DCMP 230/2015
[2019] HKDC 643
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 230 OF 2015
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IN THE MATTER OF Section 6 of the Partition Ordinance, Cap 352, Laws of Hong Kong
and
IN THE MATTER OF ALL the estate right title benefit and interest of and in ALL THOSE 7 equal undivided 30,167th parts or shares of and in ALL THAT pieces or parcels of ground registered in the Land Registry as TSUEN WAN TOWN LOT NO. 236 AND THE EXTENSION THERETO And of an in the messuages erections and buildings thereon now known as “ALLWAY GARDENS (荃威花園)”, No. 22 On Yat Street, Tsuen Wan, New Territories, Hong Kong (“the Building”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT 1407 on the FOURTEENTH FLOOR of BLOCK F of the Building
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BETWEEN
FRED LEE and CHOW WAI LAN CHRISTINE, the Joint and Several Trustees-in-Bankruptcy of the property of HSU KIM MING, a Bankrupt
Plaintiff
and
CHUI YUK FEI
Defendant
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Before:
Deputy District Judge Benny Lo in Chambers (Open to Public)
Date of Hearing:
15 February 2019
Date of Decision:
23 May 2019
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DECISION
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Introduction
1. On 17 July 2018, I gave judgment for the plaintiff[1] ordering, inter alia, that the subject property (“Property”) be sold with the net proceeds of sale to be divided between the plaintiff and the defendant in equal shares, after rejecting the defendant’s claim to sole beneficial ownership of the Property on the basis of constructive trust, resulting trust and promissory or proprietary estoppel (“Judgment”)[2] .
2. On 6 November 2018, the defendant applied for leave to appeal against the Judgment out of time. The application is supported by his two affirmations filed on 6 November 2018 (“Chui 1st ”) and 15 November 2018 (“Chui 2nd ”), his skeleton argument dated 26 November 2018 (“Chui’s Skeleton”), his list of authorities dated 3 December 2018 and his oral submissions made at the hearing on 15 February 2019.
Legal principles
3. Section 63A of the District Court Ordinance (Cap 336) provides that:-
“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—
(a) the appeal has a reasonable prospect of success; or
(b) there is some other reason in the interests of justice why the appeal should be heard.”
4. A “reasonable prospect of success” means the prospects of succeeding on appeal must be more than “fanciful”, but without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 per Le Pichon JA at §17.
5. On “some other reason in the interests of justice why the appeal should be heard”, guidance may be sought from HKCP (2019) Vol 1 where the learned editors suggested, at §59/2A/4, that leave may be granted on this limb:-
“… if the question is one of general principle, decided for the first time; or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage.”
6. The court may extend the time for applying for leave to appeal despite the fact that the applicant is late in filing his application: see RDC O 58 r 2(10).
7. In considering whether the time for applying for leave to appeal should be extended, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding and the degree of the prejudice to the other party if the application is granted: see Lee Chick Choi v Best Spirits Co Ltd (unreported) HCMP 371/2015; 21 May 2015 per Kwan JA (as Kwan VP then was) at §19.
8. Furthermore, where a delay is inexcusable, the applicant for leave to appeal faces a higher threshold, namely that he must show a “real prospect of success” and not simply a “reasonable prospect of success” on the merits of the appeal: see Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125 per Le Pichon JA at 129I; HKCP (2019) Vol 1 §59/2A/10.
Delay
9. The defendant’s application for leave to appeal was filed on 6 November 2018. This was over three months after handing down of the Judgment on 17 July 2018 and exceeded the time limit for the application by over two months.
10. Purportedly to explain this period of delay, the defendant deposed on affidavit that:-
(1) He left Hong Kong for a holiday in Mainland China on 22 July 2018 and did not return until around 12 to 13 August 2018. He had not been told of the handing down of the Judgment before leaving for his holiday;
(2) While in Mainland China, he was unable to access his Google email or other communication tools such as WhatsApp;
(3) It was only on 14 August 2018 at 2:22 pm that he was informed by his former solicitors of the handing down of the Judgment, and that was the last day for filing an application for leave to appeal. He immediately instructed his former solicitors to make an application for leave to appeal;
(4) Upon checking with his former solicitors at around 4:42 pm that day, he discovered that the application had not actually been filed. His former solicitors then asked him to meet them at the High Court before 5:00 pm to make the application together. Since he was in Tsuen Wan at that time, it was impossible for him to travel to the High Court within 20 minutes;
(5) At 5:21 pm, he received a call from his former solicitors asking him to appeal at the High Court by himself on the next day. They also sent him a pre-completed court form for making an application for leave to appeal;
(6) On 15 August 2018, he attempted to submit that court form at the High Court but the court clerk told him to consult his solicitors, as the nature of the court form was apparently unknown to the clerk;
(7) After obtaining free legal advice, he applied for legal aid on 21 August 2018. His application was however refused on 29 October 2018;
(8) Upon receiving further advice, he then discovered that his former solicitors prepared the wrong documents for him to apply for leave to appeal, and that he was required to apply for leave before the same trial judge; and
(9) With the assistance of the clerk of the District Court, he eventually filed the present application for leave to appeal on 6 November 2018.
