LEUNG KWAI LING v. HK GLORY PROPERTIES LTD

HCA 347/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 347 OF 2013

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REASONS FOR DECISION

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I. Introduction

1.  I refer to my two Reasons for Decision handed down on 3 and 16 May 2013 respectively and my Decision handed down on 15 July 2013 (“15/7/13 Decision”) in the present action.  For easy reference, I shall adopt the abbreviations therein.

2.  On 22 February 2013, the plaintiff commenced the present action against the defendant.

3.  On 15 April 2013, the defendant issued D’s Summons to inter alia strike out the plaintiff’s Statement of Claim in the present action, and apply for RPO and RAO against the plaintiff (see paragraph 4 of the 3/5/13 Reasons).  On 15 April 2013, the plaintiff filed Mr Wong’s affidavit in support of D’s Summons.  The substantive hearing for argument in respect of D’s Summons has been heard on 1 August 2013.

4.  At the hearing on 16 May 2013 which resulted in the 16/5/13 Reasons, I directed that the plaintiff’s affidavits filed on 30 April, 6 May and 6 May 2013 shall stand as her affidavits in opposition to D’s Summons, and gave further directions for the filing and service of supplemental affidavit in opposition by the plaintiff as well as affidavit in reply by the defendant.

5.  Pursuant to my directions, the plaintiff filed her two affidavits in opposition on 28 and 30 May 2013 respectively, and the defendant filed Mr Wong’s 2^nd affidavit in reply on 13 June 2013.

6.  On 19 July 2013, the plaintiff issued a summons (“P’s 7^th Summons”) for an order that:

(a) leave be granted to add Lee Yiu Kei (“Lee”) as the 2^nd plaintiff in the present action to be represented by the plaintiff herein;

(b) leave to amend the Writ of Summons according to the draft annexed thereto:

(c) leave be granted for the plaintiff to represent Lee Yiu Kei in the present action and to represent him at all hearings of the present action.

7.  On the same day, the plaintiff filed her affidavit in support of P’s 7^th Summons. The plaintiff claimed that she and Lee were the joint owners of Unit 13B of Lai Sing Court and the corresponding “land lot share in Inland Lot 7903 + extension”.  She claimed that as Lee’s spouse she was entitled to represent him and she was also authorised to do so by Lee as per an authorisation letter issued in 2011, which letter had been included in the exhibits to Mr Wong’s affidavit.

8.  On 23 July 2013, the plaintiff issued another summons (“P’s 8^th Summons”) for an order:

(a) to adjourn the hearing of D’s Summons or to restore her previous requests for leave to file more affidavits;

(b) alternatively, to re-apply for leave to file her 3 affidavits all dated 19 July 2013 of 1 page, 2 pages and 5 pages respectively (with exhibits) and any other of her affidavits filed in July 2013;

(c) “the 2nd + 3rd director of [the defendant]” to give affidavits to confirm whether the contents of the defendant’s affidavits and exhibits are true or false, especially for the parts which the plaintiff alleged were false and untrue;

(d) to allow 2 months for the plaintiff to adduce expert evidence to show that the compensation of HK$400,000.00 and the profit share as provided in the Development Agreement dated 1 May 2001 were seriously low, undervalued, wrong, unfair and fraudulent;

(e) to deal with all her summonses first before dealing with D’s Summons.

9.  On the same day, the plaintiff filed her affidavit in support of P’s 8^th Summons. In support of (a)-(b) above, the plaintiff claimed that she required time to read and study the substantial affidavits filed by the defendant, and to study various laws which were unclear to her.  In support of (c) above, the plaintiff claimed that the defendant’s affidavits contained lies and untruths which were made “with malice + fraud of [the defendant]”, hence the defendant’s directors should confirm the contents of such affidavits as she requested.  In support of (e) above, such relief was required because the reliefs sought in D’s Summons were serious and draconian, and would cause her harm and losses.

