WONG YUK TUNG v. WONG PO LING (also known as WONG PO LING CLARA)

HCA 899/2012

[2021] HKCFI 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 899 OF 2012

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D E C I S I O N

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1.  In this decision, unless otherwise stated, I shall continue to use the definitions and abbreviations adopted in the reasoned judgment that I handed down after trial in this action on 30 September 2016 (“Judgment”).

2.  To recap, I gave judgment for Father (the plaintiff) on his claims against Clara (the 1^st defendant) and the Company (the 2^nd defendant), of which Clara has always been the sole shareholder and director, as follows:

(1)     that Clara should account for the Kam Fai Proceeds;

(2)     that Clara and the Company (“defendants” collectively) should account for the St Louis Flat 1D Proceeds;

(3)     that the defendants should pay Father the sums found to be due on the taking of such accounts; and

(4)     that the Company should transfer St Louis Flat 25C to Father.

3.  The defendants had applied to the Court of Appeal under HCMP 620/2017 for (1) leave to appeal against the Judgment out of time and (2) stay of execution of the Judgment pending the intended appeal.  On 28 February 2018, the Court of Appeal (Yuen JA and Poon JA as the Chief Judge of the High Court then was) dismissed the defendants’ application on paper.

4.  Upon the Court of Appeal’s dismissal of the defendants’ application on paper as aforesaid, the defendants applied for reconsideration of their application by way of oral hearing before the Court of Appeal.  This was again met with dismissal by the Court of Appeal on 11 September 2018.

5.  In the meantime, as neither of the defendants had taken any step to satisfy any part of the Judgment, by summons issued on 27 April 2018, Father applied for:

(1)     directions for the taking of the accounts for the Kam Fai Proceeds and the St Louis Flat 1D Proceeds; and

(2)     an order that the Company do execute an assignment of all its rights and interests in St Louis Flat 25C to Father absolutely within 28 days.

6.  In response, the defendants had by Clara’s affirmation filed on 13 June 2018 “applied” for a stay of execution of, or all further proceedings on, the Judgment pending:

(1) the defendants’ appeal from the Judgment (in that the Court of Appeal was then yet to rule on the defendants’ application on 28 August 2018 for reconsideration of the dismissal of the defendants’ application for leave to appeal against the Judgment out of time); and

(2) the determination of DCMP 878/2018 (which was commenced by SCB on 23 March 2018 against the Company as borrower and mortgagor and against Clara as guarantor for payment of all principal and interests outstanding on the loan with which St Louis Flat 25C was acquired and which stood at HK$885,593.05 as at 19 April 2018 and for delivery of vacant possession of St Louis Flat 25C). 

7.  By a decision handed down on 27 June 2018 (“27.6.2018 Decision”), I dismissed the defendants’ application for stay pending their appeal from the Judgment and adjourned Father’s application relating to St Louis Flat 25C sine die to enable Father to be advised of, and consider, whether he should as beneficial owner of St Louis Flat 25C take any step in respect of DCMP 878/2018.  I further gave the following 2 sets of identical directions for the taking of the accounts of the Kam Fai Proceeds and the St Louis Flat 1D Proceeds (“Accounts Directions”):