11. In my view, even assuming the defendant’s former solicitors had failed to inform him of the handing down of the Judgment in time and gave him the wrong form for his application (on which I need not make any finding), it is well-established that the fault of the legal representative is not a reason excusing delay: see Tsang Wai Fan v Hui Siu Kwong (unreported) HCMP 409/2016; 12 April 2016 per Chu JA at §23, citing KNM v HTF (unreported) HCMP 288/2011; 7 September 2011 at §18.
12. The fact that the defendant applied for legal aid on 21 August 2018 does not assist him either. By that stage, the defendant had already been late for 7 days, which was not insubstantial. Moreover, according to the reasons for refusal dated 29 October 2018, legal aid was refused as the defendant had failed to furnish the required information and/or documents. That reason for refusal was not disputed by the defendant before me.
13. In the premises, even though Mr Tony Ko, counsel for the plaintiff, did not contend that the plaintiff had suffered any prejudice as a result of the delay, I find that the delay, which was substantial, was not excusable.
14. Given the conclusion aforesaid, in order for leave to appeal be granted, the defendant must demonstrate a real prospect of success on the intended appeal.
Merits of intended appeal
15. The defendant’s intended grounds of appeal have been set out in Chui 1st , Chui 2nd and Chui’s Skeleton, which I consider individually below.
16. The defendant’s first intended ground of appeal is that his former solicitors had failed to submit documents that the court requested at the trial, so that he had to submit the documents himself on 22 August 2017[3] .
17. In fact, what the court requested was further legal submissions (and not documentary evidence) to be lodged after the trial. As to the documents lodged by the defendant on 22 August 2017, upon the court’s enquiry, the defendant’s former solicitors had informed the court, by way of their letter dated 4 December 2017, that:-
“On behalf of our client, we do apologize for causing inconvenience to His Honour and the Honourable Court in respect of our client’s personal letter of 22nd August 2017 sent by him to the Court without our prior knowledge and advice.
We are instructed to, which we hereby do, respectfully ask this Court to return the said letter together with its attachments to us for our further action.”
18. Secondly, the defendant argues that the court had failed to consider the weight, validity, credibility and the reliability of the Notice of Severance, referring particularly to the way Mother signed that notice, her physical and mental condition and that the notice was signed in the absence of a medical doctor[4] .
19. Although it was the defendant’s case that the Notice of Severance was invalid, this was solely premised on his contention that he was the sole beneficial owner of the Property on the basis of resulting trust, constructive trust and/or promissory or proprietary estoppel[5] . The defendant’s evidence and related arguments have been thoroughly considered in the Judgment. In my view, the circumstances in which the Notice of Severance was signed were not in issue at trial, nor could it have affected the outcome in any event.
20. Third, the defendant submits that the court has failed to rule out the credibility of Will by failing to consider Mother’s physical and mental condition and any related medical certificate at the time of the Will’s execution[6] .
21. It is important to note that it was not the defendant’s case that the Will was not duly executed, nor did the defendant seek any relief in relation to the Will in this action[7] . The defendant’s whole case is premised on the beneficial ownership of the Property on the basis of trust and estoppel, which has been thoroughly considered and rejected as the defendant had failed to discharge his burden of proof.
22. Fourth, the defendant takes issue with the court’s findings in relation to the Tenancy Agreement[8] . When the court reminded the defendant that the court in fact ruled in his favour and declared the Tenancy Agreement to be invalid, he then complained that the court had failed to award rent or mesne profits based on the rent as stated on the Tenancy Agreement.
23. As the Amended Counterclaim shows, the only relief sought by the defendant in relation to the Tenancy Agreement was a declaration of its invalidity. He did not counterclaim for rent or mesne profits. I therefore do not think that the court could be said to have erred by failing to award rent or mesne profits.
24. Fifth, the defendant makes some comments on the evidence Hsu Kim Ming (“Mr Hsu”) regarding the purchase of the Tsuen King Garden Unit and the defendant’s motor vehicle[9] . When the court attempted to understand the basis of this argument at the hearing, the defendant said that these matters would not have affected the court’s findings and he only wished to mention them in court. With the aid of that clarification, I do not regard those comments as forming a separate ground of appeal.