10.  On 26 July 2013, the plaintiff filed yet another summons (“P’s 9^th Summons”) for the following order that:

(a) all affidavits and exhibits filed by the defendant in the present action and her previous cases be ruled inadmissible under Order 18 rule 19(2) of the RHC for the purpose of D’s Summons insofar it relied on Order 18 rule 19(1)(a) of the RHC;

(b) the false and forged documents in the exhibits to the affidavits filed by the defendant in the present action (including the Deed of Assignment and memorial, document concerning payment of auction proceeds to the defendant, attendance lists of two annual general meetings of the owners of Lai Sing Court in 2006-2007, documents concerning the defendant obtaining vacant possession of the plaintiff’s and Lee’s unit in Lai Sing Court, and the Confirmation by Owner by the plaintiff and Lee) and her previous cases be ruled inadmissible for the purpose of D’s Summons insofar as it relied on Order 18 rule 19(1)(c)-(d) of the RHC;

(c) all judgments/orders that struck out her previous cases and all orders/appeals that dismissed her claims against the defendant, the trustees, the guarantor and the solicitors be ruled inadmissible for the purpose of D’s Summons since they were obtained by fraud and lies by the defendant;

(d) statement of claim be amended (if required) and not be struck out;

(e) all requests by the defendant for court orders to strike out the plaintiff’s claim and/or for RAO/RPO be dismissed because the defendant’s hearing bundle and skeleton submissions for the hearing of D’s Summons had not been served;

(f) the defendant do file affidavit of service in respect of their hearing bundle for the hearing of D’s Summons.

11.  On the same day, the plaintiff filed her affidavit in support of P’s 9^th Summons. The plaintiff claimed she and Lee suffered loss as a result of the defendant’s theft of the auction proceeds and profit share in respect of their unit in Lai Sing Court, use of the false Deed of Assignment and other false documents as referred to above, fraudulent misrepresentation in the Deed of Assignment and other documents, and unreasonably low and undervalued compensation which the plaintiff only discovered in 2011 or 2012.  The plaintiff also complained that no minutes of the annual general meetings of Lai Sing Court owners in 2005 and 2006 were provided to her.

12.  On 28 July 2013, the plaintiff lodged her skeleton submissions, chronology of events and list of authorities by fax.

II.  P’s 7^th summons

13.  In respect of the plaintiff’s application to join Lee as the 2^nd plaintiff in the present action, there is no written consent from Lee to confirm his intention and consent to join as a co-plaintiff in the present action.  The plaintiff claimed there was an authorisation letter by Lee issued in 2011 enclosed in the exhibits to Mr Wong’s affidavits filed in the present action.  Review of Wong’s affidavits identified a copy “Letter of Authorisation” dated 28 May 2010 purportedly signed by Lee amongst the exhibits.  This has not been verified by Lee by way of affidavit or by his personal appearance in court. 

14.  The copy “Letter of Authorisation” dated 28 May 2010 on its face purportedly authorises the plaintiff to take any and/or all actions on his behalf and to sign any documents on his behalf in respect of (a) Flat B on 13^th Floor of Block B of Lai Sing Court and Carpark No 57 on Lower Ground Floor, Flat B on 22^nd Floor of Tower 2 of Serenade, No 11 Tai Hang Road, Hong Kong and Car Parking Space No 36 on L3 Floor, and relevant units at Serenade, (b) matters concerning the Lai Sing Court Redevelopment Project, the Development Agreement dated 1 May 2001 and supplemental agreements/letters/documents, (c) matters/documents concerning Serenade or the above property units or any of the above matters, including “any actions taken on my or our behalf by any body or bodies, companies, corporations, organizations or any other persons or other parties”.  The copy “Letter of Authorisation” dated 28 May 2010 also purportedly states that Lee ratified and confirmed any or all actions taken by the plaintiff and any document signed by the plaintiff on his behalf in respect of the matters or property units mentioned therein.

