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HCA 458/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO. 458 OF 2013
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BETWEEN
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WONG YUEN HAN |
1st Plaintiff |
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STEVEN CHAN |
2nd Plaintiff |
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and
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WONG SHING CHUNG |
1st Defendant |
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WONG SHING KAN |
2nd Defendant |
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TSANG LAI PING |
3rd Defendant |
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TAI YUET HANG |
4th Defendant |
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| Before: Deputy High Court Judge Leung in Chambers |
| Date of Hearing: 20 March 2014 |
| Date of Decision: 24 March 2014 |
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D E C I S I O N
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1. Both sides of this litigation have taken out striking out applications, which were heard by the master. The plaintiffs failed whereas the defendants succeeded. This is the plaintiffs’ appeal.
BACKGROUND
2. The parties are members of the family of Wong, the father, and Madam Au Yeung, the mother. The 1st plaintiff (“P1”) is the eldest daughter. The 2nd Plaintiff (“P2”) is her husband. The 1st defendant (“D1”) and the 2nd defendant (“D2”) are her brothers. The 3rd defendant (“D3”) and the 4th defendant (“D4”) are respectively the wife of D1 and D2.
3. The father and the mother passed away in Hong Kong in 1995 and 2003 respectively. The father died intestate; and the mother, then surviving, was granted the Letter of Administration of the father’s estate. When the mother later died, she left a will whereby she appointed D1 as the executor. D1 was accordingly granted probate.
4. In a nutshell, plaintiffs now claim against the defendants for mismanagement and misappropriation of the estate of the father and the mother. They seek account and enquiries as well as damages and costs against the defendants. P1 does so in her capacity as the beneficiary of the estate of her parents. The defendants by pleading set out their versions of events. Suffice it to say that there is substantial factual dispute in respect of what happened to the estate and how they happened over the past years[1].
5. The plaintiffs started by seeking injunction against the defendants; and in fact attempted that twice in March and April 2013 respectively. Both were dismissed by the court.
6. By summons dated 29 July 2013, the plaintiffs applied to strike out the defence of D1 and D3. D1 and D3 then took out their summons dated 4 October 2013 applying to strike out and dismiss the action by P2 against them. D2 and D4 also took out a similar application by summons, which was filed on 21 October 2013.
7. The above summonses came before the master, who gave directions for the filing of affidavit evidence and adjourned the argument to another day.
8. On 8 November 2013, the plaintiffs purported to file a “revised summons” without leave of the court, which was duly pointed out by the Registry.
9. On 13 November 2013, the plaintiffs took out another summons seeking to “dismiss and/or invalidate” the striking out applications of D2 and D4.
10. Subsequently D2 and D4 took out another summons for security for costs against the plaintiffs.
11. The above summonses respectively taken out by the plaintiffs and the defendants came before Master J Wong on 8 January 2013. After hearing both sides, the master made the following directions and orders:
(1) The summons by D2 and D4 for security for costs recently filed was adjourned for argument coupled with directions for the filing of affidavit evidence.
(2) The summonses by the plaintiffs were dismissed with costs.
(3) The respective applications by the defendants to strike out P2’s claim were allowed; and his action was dismissed with costs.
(4) All costs were awarded with certificate for counsel and assessed summarily.
12. By notice of appeal dated 22 January 2014, the plaintiffs appeal against the above decision of the master. Hence this hearing.
13. On 12 March 2014, the plaintiffs filed a “joint” affirmation in support of the appeal.
DISCUSSION
14. Whilst the plaintiffs are obviously appealing against the master’s decision on 8 January 2014, they stated in the notice of appeal that they would only “file” the order being appealed against and the order being sought on appeal after receipt of the master’s “written decision”.
15. The fact was that the master orally delivered the decision and reasons as well as gave the order at the end of the hearing on 8 January 2014. Transcript of the decision was produced.
16. Strictly the notice of appeal is defective. Nevertheless I proceed on the basis that the plaintiffs are appealing against the order of the master in respect of the parties’ respective striking out applications[2].
The plaintiffs’ further affirmation
17. As an appeal from the master pursuant to O.58 of the Rules of the High Court (“RHC”), this is a re-hearing of the parties’ respective summonses.
18. O.58, r.1(5) provides that no further evidence (other than that of matter occurring after the date on which the order was made) may be received on the hearing of an appeal under this rule except on special grounds. For the special grounds, one refers to the requirements set out in Ladd v Marshall [1954] 1 WLR 1489:
(1) The evidence could not have been obtained with reasonable diligence for use in the hearing below.
(2) The evidence must be such that, if given, it would probably have an important, though not decisive, influence on the outcome of the case.
(3) The evidence must be such as is presumably to be believed.
See also Hong Kong Civil Procedure 2014 (Vol.1) at 58/1/3.
19. The plaintiffs have not explained by way of affidavit matters that would satisfy the above requirements for the “joint” affirmation recently filed to be received as evidence for the present appeal. As far as the same contains evidence, it must be disregarded.