25. Sixth, the defendant criticizes the evidence of Kim Fai as being incredible, particularly regarding the payment of Siu Fung’s pocket money and school fees, and a traffic accident that occurred to the defendant in 1979[10] . However, the defendant has not explained how these affected the court’s findings. As shown in the Judgment, the defendant’s counterclaim was dismissed by reason of his failure to discharge his burden of proof on trust and/or estoppel.
26. Seventh, the defendant criticizes the court’s acceptance of George’s evidence that, when he visited Mother in hospital in 2013, he heard the defendant saying that he only wanted to take back one half of the sale proceeds of the Property and would not be concerned with other matters: see Judgment §§41 and 69.[11]
27. The defendant emphasizes that George’s evidence only covered part of the relevant conversation at the hospital. According to the defendant, he was mainly concerned about looking after Mother’s well-being, while all George was concerned with was persuading Mother to sell the Property.
28. At the hearing, the defendant purported to clarify that, when he said that he wanted to take back one half of the sale proceeds of the Property, what he actually meant was to apply part of the sale proceeds for the purpose of looking after Mother until she passed away. The defendant added that he would be willing to apply his half of the sale proceeds if there was insufficient money.
29. That purported clarification, it seems to me, reinforces the fact that the defendant did make the statement as George testified, and that George’s evidence was correctly accepted. The defendant has also failed to explain how the court was “plainly wrong” in making its finding of fact, being the high threshold required for a challenge of this nature: see Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd & Ors (unreported) CACV 11/2015; 27 November 2015.
30. Fundamentally, George’s evidence was only one piece of the evidence the court took into account in rejecting the defendant’s case: see §§57-107 of the Judgment. As mentioned above, the rejection of the defendant’s claim to sole beneficial ownership of the Property was the result of his failure to prove his pleaded case on constructive trust, resulting trust and estoppel.
31. Eighth, in Chui 2nd , the defendant made various criticisms on certain factual matters stated in the Judgment, including that the court’s findings were “devoid of basic logic”, involved “reversal of roles” and “confused facts”, and that the court regarded the defendant a “wholly incredible person”, etc[12] . The defendant did not however develop these points further in Chui’s Skeleton.
32. Upon the court’s invitation, the defendant purported to clarify those criticisms at the hearing. None of those clarifications however were directly related to the defendant’s case on constructive trust, resulting trust or estoppel. Even assuming his criticisms were to be valid (which I do not consider to be the case), that would not have assisted him in discharging his burden of proof on trust and/or estoppel in respect of the Property.
33. For all of the above reasons, I am not satisfied that the defendant has shown any real prospect of success in his intended appeal. I would have reached the same conclusion even if the lower threshold of reasonable prospect of success were to apply.
Disposition
34. There being no merits in the defendant’s intended appeal, and absent any reason why in the interests of justice his intended appeal should be heard, I dismiss the defendant’s application for leave to appeal out of time.
35. There is no reason why costs should not follow the event. I order that the defendant do pay the plaintiff’s costs of this application, including all costs reserved, with certificate for counsel to be summarily assessed on paper.
36. For the purpose of summary assessment of costs, I further direct that:- (a) the plaintiff shall lodge in court and serve on the defendant their skeleton bill of costs within 7 days of handing down of this decision; and (b) the defendant shall lodge in court and serve on the plaintiff’s solicitors his grounds of objections, if any, within 7 days thereafter.
37. I thank Mr Ko and the defendant for their assistance.
(Benny Lo)
Deputy District Judge
Mr Tony Ko, instructed by Danny Ma & Co, for the plaintiff
The defendant appeared in person
[1] The plaintiff was previously Hsu Kim Ming, the executor of the estate of Lo Sook Hing, deceased. On 12 February 2019, the present plaintiffs were ordered to replace Mr Hsu following the latter’s bankruptcy on 23 October 2018 and their appointment as the trustees-in-bankruptcy on 12 December 2018.
[2] The abbreviations defined in the Judgment are adopted in this Decision
[3] Chui 1st section II §(1); Chui 2nd §15a; Exhibit “CYF-6”
[4] Chui 1st section II §(2); Chui 2nd §15b; Exhibit “CYF-7”; Chui’s Skeleton §§3.2-3.3
[5] Amended Defence and Counterclaim §§8, 25-26 and submissions made at trial
[6] Chui 1st section II §(3); Chui 2nd §15c; Exhibit “CYF-8”
[7] Amended Defence and Counterclaim §§11, 25-27, Prayer
[8] Chui 1st section II §(4); Chui 2nd §15(d), Exhibit “CYF-9”
[9] Chui’s Skeleton §§4(a) and 4(b)
[10] Chui’s Skeleton §4(c)
[11] Chui 2nd §15(e), Exhibit “CYF-10”; Chui’s Skeleton §4(d)
[12] Chui 2nd §15(f); Exhibit “CYF-11”