LEE CAROL v. TONG HUNG WAI TOMMY AND ANOTHER

CAMP 297/2019

[2020] HKCA 325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 297 OF 2019

(ON AN INTENDED APPEAL FROM HCMP 1851/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  By a summons filed 27 November 2019, the 1^st and 2^nd Defendants applied for leave to appeal out of time the decision of Deputy High Court Judge MK Liu (“the Judge”) dated 23 September 2019 refusing leave to appeal his decision dated 15 July 2019, in which he ordered the 1^st and 2^nd Defendants to personally pay costs of HK$880,000 to the Plaintiff.

2.  The factual background was set out by the Judge in his decision dated 15 July 2019.[1]  In essence, the proceedings concerned a dispute over the guardianship, care and access towards the 1^st Defendant’s elderly stepmother TLFK who is also the Plaintiff’s paternal aunt (i.e. father’s sister) and had been residing with the Plaintiff.  On 6 October 2018, the Defendants, under the pretext of taking TLFK to lunch, brought her back to her previous residence without informing the Plaintiff.  The Plaintiff commenced proceedings in HCMP1851/2018 on 25 October 2018 seeking declaratory and injunctive relief regarding the care and access to TLFK.  Before that, she had attempted to sought relief in HCMH proceedings (HCMH 47/2018) and Guardianship Board applications without immediate success. Ex parte injunction was granted in HCMP 1851/2018 on 25 October 2018.

3.  Since the commencement of HCMP 1851/2018 TLFK has been found by the court in the HCMH proceedings to be a mentally incapacitated person and a Committee was appointed on 9 November 2018.  By an order dated 11 June 2019, the Judge granted leave for the Plaintiff to discontinue the HCMP proceedings, save for the issue of costs for which the Judge gave leave to the parties to make submissions.  On 15 July 2019, after considering the submissions, the Judge ordered the Defendants to pay HK$880,000 in costs to the Plaintiff.

4.  The Judge’s decision to order costs against the Defendants was due to the incontrovertible fact that the proceedings were triggered by the Defendants’ removal of TLFK from the Plaintiff’s care on 6 October 2018, without any prior discussion with the Plaintiff before doing so and using an untrue pretext, which the Judge considered to be unreasonable and improper.[2] The Judge made his decision based on facts for which there was no real dispute. He refrained from conducting a mini-trial in respect of matters which are subject to factual disputes.[3]

Discussion

5.  The Court’s approach in considering an application for leave to appeal out of time is well settled.  In Tang Chai On v Tang Sing Ki, [2016] 5 HKLRD 104, this Court held at [9]:

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

6.  The explanation as to the reasons for the delay offered by the 1^st Defendant as set out in his affidavit sworn 9 January 2020 were:

(a)  the Defendants ceased to be legally represented after 30 September 2019;

(b)  the Defendants wrote to the Judge and telephoned his clerk on several occasions requesting an oral hearing or a reconsideration of the Judge’s decisions, but received no response; and

(c)  it was only on 12 November 2019 upon receipt of a letter from the court that the Defendants realized that they needed to file a summons to seek leave to appeal.

7.  This Court has repeatedly said that ignorance of the law on the part of a litigant acting in person is generally not an excuse for delay.[4] Given that the Defendants had during the course of the proceedings previously retained two different solicitors’ firms and a barrister to act for them, they should have been told that there is time limit for application for leave to appeal. In the circumstances, the delay in seeking leave to appeal is not reasonably excusable.

8.  Pursuant to Order 59, Rule 2B(3) of the Rules of the High Court, Cap 4A, an application for leave to appeal against the Court of First Instance’s refusal of leave to appeal may be made within 14 days of from the date of the refusal.  In the present case, the deadline for filing the summons to seek leave to appeal the Judge’s refusal of leave to appeal was 7 October 2019, thus the Defendants’ delay of 7 weeks is substantial.

9.  Since the delay is both substantial and inexcusable, the Defendants must demonstrate a case with real prospect of success before an extension of time could be granted.

