TSUEI SHENG CHEN AND ANOTHER v. TSUEI KA YEE GRACE

HCA 3388/2016

[2019] HKCFI 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3388 OF 2016

________________________

________________________

________________________

REASONS FOR DECISION

________________________

1.  The 1^st plaintiff (“Father”) and the 2^nd plaintiff (“Mother”) (collectively, “Parents”) were the parents of a daughter Joyce, a son Simon and another daughter Grace who is the defendant (“D”). The Parents were/are the registered owners of a property known as Flat C, 8^th Floor, Miami Mansion, Nos 13 and 15 Cleveland Street, Hong Kong (“Property”).

2.  In the present action, the Parents sued D for the following reliefs:

(a)	an order to evict D from the Property and to require D to deliver vacant possession of the Property to the Parents within a reasonable period of time as the court would direct;
(b)	an injunction to restrain D, whether by herself or by her agents and/or representatives or otherwise from (i) assaulting, intimidating, threatening the Father and/or Mother, directly or indirectly contacting the Father and/or the Mother except through the Parents’ solicitors, and/or engaging in any of the above/other conduct which would reasonably cause the Father and/or Mother to be concerned about the personal safety and well-being of one or both of them, (ii) interfering with the possession, use, occupation and/or enjoyment of the Property or any part thereof by the Father and/or Mother, and (iii) entering or using the Property (or any part thereof) without the consent of the Father and/or Mother;
(c)	damages for trespass to person;
(d)	damages for wrongful occupation of the Property;
(e)	interest, costs and further/other relief.

3.  On 28 February 2018, the Parents filed a summons for summary judgment in respect of the following reliefs (“Parents’ Summons”): (a) a declaration that the Parents are the legal and beneficial owners of the Property, and (b) an order that D do deliver vacant possession of the Property to the Parents within a reasonable period of time as the court would think fit, with costs to be paid by D to the Parents. At the hearing of the Parents’ Summons on 29 November 2018, the Parents decided not to seek the relief in (a) above by way of application for summary judgment.

4.  On 10 May 2018, D filed a summons to strike out the Parents’ Statement of Claim and to dismiss their claims in the present action (“D’s Summons”).

5.  On 14 November 2018, D filed a summons for leave to adduce her further affidavit deposed on the same day in support of D’s Summons (“Leave Summons”).

6.  On 21 December 2018, I handed down written judgment as follows (“Judgment”):

   (a)   in respect of the Parents’ Summons, I granted an order that D shall deliver vacant possession of the Property to the Parents within 35 days from the date of the order under the Judgment with costs order nisi that D shall pay the Parents’ costs of and occasioned by the Parents’ Summons (including all costs reserved if any) to be taxed forthwith if not agreed (“O14 Order”);

   (b)   in respect of D’s Summons, I dismissed such summons with costs order nisi that D shall pay the Parents’ costs of and occasioned by D’s Summons (including all costs reserved if any) to be taxed forthwith if not agreed (“Refusal to Strike Out Order”); and

   (c)   in respect of the Leave Summons, I dismissed such summons with costs order nisi that D shall pay the Parents’ costs of and occasioned by such summons to be taxed forthwith if not agreed (“Refusal of Leave Order”).

7.  By now, the costs orders nisi in paragraph 6(a)-(c) above had become absolute.

8.  On 4 January 2019, D filed a summons for leave to appeal in respect of the “strike out” decision (“Appeal Summons”). On the same day, D filed an affirmation in support of the Appeal Summons (“D’s 4/1/19 Aff”). The Appeal Summons was scheduled to be heard by this court on 25 February 2019 at 2:30pm (“25/2/19 Hearing”).

9.  In D’s 4/1/19 Aff, D (a) stated that “[if] there are disputes of facts between the parties, the proper venue for resolution of those contradictions and disputes is trial” (see paragraph 88 of the Judgment), but the present action had not yet proceeded to trial, and (b) urged the court to “postpone the judgment regarding “strike out” till the end of the trial. Let us know when the trial takes place”. At a further hearing on 30 January 2019 (“30/1/19 Hearing”), D confirmed that the “strike out” decision mentioned in the Appeal Summons referred to the Refusal to Strike Out Order.

10.  On 8 January 2019, D filed a summons seeking an order to vacate the 25/2/19 Hearing in respect of the Appeal Summons with no order as to costs of the application (“Vacate Summons”). The Vacate Summons was heard by this court at the 30/1/19 Hearing when D confirmed that the application made by way of the Vacate Summons was to vacate the 25/2/19 Hearing, but not to withdraw or abandon the Appeal Summons itself. After hearing submissions from D and Mr Chok, counsel for the Parents, at the 30/1/19 Hearing, I dismissed the Vacate Summons and delivered oral reasons which have been summarised in paragraphs 14-16 of my Decision handed down on 14 February 2019 in relation to D’s other application (“Decision”).

11.  The Appeal Summons came before me for hearing at the 25/2/19 Hearing. However, D delivered or arranged for delivery of a letter dated 23 February 2019 to the court (received in the morning of 25 February 2019 by hand delivery) as follows: “I write to vacate “the leave to appeal” in relate to “the strike out of HCA3388/2016”. There is no ground for appeal at present. The hearing is scheduled on 25^th February, 2019 at 2:30pm. There be no order as to costs of this application” (“Vacate Letter”).

