KWONG YIN v. NG KE TEE AND OTHERS

HCA2349/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2349 OF 2007

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D E C I S I O N

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1. I have a somewhat unusual application before me this morning.  The plaintiff in these proceedings is a 90-year-old lady.  The plaintiff has 11 children.  The 1st defendant in these proceedings was married to Mr Chan Fu-yuen who was the sixth child of the plaintiff, in about 1970.  Mr Chan passed away in 1996.  He died intestate.  The 2nd and 3rd defendants are the children of the 1st defendant and the deceased Mr Chan. 

2. This action concerns the beneficial ownership of the property known as Flat H on 14th Floor, Pak Hee Court, Bedford Gardens, Tin Hau Temple Road. 

3. In 1983, the property was conveyed to the deceased. Upon Mr Chan's demise, the 1st defendant became the sole administratrix of his estate and by an assent in 1999, the property was conveyed into the names of the 1st, 2nd and 3rd defendants as tenants in common. 

4. The present action was commenced on 7 November 2007.  Pleadings have been filed and are now closed.  These proceedings in the High Court were, in fact, precipitated by proceedings in the District Court where the defendants in the High Court action were plaintiffs.  Those proceedings in the District Court were taken out by the defendants herein against the siblings of the deceased for possession and other relief concerning this same property. 

5. In the High Court action, on 14 March 2008, the defendants took out an application to have the plaintiff's pleadings struck out and the action dismissed.  In that application, the defendants also asked for summary judgment to be entered on their counter-claim.  That application was fixed to be heard by a judge on 11 July later this year. 

6. One of the grounds of the defendants’ application to strike out is that the proceedings in this High Court action have been issued and conducted without the authority of the plaintiff. 

7. On 9 May 2008, the defendants took out another summons applying for an order that the plaintiff should attend the hearing on 11 July for cross-examination.  It is apparent that the intended cross-examination will be concerned with the question of authority to issue these proceedings and to continue with them.   Only the second summons is before me today.

8. The defendants contend that in order to resolve the question of authority, there are issues of fact which cannot be determined on affidavit evidence alone.  The defendants said that cross-examination of the plaintiff is therefore required and, hence, this second summons.  The evidence in support of the contention that the plaintiff might not have given authority to the solicitors to issue and continue with these proceedings in the High Court is a taped conversation which the 1st defendant had with the plaintiff on 31 January 2008.  A transcript of part of that conversation has been put in evidence and is available to this court.

9. Undoubtedly certain parts, or certain answers of the plaintiff in that taped conversation may suggest that the plaintiff might not have knowledge of the proceedings and, on the basis of such evidence, the defendants took out the application to strike out the present action. 

10. On the other hand, in order to counter the allegation of want of authority, the plaintiff had herself put in an affirmation affirmed on 17 March 2008.  This affirmation was made three days after the strikeout summons was issued.  In paragraphs 12 and 13 of the plaintiff's affirmation, she categorically affirmed that authority had been given to her solicitors in respect of the present High Court action.  This is what she said:

"Paragraph 12:

“我授權李偉文律師事務所在高等法院落案控告春蓮、兆芬和志光…”

 Paragraph 13:

         “我謹此確認，該高等法院案是經我清楚授權的情況下才開始及進行的。因為我的健康情況，就此案件，我在委託書已清楚表明我授權我的女兒陳春萍作為聯絡人，以進行此訴訟。”

11. And in that affirmation, at the end, it is noted that the contents of the plaintiff's affirmation had been clearly and audibly explained and interpreted to her by a solicitor. 

12. There is also evidence before me of a medical certificate issued by Dr Stephen Chen dated 17 March 2008.  Dr Chen certified that the plaintiff, who was an elderly lady, had been assessed by him on that day, i.e. 17 March, at 3.30 pm, with regard to her mental state and Dr Chen was of the opinion that the plaintiff was of sound mental state and she still had fairly good retention of her cognitive function, given her age.  Dr Chen's evidence is not subject to challenge by the defendants. 

13. In the course of the argument, Mr Poon for the defendants, pointed out that despite what the plaintiff had said in paragraphs 12 and 13 of her affirmation, she did not produce the letter of authorisation and she had not given an account of how she came to say what she did in the conversation which was taped.  Those may be fair points. 

14. However, in the circumstances of this case and, in particular, what the plaintiff had said in paragraphs 12 and 13 of her affirmation, whatever might have been the position with regard to the question of authority as of the time of 31 January 2008 when the conversation took place, there is nothing to suggest that the plaintiff was not fully aware of what she had affirmed on 17 March or that the contents of her affirmation did not accurately and truly reflect what she had intended to say.  It is true that the plaintiff is an elderly lady. However, in the absence of any medical evidence to challenge or to throw doubt on her ability to appreciate the contents of the affirmation, no issue has been set up as to her ability to do so and I am unable to draw any inference that she might not have appreciated her affirmation on account of her age alone. 

15. Miss Lok has drawn attention to the case of Danish Mercantile Company Limited v Beaumont [1951] 1 All ER 925.  At page 929, Jenkins LJ said the following:

"I find nothing in any of those cases to constrain me to hold that the issue of a writ and the commencing of an action without the authority of the purported plaintiff is a matter which admits of no validation by subsequent ratification of the act of the solicitor concerned.  So to hold would be to introduce, as I see it, an entirely novel doctrine into the ordinary law of principal and agent, and to make a new exception to the general rule that every ratification relates back, and is deemed equivalent, to an antecedent authority."

16. Admittedly, those observations were made in the context of a question concerning the authority of a company.  However, in my view, the same principle must apply where the party is a natural person or an individual.  Therefore, whether or not at time of the commencement of the present High Court action there was authority from the plaintiff, in the light of the plaintiff's affirmation and, in particular, paragraphs 12 and 13, when she affirmed categorically that she had given authority for the commencement and continuance of these proceedings, I am not satisfied that the evidence before me has given rise to an issue of fact regarding the plaintiff's authority to commence and/or continue with these proceedings which requires to be investigated by way of cross-examination of the plaintiff. 

17. It would be wrong, in my view, to allow the defendants to fish for evidence on the question of authority in view of the clear confirmation in paragraphs 12 and 13 of the plaintiff's affirmation. 

18. In the circumstances, the summons dated 9 May 2008 is dismissed. 

(Submissions on costs)

19. Costs be to the plaintiff on this application on party-and-party basis.