10.  The threshold for reversing a discretionary decision on costs is high.  As this Court pointed out at [34] in Poon Ching Man v Lam Hoi Pun, [2016] 3 HKLRD 815:

“ 34.  This court has stressed repeatedly that costs is very much a matter of discretion for the trial judge and the Court of Appeal would be very circumspect in intervening with such a decision with high discretionary content: see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419; IO of King Yip Factory Building v Kwun Wah Flower and Plant Manufactory Ltd CACV 128 of 2003, 13 Nov 2003; Hung Fung Enterprises Holdings Ltd v Agricultural Bank of China [2012] 3 HKLRD 679; Bonnie Blair Ltd v Witmore Ltd HCMP 1546 of 2015, 7 Aug 2015; Chan Shun Kei v Hong Kong Construction (HK) Ltd CACV 192 of 2014, 7 March 2016. In the last case, the court said at §22:

“22.  It must be stated at the outset that this court should acknowledge that costs is very much a matter of discretion of the judge and we should be circumspect in interfering with the same.  The established approach is that this court will only interfere when it is satisfied that the decision of the judge is either wrong in principle or plainly wrong, see Ho Shu Kwong v Chiang Chun Yuan [2002] 3 HKLRD 419.  The rationale for this approach was explained by Woo JA (as he then was) in Ho Shu Kwong.  The trial judge is the best person to exercise the discretion on costs because he is most familiar with the conduct of the case at the trial and the impact of the success and failure on each issue canvassed before him.  In a way it is like an appeal against findings of fact.  As explained in numerous judgments (see e.g.  China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015), an appellate court is institutionally disadvantaged from re-assessing a decision of this nature as if it is hearing the matter in the first instance.  Thus, this court should examine whether a primary judge committed any palpable error in the exercise of the discretion on costs.  In the absence of such an error, the mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the decision of the primary judge.”

11.  In his grounds of appeal dated 9 January 2020[5], the 1^st Defendant advanced the following grounds:

(a)  since none of the parties were successful, costs should not have been awarded without resolving the factual disputes in issue;

(b)  on 31 May 2018 the Defendants had communicated in advance to the Plaintiff their objections to her moving out from Estoril Court residence with TLFK, and continued to object for the next 5 months;

(c)  the Judge did not fully assess all the facts in dispute before ordering costs.

12.  As noted above in Poon Ching Man, costs are very much a matter of discretion, and this Court will only interfere when it is satisfied that the decision of the first instance judge is either wrong in principle or plainly wrong.  In other words, in the absence of any palpable error in the exercise of discretion on costs, the mere fact that appellate judges might have exercised the discretion differently is not sufficient to interfere with the decision of the judge below.

13.  In the present case, we detect no palpable error in the decision on costs by the Judge. He correctly apprehended the undisputed facts and the law.  In particular, the Judge was correct in observing that the proceedings were triggered by the Defendants’ conduct in removing TLFK from the Plaintiff.

14.  We do not agree that no party is successful in the HCMP proceedings.  The Plaintiff did obtain relief by way of ex parte injunction. Attempt had been made by the Plaintiff to obtain similar relief in HCMH proceedings without success.  Though there was no longer any need for HCMP 1851/2018 to be continued in light of the arrangement pursuant to orders made in the HCMH proceedings, the former cannot be said to be unsuccessful. The better view is that HCMP 1851/2018 have served its purpose. 

15.  It was a matter of discretion for the Judge, with reference to the facts and circumstances in the present case, to decide on the issue of costs.  We are in no doubt that the Judge correctly apprehended the undisputed facts (set out at [5] of the Decision on Costs).  The only issue which we find necessary to address is whether the Judge was correct in regarding the conducts of the Defendants as unreasonable and improper[6] when he did not resolve other disputed factual issues. 

16.  We note that the Judge was familiar with the facts of the case, having been involved in dealing with both sets of proceedings： see the Decision of 11 June 2019.

17.  The costs in question are the Plaintiff’s costs on the summonses of 25 and 30 October 2018.  They revolved around applications concerning urgent injunctive relief for restoring the care of TLFK to the Plaintiff. In light of the circumstances leading to the proceedings as highlighted in the Decision on Costs, we are of the view that it was open to the Judge to conclude that irrespective of the rights and wrongs on other disputed matters, the conducts of the Defendants were unreasonable and improper and such conducts triggered proceedings being brought. In such circumstances, it was appropriate for the Judge to decline to make findings on facts that were in dispute.