12.  D did not appear at the 25/2/19 Hearing. After hearing submissions from Mr Chok, I dismissed the Appeal Summons and ordered D to pay the Parents costs of and occasioned by the Appeal Summons (including all costs reserved if any) to be taxed forthwith if not agreed. I reserved my reasons for decision which I now hand down. For convenience, I shall adopt herein the abbreviations in the Judgment and Decision.

13.  At the outset, I must say there was no justifiable reason to support the application by way of the Vacate Letter. It was unclear from the Vacate Letter whether D intended to merely vacate the 25/2/19 Hearing or to withdraw or abandon the Appeal Summons. As explained in paragraph 10 above, by the dismissal of the Vacate Summons, I have found there was no sustainable ground to vacate the 25/2/19 Hearing and to adjourn the Appeal Summons. There had been no change of circumstances since then, and D was not entitled to have a second bite of the cherry. Even if D intended to withdraw or abandon the Appeal Summons, as will be seen in the discussion below, such summons had no merit and there was no reason why this court should accede to the costs order proposed in the Vacate Letter, especially when D’s proposal in the Vacate Letter was made far too late, ie on the eve of the 25/2/19 Hearing and after Mr Chok had lodged his written submissions.

14.  Under section 14AA(4) of the High Court Ordinance Cap 4, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. In SMSE v KL,[1] Le Pichon JA pointed out such leave to appeal is not lightly granted. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (p 129). Chu J (as she then was) explained in Wynn Resorts (Macau) SA v Mong Henry[2] that to meet the “reasonable prospect of success” test, an applicant is required to show more than just an arguable case, ie an appeal that has merits and ought to be heard although he does not have to demonstrate that the appeal will probably succeed.

15.  Further, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion.[3]

16.  A refusal to strike out claim/pleadings is an exercise of discretion.[4] The function of the appellate court on appeal against an exercise of discretion is not to exercise the discretion afresh, but will only interfere with the decision if the appellant can show that the discretion was wrongly exercised on principle or had taken into account irrelevant consideration or had ignored relevant consideration.[5] The intended appellant is required to show there is an arguable case with reasonable prospect of success that the relevant decision “exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong ……”[6]

17.  By the O14 Order, I have granted summary judgment in respect of the relief in paragraph 2(a) above on the basis that D had no arguable defence or triable issue. The discussions and analysis were set out in Part VI of the Judgment, which I adopt but will not repeat here. D had lodged appeal against the O14 Order to the Court of Appeal (see paragraph 12 of the Decision), but in paragraphs 30-41 of the Decision I have concluded that the grounds in the Notice of Appeal or as put forward in D’s submissions at the 30/1/19 Hearing did not amount to any arguable appeal with reasonable prospect of success. I adopt such discussions and analysis but will not repeat them here. On such basis, I am unable to see how there would be any reasonable prospect for appeal against refusal to strike out the Parent’s claim in relation to the relief in paragraph 2(a) above.

18.  As regards the remaining parts of the Parents’ claims in relation to the reliefs sought in paragraphs 2(b)-(e) above, in the Judgment I have concluded that at this stage of the proceedings the Parents clearly had causes of action with some chance of success, and given the grant of the Ex Parte and Continued Injunctions and the refusal by Mimmie Chan J to discharge the Continued Injunction, the Parents had demonstrated a serious question to be tried. I have also found there was no basis to suggest the Parents’ claim was scandalous, frivolous or vexatious, or it might prejudice, embarrass or delay the fair trial of the action, or it was otherwise an abuse of process. More importantly, it appeared there were myriad disputes of fact between the parties as evident from the discussions and analysis in Part VII of the Judgment. In paragraph 88 of the Judgment, I explained that where there were serious disputes of fact between the parties that could not be resolved on affidavit evidence,[7] they must be resolved at trial upon assessment of witness veracity and documentary evidence. Here, the vitality and reliability of the allegations and counter- allegations made by the parties turned on their veracity and credibility, so I have found this was not a plain and obvious case for striking out the Parents’ claims.

19.  Indeed, D seemed to acknowledge this because in D’s 4/1/19 Aff she referred to what I said in paragraph 88 of the Judgment, ie “[if] there are disputes of facts between the parties, the proper venue for resolution of those contradictions and disputes is trial”, and urged the court to postpone the judgment regarding “strike out” till the end of trial and asked the court to let her know “when the trial takes place”. In my view, this was a plain recognition that the Parents’ claims (apart from the claim for the O14 Order) ought not be struck out at this stage of the proceedings, and that such remaining claims should proceed to trial. There was no arguable basis to postpone D’s Summons to the trial because the trial itself would render D’s Summons (which application was to strike out the Parents’ claims and prevent them from being tried at the trial) quite meaningless. In any event, as explained in the Judgment, the fact there were disputes of fact would not negate the Parents’ remaining causes of action against D. Rather, it showed that the factual disputes should be resolved at the trial and not arrested by a striking out application.

20.  I see no arguable merit or reasonable prospect in the proposed appeal against the Refusal to Strike Out Order, the effect of which was not to strike out the Parents’ remaining claims but to allow such claims to proceed to trial. Indeed, by the Vacate Letter, D appeared to acknowledge “[there] is no ground for appeal at present”. I also do not see any basis for granting leave to appeal in the interests of justice as D’s intended appeal did not raise any novel point of importance upon which further argument and decision of the Court of Appeal would be to the public advantage.

21.  In the circumstances, at the 25/2/19 Hearing, I dismissed the Appeal Summons. There is no reason why costs should not follow event, so I have granted the costs order set out in paragraph 12 above.