(1)	(a)     that Clara shall file with the court and serve on Father’s solicitors an account of the Kam Fai Proceeds as well as an affirmation verifying the account and exhibiting supporting documents within 60 days from the date of the 27.6.2018 Decision (which expired on 27 August 2018);
	(b)     that Father shall file with the court and serve on Clara his list of objections to the account (if any) and the grounds therefor by affirmation exhibiting supporting documents (if any) within 28 days thereafter;
	(c)     that Clara should file with the court and serve on Father’s solicitors her response to the list of objections (if any) by affirmation exhibiting supporting documents (if any) within 28 days thereafter;
	(d)     that there should be no further affirmation without leave of the court, the application for which must be supported by a draft of the further affirmation sought to be adduced;
	(e)     that the account should be taken before a Master;
	(f)     that any application for further directions should be made to the Master; and
(2)	(a)     that Clara shall file with the court and serve on Father’s solicitors an account of the St Louis Flat 1D Proceeds as well as an affirmation verifying the account and exhibiting supporting documents within 60 days from the date of the 27.6.2018 Decision (which expired on 27 August 2018);
	(b)     that Father shall file with the court and serve on Clara his list of objections to the account (if any) and the grounds therefor by affirmation exhibiting supporting documents (if any) within 28 days thereafter;
	(c)     that Clara should file with the court and serve on Father’s solicitors her response to the list of objections (if any) by affirmation exhibiting supporting documents (if any) within 28 days thereafter;
	(d)     that there should be no further affirmation without leave of the court, the application for which must be supported by a draft of the further affirmation sought to be adduced;
	(e)     that the account should be taken before a Master;
	(f)     that any application for further directions should be made to the Master.

8.  It is unnecessary for me to recount the tortuous procedural history after the 27.6.2018 Decision save that (1) both the defendants had failed to file or serve any account of, or verifying affirmation in relation to, either the Kam Fai Proceeds or the St Louis Flat 1D Proceeds and (2) with leave of the court, Father had issued an originating summons in HCMP 129/2019 (“Committal Proceedings”) on 28 January 2019 for the committal of Clara to prison for non-compliance with paragraphs 1(a) and (2)(a) of the Accounts Directions.  The Committal Proceedings were heard on 30 August 2019 and dismissed for reasons concerning service by my judgment dated 24 November 2020 (“Committal Judgment”).  By the Committal Judgment, I also extended the time for the defendants to comply with the Accounts Directions to 23 January 2021, being 60 days from the date of the Committal Judgment.

9.  The defendants have since purported to comply with paragraphs 1(a) and 2(a) of the Accounts Directions by Clara’s 4^th affirmation filed herein on 14 January 2021.  They have further filed Clara’s 5^th affirmation on 9 March 2021 in purported compliance with paragraphs 1(c) and (2)(c) of the Accounts Directions.

10.  In the meantime, on 16 December 2020, Clara issued a notice of appeal under CACV 643/2020, by which she sought to set aside the Accounts Directions under the 27.6.2018 Decision and the extension of time for compliance with such directions under the Committal Judgment.

11.  By a letter dated 18 January 2021, the Registrar of Civil Appeals informed Clara, amongst other things, that the time limit to appeal against the 27.6.2018 Decision had long expired and that she should have sought an extension of time to appeal against the same.  By the Registrar’s letter dated 19 March 2021, Clara was further advised, amongst other things, that she should have taken appropriate steps in this action if she intends to appeal against the 27.6.2018 Decision.

12.  Against this procedural background, before the court now is Clara’s application by summons issued on 25 March 2021 for an extension of time to lodge an appeal to set aside the 27.6.2018 Decision (“Application”).  As Clara required leave to appeal under s 14AA of the High Court Ordinance (Cap 4), I shall treat the Application as one to extend time for an application for leave to appeal against the 27.6.2018 Decision.

13.  I shall dismiss the Application for the following reasons.

14.  First, the time for Clara to apply for leave to appeal against the 27.6.2018 Decision expired on 11 July 2018.  The summons by which the Application was made was not issued until 25 March 2021.  That is to say, Clara has been out of time for 2 years and 257 days, which is on any view an extremely serious delay.

15.  Second, such serious delay is also inexcusable. According to Clara, she had otherwise devoted her time to the defence of the Committal Proceedings, the compliance with paragraphs 1(a), (c), (2)(a) and (c) of the Accounts Direction and the pursuit of CACV 643/2020.  She made the Application as soon as she learnt of the leave requirement.  I am not persuaded by such excuse. 

(1)     Litigants in persons are expected to comply with the same practice and procedure as other users of the court.  Although a party acting in person does not have the benefit of paid legal advice and representation, they should make all reasonable enquiries necessary to ascertain the appropriate procedure for the next step that he intends to take so as not to jeopardise the timely progress of the cause or matter.

