AU WING LUN v. TAM MEI KAM AND OTHERS

HCA811/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 811 OF 2007

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D E C I S I O N

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A.      Introduction

1. The plaintiff (“Mr Au”) is a solicitor.  He was at all material times a consultant of Messrs Kong & Associates (“the Firm”). 

2. The 1^st defendant is the mother (“the Mother”) of Ms Anita Mui Yim Fong (“Ms Mui”).  The 2^nd defendant is her elder brother (“the Brother”).  I will refer to the Mother and the Brother collectively as “the Muis” below. 

3. On 20 December 2003, Ms Mui died.  She purportedly executed a will on 3 December 2003 (“the Purported Will”).  Disputes concerning her estate subsequently arose.  The Mother then commenced HCAP2/2004 (“the Probate Action”) against, among others, HSBC International Trustee Limited (“HSBCITL”) (in the capacity as the sole executor and trustee named in the Purported Will) as the 1^st defendant, and HSBCITL (in the capacity as the Trustee of the Karen Trust, which is the sole devisee named in the Purported Will) as the 2^nd defendant.  The Mother sought to challenge the validity of the Purported Will and claimed her rights to Ms Mui’s estate under intestacy if the Purported Will is found to be invalid. 

4. As the present action is a spin-off from the Probate Action, I will set out the relevant procedural steps taken there as follows. 

5. At the initial stage of the Probate Action, the Mother was represented by Messrs K.C. Fong & Co. (“KCF”).  Then on 28 August 2006, the Firm replaced KCF and became her solicitors. 

6. On 19 March 2007, the Firm took out applications on behalf of the Mother for orders to strike out the defendants’ defence and counterclaim and enter judgment under Order 18 rule 19, Order 14 and Order 14A of the Rules of the High Court (“the Applications”).  On 3 April 2007, the Mother further applied to re-re-re-amend the Re-re-Amended Statement of Claim (“the Amendment Application”). 

7. On 10 April 2007, the 3^rd defendant herein, Messrs Lau & Chan (“LC”), replaced the Firm as the Mother’s solicitors.  This change of legal representation brought about a U-turn on the Mother’s stance on the Applications and the Amendment Application. 

8. On 19 April 2007, the Amendment Application went before Cheung J.  Mr B.K. Ho of counsel appeared for the Mother.  He informed that the court that he was not inclined to proceed with the Applications and he had yet to advise the Mother on the Amendment Application.  Cheung J then adjourned the matter to 30 April 2007. 

9. At the hearing on 30 April 2007, Mr Ho applied to withdraw the Applications and the Amendment Application, which was granted.  Cheung J further ordered that upon Mr Ho orally withdrawing (“the Oral Withdrawal”) all the Mother’s claims set out in the prayer for relief in the Re-re-Amended Statement of Claim and all opposition to the grant of probate of the Purported Will, there will be a trial of the counterclaim for probate of the Purported Will on affidavit evidence on 21 May 2007. 

10. The progress of the Probate Action took a further twist when on 8 May 2007, Mr Ho went before Cheung J again and applied to withdraw the Oral Withdrawal.  Cheung J allowed the withdrawal and ordered that the order that he made on 30 April 2007 based on the Oral Withdrawal be rescinded.  The net effect is that the Mother will continue to take issue on HSBCITL’s application to propound the Purported Will in the Probate Action. 

11. On 8 May 2007, Lily Fenn & Partners replaced LC as the Mother’s solicitors. 

B.      The Injunction Application

12. It was the change of solicitors from the Firm to LC by the Mother that prompted Mr Au to commence the present action on 23 April 2007.  By notice filed on 25 May 2007, Mr Au discontinued his claim against the Brother. 

13. By summons dated 11 May 2007, Mr Au sought :

(a)      a prohibitive injunction to restrain the Mother from committing or continuing the breach of her undertakings not to change firm of solicitors without good reasons (“the 1^st Injunction”);

(b)     alternatively, a mandatory injunction to compel the Mother to re-appoint him and/or the Firm to act for her in the Probate Action (“the 2^nd Injunction”);

(c)     alternatively, a prohibitive injunction to restrain the Mother from giving her consent not to contest HSBCITL propounding the Purported Will without giving enough security to the court for full settlement of his and the Firm’s legal professional fees and their liabilities to payment of counsel and consultant fees (“the 3^rd Injunction”); and

(d)     an urgent examination by the court on the mental health of the Mother under the inherent jurisdiction of the court (“the Examination Order”).

