LEUNG SO HUNG SIEM v. WEN KAR SUEN CARSON

CACV 251/2020, CACV 542/2020 & CAMP 34/2021
(Heard together)

[2022] HKCA 196

CACV 251/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2020

(ON APPEAL FROM HCB NO 4036 OF 2018)

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CACV 542/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 542 OF 2020

(ON APPEAL FROM HCAL NO 1806 OF 2020)

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CAMP 34/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 34 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1806 OF 2020)

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(Heard Together)

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court) :

1.  There are two Appeals and one Summons before the Court by Ms Leung So Hung Siem :

(1)  Appeal against the Bankruptcy Order made against her by G Lam J (as he then was)  dated 11 June 2020 (CACV 251/2020 (“1^st Appeal”));

(2)  Appeal against the Decision dated 18 September 2020 (“Leave Decision”)  of Chow J (as he then was)  dismissing Ms Leung’s application for leave to apply for judicial review against the Judgment of G Lam J (“Judgment”)  by which the Bankruptcy Order was made (CACV 542/2020 (“2^nd Appeal”));

(3)  By a Summons filed on 27 January 2021, Ms Leung seeks an extension of time to serve a notice of appeal against the Leave Decision (CAMP 34/2021 (“Extension Summons”)).  She made a similar application before Chow J which was dismissed by his Decision dated 13 January 2021 (“Extension Decision”).

2.  In addition to the three appeals, there are five Summons by Ms Leung to adduce new evidence in these matters :

(1)  A “2^nd Summons” filed in the 1^st Appeal on 25 November 2020;

(2)  A “3^rd Summons” filed in the 1^st Appeal on 25 November 2020;

(3)  A “5^th Summons” filed in the 1^st Appeal on 26 April 2021;

(4)  A Summons filed in the 2^nd Appeal on 26 April 2021;

(5)  A Summons filed under the Extension Summons on 26 April 2021.

3.  The 2^nd and 3^rd Summonses are supporting by an Affirmation of Ms Leung filed on 25 November 2020.  All three 26 April 2021 Summonses are said to be supported by an Affirmation of Ms Leung filed on the same day[1].

Background

4.  The matters leading to the bankruptcy proceedings against Ms Leung were considered by this Court (differently constituted)  in June 2019: see Leung So Hung Siem v Carson Wen [2019] HKCA 678.  The relevant background facts can be briefly stated as follows.

5.  Ms Leung brought an action, HCA 121/2017 (“Action”), against Mr Carson Wen as the 1^st defendant and five other defendants for HK$ 2.5 billion said to be outstanding fees for introducing investors and for rendering services to the defendants. 

6.  It should be borne in mind that the Action was struck out by Master Lui on 26 April 2018.  Ms Leung’s appeal against the strike out as dismissed by Recorder Houghton SC on 6 September 2018.  Her further appeal was struck out by the Court of Appeal (Lam VP and Poon JA)  on 23 January 2019 on the ground that she had not obtained leave to appeal against the interlocutory decision of the Recorder.  

7.  Mr Wen’s Petition for the bankruptcy of Ms Leung was premised upon two Statutory Demands served on her, dated respectively 2 May and 11 May 2018.  The second (in time)  Statutory Demand was not relied upon by Mr Wen at the hearing before G Lam J and was irrelevant to the Bankruptcy Order.

8.  The first Statutory Demand was based on three costs orders against Ms Leung which had not been fully satisfied.  The details of these costs order can be found in the Judgment, [3] to [6].  In short, the first costs order was made against Ms Leung by Master Hui on 8 May 2017 in an interlocutory application under the Action by which she was ordered to give discovery and provide particulars of her statement of claim.  Her appeal against the Master’s decision was dismissed by Deputy High Court Judge Yee on 21 December 2017. 

9.  On 17 November 2017, Master Hui made another order against Ms Leung with costs on an interlocutory application by which she was ordered to provide particulars of the particulars served by her pursuant to the Order of 8 May 2017.  Ms Leung appealed against the decision, which was heard by Deputy High Court Judge Yeung SC (as he then was).  The appeal was dismissed but the Deputy Judge found that two of the defendants to the Action should not have joined in the application.  Consequently, the Deputy Judge reduced the costs awarded by Master Hui (the second costs order)  and also awarded costs of the appeal against Ms Leung (the third costs order). Subsequently, Ms Leung’s application for leave to appeal to the Court of Appeal out of time was dismissed by both the Deputy Judge and the Court of Appeal. 