15.  Although the copy “Letter of Authorisation” dated 28 May 2010 is broadly worded, there is no specific authorisation for the plaintiff to bring legal proceedings in Lee’s name and on his behalf.  In any event, the copy “Letter of Authorisation” dated 28 May 2010 predates the present action by more than 2½ years, and there is nothing to show that the present litigation (which was commenced only in 2013) was within Lee’s contemplation at that time.  In my view, this is significant because becoming a party to legal proceedings carries the duties and responsibilities of being a litigant, and a party to legal proceedings is subject to possible sanctions by the court, including adverse court orders (such as costs orders).

16.  As the defendant’s solicitors submitted, there is no justification why Lee who is supposedly sui juris should not make the application himself if he wished to be added as a co-plaintiff in the present action.  But even if he were allowed to be joined as a co‑plaintiff in the present action (which I disagree), notwithstanding any authorisation that he may grant for anyone to represent him, Lee himself (and not his representative) has to personally apply to the court for leave to have another to represent him in the present action with full reasons.  Where a party is sui juris, the court is reluctant to grant such leave.  Even if a McKenzie friend is permitted, still the party himself has to conduct the litigation, attend court hearings and address the court.  In Lobo v Kripalani [1998] 2 HKLRD 325, 328, Godfrey JA explained the McKenzie friend as follows : “…… A litigant in person is allowed to have sitting with him someone who can give him advice and help with the presentation of his case; but it is still the litigant in person who has to present that case to the court. ……”

17.  In the circumstances, there is no sufficient basis for the exercise of the court’s discretion to allow Lee to be joined as the 2^nd plaintiff in this action.  That being the case, it is unnecessary for me to consider whether leave should be granted for the plaintiff to represent Lee in the present action.  But for the avoidance of any doubt, no such leave is granted.  Therefore, I dismissed P’s 7^th Summons at the hearing on 1 August 2013.

III.  P’s 8^th summons

18.  In respect of the plaintiff’s application to file more affidavits (which have yet to be filed) to oppose D’s Summons, she had made similar application in P’s 5^th Summons, which I dismissed by my 15/7/13 Decision.  There is nothing before me to show any material change in circumstances in the two weeks since 15 July 2013.  Hence, the application to adjourn the hearing of D’s Summons to allow the plaintiff to prepare and file more affidavits must be dismissed.

19.  In respect of the plaintiff’s application for leave to file/serve and rely on her 3 affidavits all dated 19 July 2013 to oppose D’s Summons, I see no reason to allow the plaintiff to rely on her 1-page affidavit dated 19 July 2013 as it was filed in support of P’s 7^th Summons and unrelated to the issues in D’s Summons.  I am not persuaded that the plaintiff should be allowed to rely on her affidavits dated 24 and 26 July 2013 for the purpose of opposing D’s Summons as they were filed in support of discrete interlocutory applications being P’s 8^th and 9^th Summonses.

20.  The remaining question is whether the plaintiff should be allowed to rely on her 2 affidavits dated 19 July 2013 (comprising 2 pages and 5 pages respectively) for the purpose of D’s Summons.  Having considered the contents of those 2 affidavits which are directed at the issues in D’s Summons but which do not appear to add any new dimension that would require the defendant to respond by affidavit evidence in reply, at the hearing on 1 August 2013 I granted retrospective leave for the plaintiff to file/serve her 2 affidavits dated 19 July 2013 (comprising 2 pages and 5 pages respectively), and to rely on such affidavits for the purpose of D’s Summons.  But for the avoidance of doubt, the plaintiff is not entitled to rely on any other affidavit filed in July 2013 for the purpose of D’s Summons.

21.  In my view, the plaintiff is not entitled to require the defendant to file affidavits to verify the contents of Mr Wong’s affidavits already filed by the defendant in the present action.  It is for the defendant to decide on the evidence they wished to adduce for the purpose of D’s Summons; it is not for the plaintiff to dictate the scope of the defendant’s evidence.  If their evidence is lacking in any material respect, it is open for the opposing party (ie the plaintiff) to make submissions at the substantive hearing for argument in respect of D’s Summons to attack such defect if she so wishes.  This has already been explained in paragraph 19 of my 15/7/13 Decision.

