would dismiss the appeal for these reasons:

a.  It is trite law that an appeal from a Master to a Judge in Chambers is conducted by way of a re-hearing. I thus treat the matter as if it were before me for the first time.

b.  The Subject Order was a case management decision. The question whether this action, HCMP 338/2017 and HCMP 1821/2021 should be consolidated (in any way as appropriate) is one that clearly merits serious consideration; and is one that is well within the court’s case management power to raise. It is settled rule of practice that on the occasion when the question of consolidation is considered, all the proceedings involved should be listed, all the court files of those proceedings brought before the coram considering it, and all the parties in the proceedings involved should be summoned to be heard.

c.  Thus, it is clearly correct and appropriate for the learned Master to order a further call-over hearing to deal with the question of consolidation together with the further conduct of the Summons (which applied for substantive relief in respect of the Properties).

d.  As for the order for summary dismissal of this action that Khay and Lam’s Estate now seek, this court cannot, and it would be procedurally wrong for this court to, deal with it as there was no such order made from which this appeal was brought, and this appeal is not an application for such summary dismissal of this action. Such must be properly applied for by summons.

e.  As for the other order that Khay and Lam’s Estate now seek, namely, that this action be not consolidated with the others, again, no such order for consolidation has yet been given from which this appeal was brought. Rather, the Subject Order scheduled that question to be dealt with at the adjourned hearing on 11 October 2023. It is wrong for Khay and Lam’s Estate to try to pre-empt the consideration of that question by way of this appeal.

14.  In the premises, I formally dismiss this appeal with costs. In Linda’s absence, I would summarily assess the amount of costs at HK$800 to be payable by Khay and Lam’s Estate to Linda forthwith.