18.  We see no flaw in the Judge’s reasoning that the Defendants should pay costs due to their unreasonable and improper conduct which triggered the proceedings.

19.  In their summons for leave to appeal (taken out by the 1^st Defendant), the Defendants appended a large volume of documents (Annexes 1 to 7) to the proposed grounds of appeal in the summons.  There is an issue between the parties as to whether some of these documents are new evidence being put before this Court for the first time.

20.  In the Plaintiff’s statement of objection dated 19 December 2019 at paragraph 1(f), the Plaintiff stated that “The 1^st Defendant apparently sought to rely upon new and pre-existing evidence to be adduced at the appeal in the Application.  There is no justification for special grounds for adducing such fresh evidence at this appeal stage, …” [emphasis in original].  However, the Plaintiff did not specify which particular documents are fresh evidence.

21.  In response, in his 1^st affidavit the 1^st Defendant deposed at paragraph 11 that the documents in the appeal bundle had previously been communicated to the court (˹都是之前表達過好多次给法庭的˼), but that the Judge might not have seen them.  The 1^st Defendant further deposed that two VCDs were submitted to the Court on 22 May 2019 and that further video evidence (including closed circuit television footage) can be made available if necessary.

22.  In her affidavit sworn on 29 January 2020, the Plaintiff deposed at paragraph 12 that the documents and photos sought to be adduced by the 1^st Defendant were pre-existing evidence available prior to the relevant hearing and were not put before the Court.

23.  In his 2^nd affidavit, sworn 5 February 2020, at paragraphs 3 and 10 the 1^st Defendant mention two VCDs (albeit with a submission date of 24 May 2019) which are not before this Court. 

24.  It appears that the objected materials are the printouts of screenshots of WhatsApp chat excerpts, printouts of photographs and copies of receipts for patient care that are appended to Annex 7 of the summons. 

25.  Annex 7 of the Defendants’ summons consists of submissions and arguments made in the name of the 1^st Defendant’s paternal aunt, Lily Tong, together with the following appended documents:

(a)  printouts of screenshots of WhatsApp chat excerpts dated May to November 2018 recording discussions (and disagreements) on, inter alia, the 1^st Defendant’s stepmother’s moving out, the Defendants’ subsequent removal of her from the Plaintiff, the 1^st Defendant’s stepmother’s health, the Defendants’ allegations of misconduct or mistreatment on the part of the Plaintiff and other blood relatives of the 1^st Defendant’s stepmother, and attempts to dismiss the Plaintiff from caring for her;

(b)  copies of receipts for patient care expenses;

(c)  printouts of photographs of the 1^st Defendant’s stepmother and those who were caring for her, with captions superimposed but no contemporaneous date stamp.

26.  In our view, these materials are not properly before this Court as evidence. The printouts of screenshots, copies of receipts and photographs appended to Annex 7 of the Defendants’ summons are not produced as exhibits to a sworn affidavit or solemn affirmation.  Instead, those documents were appended as part of the proposed grounds of appeal to the Defendants’ summons. 

27.  Further, if the appendices to Annex 7 of the Defendants’ summons had been properly placed before the Judge below, they would have to be exhibited to an affidavit(s) before the Judge and such affidavit(s) should have been included in the papers produced by the Defendants to this Court.  We have not seen such affidavit(s).

28.  In any event, the appendices to Annex 7 of the Defendants’ summons go to the very type of issue that the Judge rightly declined to make findings on, i.e. factual disputes in the absence of a trial, or a mini-trial on affidavits, when the proceedings are already discontinued save on the issue of costs.

29.  On the whole, we are not persuaded that the Judge erred in his exercise of discretion on costs. 

30.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed, with the Plaintiff’s costs in the present appeal proceedings to be paid by the Defendants.

31.  As the application is totally without merit, we also order that, pursuant to Order 59 Rule 2A(8), no party may request this determination be reconsidered at an oral hearing inter partes.