22.  I am unable to see any justification for granting directions at this stage to obtain expert report as suggested by the plaintiff.  If the defendant is successful in their application for reliefs under D’s Summons, there will be no need for any expert evidence at all.  If the plaintiff successfully resists D’s Summons, then at an appropriate stage of the present action when parties are required to prepare evidence she may renew her application for leave to adduce expert evidence.  I agree with the defendant’s solicitors that the plaintiff’s application is premature and unnecessary at this stage of the proceedings.

IV.  P’s 9^th summons

23.  Insofar as the plaintiff seeks an order that the defendant cannot rely on affidavit evidence for the purpose of D’s Summons to strike out the plaintiff’s pleadings for no reasonable cause of action under Order 18 rule 19(1)(a) of the RHC, this is a matter of law (see Order 18 rule 19(2) of the RHC) and does not require any court order.  I decline to grant an order in this respect.

24.  In respect of the plaintiff’s application for an order that certain exhibits to Mr Wong’s affidavits, which she claimed to be false, untrue and forged, be ordered inadmissible, the plaintiff by her summons dated 11 March 2013 had already asked that the defendant be debarred from filing exhibits to Mr Wong’s affidavit, and by P’s 3^rd Summons had already applied to strike out all exhibits to Mr Wong’s affidavits that she had declared to be void, illegal and cancelled.  The plaintiff’s summons dated 11 March 2013 was dismissed by Master Ho on 22 March 2013.  I dismissed the plaintiff’s aforesaid application in P’s 3^rd Summons (see my 16/5/13 Reasons).  The present application in P’s 9^th Summons is in substance the same as or similar to the reliefs sought in those previous applications which were essentially attempts to prevent the defendant from relying on documents that the plaintiff disagrees for the purpose of D’s Summons.  The present application is plainly a collateral challenge to those dismissals, and therefore falls to be dismissed.

25.  In any event, even if I am wrong and the reliefs sought in the present application are different, I would still dismiss the same because at the hearing of P’s 9^th Summons D’s Summons was yet to be substantively argued by the parties and to be determined by the court.  As explained in my 16/5/13 Reasons, I do not see sufficient basis for the plaintiff to restrict the defendant’s liberty to file affidavit evidence with exhibits that they consider appropriate to support D’s Summons simply on the basis that the plaintiff disagrees and asserts they are false.

26.  In respect of the plaintiff’s application for an order that the judgments/orders in her previous cases be ruled inadmissible for the purpose of D’s Summons, this must be dismissed.  Judgments/orders of the court which have not been overruled or overturned on appeal cannot be inadmissible.

27.  In respect of the defendant’s hearing bundle and skeleton submissions, the defendant’s solicitors have filed affirmations of service dated 23, 24 and 31 July 2013, so no order in this respect is required.  The plaintiff complained that the served copy of the affirmation of service dated 24 July 2013 did not contain name and name chop of the Commissioner of Oaths.  But the affirmation of service as filed was properly completed with the served copy marked “SD” to show it had been signed. There is no merit to this complaint.  

28.  In such affirmations of service, the process server of the defendant’s solicitors explained that on 22 July 2013 he attended the plaintiff’s address for service with a view to serve the defendant’s hearing bundle, skeleton submissions, chronology of events and list of authorities by hand.  But he was informed by a male caretaker that no person called Leung Kwai Ling was living at such premises.  When the process server explained that the plaintiff was a family member residing at such premises, the caretaker still refused to let him go up to the premises.  The process server tried to contact the plaintiff through the building intercom for 5 minutes to no avail.  In fact, prior to such visit to the plaintiff’s address for serving the aforesaid documents, the defendant’s solicitors left voice message at the plaintiff’s telephone contact informing her that they had documents for service, but she did not call back.  So on 23 July 2013 the defendant’s solicitors sent the aforesaid documents through the local postal service of the Hong Kong Post Office to the plaintiff at her address for service.