14. I will call this the Injunction Application.  It first came before me on 16 May 2007.  I gave directions and adjourned it to today for substantive argument. 

15. The Mother filed her affirmation out of time on 5 July 2007[1].  There, apart from setting out her case in opposition, she also asked the court to strike out Mr Au’s claim.  Incidentally, LC has also applied to strike out Mr Au’s claim.  The Registrar has given directions for future conduct but a date has yet to be fixed for argument. 

16. I note by passing that the Muis have commenced HCA909/2007 against Mr Au and two other individuals. 

C.      Striking out

17. In the course of today’s hearing, I directed that the Mother should proceed with her striking out application by issuing within 14 days from today a summons, setting out the grounds that she sought to rely on, to be supported by affirmation, if necessary.  Mr Au then files his evidence in opposition within 14 days thereafter.  The Mother shall file an affirmation in reply within 14 days thereafter.  Finally, I ordered that her striking out application is to be heard together with LC’s. 

D.      Discussion

18. In light of the pending applications for striking out, I do not wish to dwell on the details of Mr Au’s claim.  Indeed for present purposes, I do not need to do so.  Nor is it necessary for me to deal with every single point taken by Mr Au in both his affirmations and submissions.  Suffice it to say that I have already considered them fully and carefully. 

19. The Injunction Application is brought under Order 29 of the Rules of the High Court.  In other words, it is supposed to be an application for interim relief.  I will proceed on the hypothetical basis that he has established a serious question to be tried on his claim. 

20. Applying for the 1^st and 2^nd Injunction, Mr Au is in effect asking the court to compel the Mother, supposedly a former client, against her wish and strong objection to re-instruct him to act for her in the Probate Action.  This is objectionable for two main reasons. 

21. First, a solicitor provides personal service to his client.  When his client terminates his retainer, the solicitor-client relationship comes to an end.  A solicitor cannot insist that his client must continue to instruct him, let alone asking the court to compel his client to do so.  Put differently, he cannot ask for specific performance of his retainer.  For it is trite that as a general rule, a contract of or involving personal service cannot be enforced by specific performance. 

22. Secondly, a solicitor-client relationship is built on mutual trust and confidence.  Plainly, the relationship between Mr Au and the Mother, together with the requisite trust and confidence which is essential to the relationship, has completely collapsed.  In my view, the rent in the parties’ relationship is so deep that it is simply impossible for the Mother to continue to place any trust or confidence in Mr Au.  When that very basis is gone, how can Mr Au continue to act for the Mother in the Probate Action?  Mr Au suggested that he can do so and protect her interests without taking instructions from her and despite her objection.  This is simply nonsensical.  It defies common sense, rocks the very foundation of a solicitor-client relationship and destroys the very freedom that a client enjoys in choosing his own lawyer.  It is indeed the most absurd submission that I have ever heard.  It really appals me that such a suggestion could have come from the mouth of a practicing solicitor. 

23. For these reasons, the application for the 1^st injunction and the 2^nd injunction must fail. 

24. As to the 3^rd injunction, it has been overtaken by event because, as noted, the Mother will continue to challenge the validity of the Purported Will in the Probate Action.  The factual basis in support of the application for the 3^rd Injunction is gone. 

25. As to the Examination Order, contrary to Mr Au’s submission, the court does not have inherent jurisdiction to order the Mother to attend a mental health examination.  In any event, Mr Au’s submission that the Mother has gone crazy because of her frequent change of solicitors and making false allegations in her affirmations and wild allegations against him, is untenable.  That sort of behaviour alone does not even begin to establish a prima facie case the Mother is suffering from any mental disorder. 

E.      Conclusion

26. For the above reasons, I will dismiss the Injunction Application. 

[Submission on costs]

27. This is a wholly unmeritorious application.  It is indeed an abuse of process.  I will order costs against Mr Au on an indemnity basis, to be taxed if not agreed and to be paid forthwith. 

[1] I granted her leave to do so at today’s hearing.