RE LEUNG KIT-HING, DORIS

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

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REASONS FOR DECISION

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1.  In this matter, we handed down our judgment on 18 September 2014. For the reasons given in that judgment, we ordered the joinder of the two administratrices of the estate as parties to this appeal. We also made an order directing the Appellant to serve the Notice of Appeal and supplementary Notices of Appeal and all other documents she had filed in the appeal on the two administratrices. That order, carrying with it the sanction of the dismissal of the appeal in case of non-compliance, is a “unless order”. The Appellant was given 14 days to comply with that unless order. This court also directed that the appeal shall be heard in open court.

2.  On 18 and 19 September 2014, the Appellant issued two summonses asking this court to review or reconsider the above decisions.  Although initially directions were given for those summonses to be disposed of on paper, at the request of the Appellant the summonses are subsequently directed to be heard on 17 October.  After hearing the Appellant, we dismissed the summonses and here are our reasons for decision.

3.  We have made our decision in our judgment of 18 September 2014.  As a general rule, the court will not re-open a matter after it had given its judgment.  After the perfection of an order, the court has no jurisdiction to re-open.  Even before the perfection of an order, the court will not entertain an application to re-open a matter unless there are exceptional circumstances.  Finality in legal proceedings is an important consideration.

4.  In the present case, we do not see any exceptional circumstances to warrant us re-visiting our decision.  We have read the documents filed by the Appellant.  In most parts, she simply reiterated her arguments which had duly been considered by us before we gave our decision on 18 September.

5.  At the hearing before us, she relied on the following matters,

(a) Her affidavit of service filed pursuant to the direction of Master Levy which shows that she had served the originating summons on the co-administratrices by ;

(b) She had placed written submissions on such service before the master;

(c) Since the master had no jurisdiction to deal with revocation, she should have directed that the claim for revocation to be deleted or alternatively referred the matter to a judge;

(d) The court could consider her application for having herself being joined as a co-administratrix as a first step and let she consider later whether she would seek revocation. The master could have granted that application due to the non-appearance of the existing co-administratrices;

(e) She had served the notice of appeal against the master’s decision (viz in respect of the appeal to L Chan J.) on the co-administratrices;

(f) She placed before us report to the police concerning the hacking of her telephone.

6.  None of these amounts to exceptional circumstances. In our judgment of 18 September, we had indeed overlooked the affidavit of service of 30 July 2012.  But it is immaterial.  Our reasons for ordering the joinder as we did were set out at paragraphs 12 to 14 of the judgment of 18 September.  Even if the administratices had been served with the proceedings below (including the appeal heard by the Judge), they should have been joined as parties to this appeal by reason of Order 76 Rule 3 and what was said in Re Estate of Cheng Ki Sang [2009] 2 HKLRD 533.  The reasoning of Re Estate of Cheng Ki Sang [2009] 2 HKLRD 533 is equally applicable even if it is an application by the Appellant for adding herself as a co-administratrix because the court will need to endorse such appointment on the grant and the existing co-administratrices are entitled to be heard on the question of the involvement of the Appellant as an additional co-administratrix in the administration of the estate.  

7.  Actually, if the administratrices were already aware of the proceedings below, there is no reason why the appeal should be kept secret from them and there is no reason why they should not be joined as parties to this appeal. Likewise there is no reason why the appeal should not be conducted in open court.

8.  The other points canvassed were primarily points going to the substance of our decision as opposed to circumstances which warranted re-opening of our decision. We cannot see how they would materially affect our decision given our analysis as to the need for joining the existing co-administratrices.

9.  The time for compliance with the unless order was extended at the hearing of 17 October to 31 October.  In other words, the Appellant must comply with the direction for service by 31 October, failing which her appeal shall be dismissed without any further order.

10.  The other summons taken out by the Appellant on 30 September 2014 is misconceived.  Our decision, being an order of interlocutory nature made by two judges, is not amenable to any appeal to the Chief Judge.  The summons is therefore dismissed as an abuse of process.