29.  In my view, it is the duty of any litigant to ensure his/her address for service to be freely accessible to receive documents required for service.  If such address is not freely accessible, then the litigant must take the initiative to liaise with the opposing party to make alternative arrangements to collect the documents for service.

30.  The aforesaid affirmations for service show that the defendant’s solicitors have done all they could to effect service of the defendant’s hearing bundle and other documents by hand, and they cannot be blamed when the caretaker refused them access to the relevant premises.  In my view, the plaintiff cannot complain that she was not served with the hearing bundle and skeleton submissions on time.

31.  In any event, the defendant’s solicitors have taken immediate steps to serve the relevant documents by post.  The plaintiff’s skeleton submissions show that on 26 July 2013 she received the card for collecting the parcel, and in her oral submissions she confirmed she had collected the relevant documents on the following day.

32.  The plaintiff complained that she did not have time to study the defendant’s hearing bundle.  However, the hearing bundle comprised of documents which had been served on her previously and with which she should be familiar.  In any event, the latest documents added to the hearing bundle were all summonses and affidavits filed by the plaintiff herself. But notwithstanding such complaint, the plaintiff was well able to prepare her skeleton submissions by 28 July 2013, and was further able to lodge list of authorities and chronology of events prior to the hearing of D’s Summons on 1 August 2013.  There is no merit to the suggestion that the defendant’s striking out application and their application for RAO/RPO should be dismissed because of the late service of the defendant’s hearing bundle and skeleton submissions.  For the avoidance of any doubt, I retrospectively enlarge time until 27 July 2013 for the defendant to serve the hearing bundle and their skeleton submissions, list of authorities and chronology of events.

33.  The plaintiff complained that she did not receive the defendant’s supplemental skeleton submissions on time before the hearing. But as she chose to issue P’s 7^th, 8^th and 9^th Summonses only on 19, 23 and 26 July 2013, she cannot be heard to complain that JSM was only able to put together supplemental skeleton submissions that addressed those summonses on 29 July 2013 and to serve them by hand.  But in any event, even without such supplemental skeleton submissions, the plaintiff’s summonses are in their own unmeritorious (save for paragraph 20 above) and are still liable to be dismissed.

34.  As regards the plaintiff’s request for the statement of claim to be amended (if required) and not to be struck out, it is inappropriate to consider such application before the hearing of D’s Summons.  Not having heard the arguments to be made by both parties at the substantive hearing for argument in respect of D’s Summons, there is no basis as yet for the court to exercise any such discretion.  The plaintiff also has not condescended upon the particulars of any proposed amendment.  In the circumstances, such application is premature and falls to be dismissed.  However, such dismissal is without prejudice to the court’s discretion, if it sees fit, to consider granting leave to amend in the course of D’s Summons, but I hasten to add that the court is not bound to do so.

V.  Conclusion

35.  In conclusion, I granted the following orders at the hearing on 1 August 2013:

(a) P’s 7th and 9th Summonses are dismissed;

(b) save that retrospective leave is granted for the plaintiff to file/serve her 2 affidavits dated 19 July 2013 (comprising 2 pages and 5 pages respectively) and to rely on such affidavits for the purpose of D’s Summons, P’s 8th Summons is dismissed;

(c) for the avoidance of doubt, no leave is granted for the plaintiff to rely on any other affidavit filed in July 2013 for the purpose of D’s Summons.

36.  There is no reason why costs should not follow event.  At the hearing on 1 August 2013, I also ordered that :

(a) 25% of the costs of P’s 8th Summons (including 5 minutes of the hearing time on 1 August 2013) be costs in the cause of D’s Summons, and 75% of the costs of such summons be paid by the plaintiff to the defendant to be taxed if not agreed;

(b) costs of P’s 7th and 9th Summonses be paid by the plaintiff to the defendant to be taxed if not agreed.