10.  All three costs orders remained outstanding, apart from a part payment of the first costs order.  The outstanding amount was HK$76,700.  The first Statutory Demand was for the unpaid sum with interest, in the aggregate sum of HK$77,646.34.

The Judgment

11.  Mr Justice G Lam took the view there was no defence to the Petition based on the first Statutory Demand.  Ms Leung had exhausted her appeal against the three costs orders[2].  She had also failed to set aside the first Statutory Demand and her appeal to the Court of Appeal was rejected (see the Judgement referred to in para 4 above).  In particular, there was no valid ground based on fraud, collusion or miscarriage of justice for impugning the costs orders. 

12.  Further, Ms Leung’s cross-claim (the Action)  against Mr Wen had been struck out, which in any case was not substantiated. 

Leave Decision

13.  Not satisfied with the Judgment, Ms Leung applied for leave to judicially review the Judgment (and related Orders made by G Lam J). 

14.  In the Leave Decision, Chow J dismissed the application on the ground that it was well-established that judicial review did not lie against an order or judgment of the Court of First Instance.  Ms Leung’s application was not reasonably arguable. 

Extension Decision

15.  Ms Leung did not file her notice of appeal against the Leave Decision on time (it was out of time by 2 days)  and she applied before Chow J for an extension of time to do so. 

16.  In the Extension Decision, Chow J referred to the confirmation by this Court of the principle that judicial review did not lie against a judicial decision of the High Court in Chong Yu On v Court of Final Appeal [2020] 5 HKLRD 780.  The Judge was of the view that the intended appeal of Ms Leung was unarguable, and dismissed the application as no useful purpose would be served.

17.  The Judge also rejected Ms Leung’s contention that her notice of appeal was not out of time based on the applicable statutory provisions, namely, ss 3 and 71 of the Interpretation and General Clauses Ordinance, Cap 1.  It was pointed out that if Ms Leung was right, then her application would necessarily be misconceived.

18.  In respect of Ms Leung’s application to adduce new evidence for the extension of time application, since there was no merit in the intended appeal it was also dismissed. 

Grounds of appeal and grounds in support of the Extension Summons

19.  The grounds of appeal advanced by Ms Leung in both Appeals and those in support of the Extension Summons are very difficult to understand. 

20.  Doing the best we can, the grounds in respect of the  1^st Appeal are :

(1)  Ms Leung was entitled to the costs of Mr Wen’s application to amend the Petition;

(2)  The Judge was wrong to have rejected her argument based on the confidentiality of the information which she was required to provide under the particulars ordered;

(3)  The 2^nd defendant in the Action, Suncus Group, was not a legal entity entitled to apply to strike out the Action;

(4)  Ms Leung prayed in aid a judgment of the BVI commercial court in Holm & Anr v Sancus Financial Holdings Ltd & Ors, BVIHC (Com)  5/2017 (19 December 2018);

(5)  Ms Leung took issue with para 57 of the Judgment where part of the decision of Recorder Houghton SC concerning the unsustainability of her statement of claim in the Action was referred to;

(6)  Ms Leung made various allegations of commission of offences under the Theft Ordinance, Cap 210, the details of which are incomprehensible;

(7)  Ms Leung disagreed with the Judge on his findings over the four Summons issued by her (Judgment, [17], [18], [30] to [45]).  It was said that the Judge did not properly consider the evidence presented under the Summons.

21.  In respect of the 2^nd Appeal, the grounds are :

(1)  G Lam J was exercising a public function in the determination of the Petition;

(2)  Much of Ms Leung’s challenges over the Judgment were repeated in the grounds of appeal.

22.  As regards the Extension Summons, Ms Leung maintained that she was only one day late in filing her notice of appeal and that Chow J was wrong to have rejected her application to adduce new evidence.

23.  In her submissions at the hearing of these matters, Ms Leung laid considerable emphasis on her entitlements to commission claimed in the Action.

New Evidence applications

24.  In respect of the three Summonses filed on 26 April 2021 (see paras 2(3)  to (5)  above), the Registrar of Civil Appeals had made the following Directions on 5 May 2021 :

“…

2.  In respect of the 3 Summonses, the court reiterates paragraph 2 of the court’s directions; namely that these 3 Summonses are convoluted and unintelligible.

3.   Though the 3 Summonses are entitled as application for “leave to adduce new evidence”, the reliefs sought therein are difficult to comprehend and appear to be irrelevant to her application for leave to adduce new evidence.