(2)     In this case, Clara had given no indication whatsoever that she wished to challenge the 27.6.2018 Decision until she filed the notice of appeal under CACV 643/2020 on 16 December 2020.  What had she done in the 2 years and 5 months between 27 June 2018 and 16 December 2020?

(3)     Clara specifically mentioned the Committal Proceedings.  The originating summons by which such proceedings were commenced was issued on 28 January 2019.  There is no explanation by Clara as to what she had done between 27 June 2018 and 28 January 2019. 

(4)     The Committal Proceedings were heard on 30 August 2019 and disposed of on 24 November 2020.  While judgment was being reserved, the parties were not required to do anything but wait.  Clara is silent as to that period of time when she did not have to deal with the defence of the Committal Proceedings, the performance of paragraphs 1(a), (c), (2)(a) and (c) of the Accounts Direction or the pursuit of CACV 643/2020.

16.  Third and most importantly, Clara’s proposed grounds of appeal are utterly devoid of merits.

17.  In support of the Application, by way of proposed grounds of appeal, Clara complained in her 6^th affirmation filed on 25 March 2021[1] that I gave leave to Father to amend the statement of claim in the course of the trial on 8 September 2015 after completion of the evidence.  Clara contends, firstly, that in granting Father leave to amend, I had departed from Order 20, rule 8(1A) of the Rules of the High Court (Cap 4A) which prevents the court from ordering a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.  Second, Clara suggests that the amended statement of claim filed on 9 September 2015, upon which the Judgment and the 27.6.2018 Decision were based, was different from the original statement of claim.  Yet, none of the parties or their witnesses had been cross-examined on the amended statement of claim.  A trial on the amended statement of claim therefore never occurred.

18.  As stated in [13] to [15] of the Judgment, after the transfer by Father, Mother, Agnes and Clara mortgaged the Kam Fai Properties for the SPC Loan in the amount of HKD2,000,000.  It was common ground that a sum of HKD1,008,655.74 out of the SPC Loan was applied to redeem the prior encumbrance(s) against the Kam Fai Properties.  What was in issue relating to the SPC Loan was who had received the balance of HKD991,344.26. 

19.  The only amendment made by Father to the statement of claim was the addition of the words “part of” at the beginning of paragraph 32(2) concerning the application of the SPC Loan.  Such change was to clarify that only a part of the SPC Loan was used to discharge the prior encumbrance(s) against the Kam Fai Properties, which fact was not even in dispute.  As I see it, such amendment reflected the correct position about the SPC Loan and was, thus, necessary for the fair disposal of this action.

20.  Incidentally, I note from [21] to [27] of the Court of Appeal’s judgment dated 28 February 2018 in HCMP 620/2017 that Clara had not raised any ground of appeal out of the amendment of the statement of claim in her proposed appeal against the Judgment.

21.  Last but not least, I strongly disagree with Clara that Father would not be prejudiced by the extension of time sought by the Application.  Father is of an advanced age.  His personal financial circumstance cannot be described as comfortable.  He is legally aided.  He started this action almost a decade ago.  He obtained judgment to the Kam Fai Proceeds, the St Louis Flat 1D Proceeds and St Louis Flat 25C almost 5 years ago.  Yet, he has not so far made any recovery in the real sense of the word.  This is a true case of “justice delayed is justice not done”.

22.  For the above reasons, I dismiss the Application. 

23.  I further make an order nisi that Clara should pay Father’s costs of and occasioned by the Application, to be taxed if not agreed on an indemnity basis.  In my view, the Application, viewed in the light of Clara’s litigation behaviour, is an abuse of the court’s process.  Pursuant to Order 42, rule 5B(6), such order shall become absolute within 14 days after today unless an application has been made to vary the same.

24.  Father’s own costs shall be taxed in accordance with the Legal Aid Regulations (Cap 91A).

[1] Which is said to have been made also on behalf of the Company which was, however, not mentioned as an applicant on the summons dated 25 March 2021.