20. In court, P2 confirmed that he only intended to rely on their recent affirmation as submission. I am prepared to consider the content of that affirmation to that extent only.
Principles for striking out
21. It is the burden of the applying party to satisfy the court that the opponent’s pleaded case is clearly and obviously liable to be struck out on one of the grounds set out in O.18, r.19 of the RHC:
(1) It discloses no reasonable cause of action.
(2) It is scandalous, frivolous or vexatious.
(3) It may prejudice, embarrass or delay the fair trial of the action.
(4) It is otherwise an abuse of process of the court.
22. In considering ground (1), only the pleading will be considered. As to the others, affidavit evidence will be considered.
The plaintiffs’ applications
23. What the pleadings of the defendants raise is substantial factual dispute. The pleadings of the defendants can hardly be categorised as disclosing no reasonable defence, which is fact-sensitive. Considering the allegations made in the affirmations, I take the same view as that of the master that a clear and obvious case for striking out the defence is simply not made out. Subject to the consideration of P2’s claim below, the dispute could not be resolved without trial.
The defendants’ applications
24. This formed the major argument advanced during the present hearing.
25. The defendants basically pointed out that P2 has no locus standi in P1’s claim; and no cause of action recognisable under the law has been pleaded by P2 himself against any of the defendants.
26. The only reference to P2 in the pleading relates to certain events involving him. All considered, they do not give rise to any cause of action in P2 himself against any of the defendants. No reasonable cause of action is disclosed. As far as the parents’ estate is concerned, P1 but not P2 has right or beneficial interest that may give rise to a right to claim against the defendants in connection with the administration of the estate.
27. It was argued that that P2 remains in the action as a party would add nothing to the claim against the defendants; and therefore the defendants would not be prejudiced.
28. Such argument works against P2, as the same highlights P2’s lack of a cause of action and his lack of interest in P1’s cause of action so as to enable P2 to become a party in this action.
29. The plaintiffs referred to the California State Community Law and argued that P2 should also be entitled to his wife’s interest in the estate in question. This, they argued, should be recognised by the Hong Kong court and thus affording P2 the locus as a plaintiff in this action. They also referred to Hague Convention, the Basic Law and the Hong Kong Bill of Rights Ordinance in their arguments.
30. Considering all, I simply do not see how the abovementioned Californian law could possibly be relevant to the plaintiffs’ purpose in the court here. That the plaintiffs are husband and wife as well as residents of California is neither here nor there. Nor do I see how the international convention and constitutional statutes could possibly be relevant to the resolution of the dispute between the parties in the action.
31. It was also argued by P1 that P2 is more capable than her to conduct the case and thus his presence is necessary to ensure justice. They referred to the provisions for joinder of parties under O.15, r.6.
32. No doubt P1 has the liberty to enlist the assistance of P2, and indeed any person, in the conduct of proceedings. However that did not give P2, or anyone who assists her, the right to be joined as a party. P1 then added that P2, as her assistant and not a party, would have no right of audience in court. That is indeed true; yet never a justification for adding him as a party in the action. This is simply nowhere akin to the circumstances stipulated under O.15, r.6(2).
33. On the basis of the materials before the master and considering the parties’ submissions, including the extent to which the plaintiffs’ recent affirmation could be taken into account, I am of the view that the appeal is devoid of merits.
Others
34. The plaintiffs criticised the master in:
(1) failing to observe the internationally accepted protocols for impartial administration of justice;
(2) failing to give fair and reasonable time for them to present their case; and
(3) pre-determining the applications in breach of due process.
35. As discussed, and considering the previous court directions as well as the transcript of the hearing before the master, I could not subscribe to the plaintiffs’ criticism at all. Escalating their disagreement, and possibly discontent, with the master’s decision to such criticism is unfortunate.
36. In any event, as mentioned from the outset, this is the re-hearing of the parties’ striking out applications. The court is entitled but not obliged to take into account the master’s reasoning. Nor is the court considering the appeal on the basis of whether the master erred as alleged.
ORDER
37. The appeal is dismissed. Following such event, the defendants should have the costs of and occasioned by this appeal. I will assess the costs summarily. D1 and D3 have submitted the statement of costs. D2 and D4 shall do the same within 7 days. The plaintiffs shall submit any comment on the statements of costs of the defendants within 7 days of receipt of the same. Assessment by the court of such costs on paper will follow.
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(Simon Leung)
Deputy High Court Judge
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The 1st and the 2nd plaintiffs, in person
Mr Joseph LEE, instructed by Messrs Edmund W H Chow & Co for the 1st and the 3rd defendants
Mr Devin SIO, instructed by Messrs Lo & Co for the 2nd and the 4th defendants
[1] Counsel for D1 and D3 has annexed to the written submission his summary of the dispute.
[2] The decision of the master to adjourn the application of D2 and D4 for security for costs for argument and the incidental directions for the filing of affidavit evidence was not argued by the parties in the present hearing. In any event, they were matters of case management which the master was entitled to and did properly make in the circumstances.
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