4.   The reliefs sought include for examples, clarification on the directions made by the court “on the 20 April 2021 against 25 February 2021”; “leave to adduce new evidence to the core appeal bundles”; “to use 1 set of application bundles submitted today for the 3 appeal cases”; “to apply leave to add the 4^th Summons back for the Judicial Review Application on these serious issues on the mistake of law…”.  Reference is also made to “CAP 4A Evidence on appeal”.

5.   The 3 Summonses have also included submissions under the “Reasons with facts” which are not easy to comprehend.  In fact, the Debtor has not referred to any new evidence/document that she intends to adduce (with leave of the Court)  in her 3 Summonses.

6.   For the reasons given above, these 3 Summonses are not properly taken out by the Debtor.  They will be referred to the Court of Appeal for disposal at the appeal hearing. …”

25.  We agree with the view taken by the Registrar. The Summonses as well as the supporting Affirmation filed on 26 April 2021 are unintelligible.  Most fundamentally, it cannot be discerned from the materials what new evidence there is, and how it is that the stringent Ladd v Marshall[3]requirements for leave to adduce new evidence can be met, eg, the evidence could not have been obtained at the hearing below with reasonable diligence.  Pursuant to Practice Directions 4.1, [37], the supporting affirmation must explain how the criteria for admission of new evidence are met.

26.  All three 26 April 2021 Summonses must therefore be dismissed. 

27.  The 2^nd and 3^rd Summonses and the supporting Affirmation all filed in the 1^st Appeal on 25 November 2020 are not any easier to understand.  It should be added that the three New Evidence Bundles are in a state of disarray.  These applications suffer from the same deficiencies – it has not been made clear what the new evidence is and how the requirements for adducing new evidence are met.

28.  Accordingly, the 2^nd and 3^rd Summonses are also dismissed.

Discussion on 1^st Appeal

Ground (1)[4]

29.  Upon the application of Mr Wen, the Judge allowed an amendment of para 7 of the Petition by deleting the erroneous phrase “and no application to set it[5] aside is outstanding”.  The costs of and occasioned by the amendment were awarded to Ms Leung and the Officer Receiver against Mr Wen (Judgment, [50]). 

30.  The amendment had no relevance to the bankruptcy proceedings because the second Statutory Demand was not relied upon.  The costs awarded to Ms Leung were not assessed.  Given that she was unrepresented and it was a minor amendment to correct the erroneous averment that there was no outstanding set aside application in respect of the second Statutory Demand, it is highly unlikely that such costs could constitute a sufficient answer to the Petition.  We are unable to see the unliquidated costs order as a valid ground of appeal against the Bankruptcy Order. 

Ground (2)

31.  The Judge dealt with the confidential issue raised by Ms Leung in [53] of the Judgment.  We note that the confidentiality clause[6] in the commission agreement relied upon by Ms Leung excluded from its application any information which was required by law to be disclosed.  Ms Leung was under order by the court below to provide the “confidential information”.  We see no merit in this ground.

Grounds (3)  to (5)

32.  We see no relevance in the matters raised in these grounds.  The Action was struck out some time ago and Ms Leung had exhausted her avenue of appeal.  In respect of the BVI court judgment, it was not an action to which Ms Leung was a party.

33.  It should be pointed out that the Judge had considered Ms Leung’s claim under the Action.  The commission agreement she relied upon was not made with Mr Wen, but with China AgriTrade Investment (BVI)  Ltd instead.  There was no mutuality between her claim under the agreement and the outstanding costs owed to Mr Wen.  The Judge took the view that Ms Leung had not been able to substantiate any valid cross-claim against Mr Wen (Judgment, [56]-[60]).  We see no error in the analysis of the Judge. 

Ground (6)

34.  It is ignored as unintelligible.

Ground (7)

35.  We are unable to agree that the Judge did not properly consider the materials presented under the four Summonses.  Quite the contrary, the Judge had gone to some length in dealing with such materials a good deal of which he found to be unintelligible.  There is no merit in this ground.

Discussion on 2^nd Appeal and Extension Summons

36.  This appeal is plainly misconceived.  Chow J was right that no judicial review could lie against the Judgment or the related Orders made by G Lam J. 

37.  We also agree with Chow J that in the absence of an arguable appeal, no useful purpose would be served by an extension of time.

Disposition

38.  For the above reasons, the 1^st and 2^nd Appeals as well as the Extension Summons are dismissed with costs to Mr Wen.  Costs are also awarded to Mr Wen in respect of the five Summonses for new evidence.