LEE SAN v. LEE (LI) MAN FAT AND OTHERS

HCA 4245/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4245 OF 2001

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JUDGMENT

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1.  This is an application by the 3^rd to 6^th defendants (“D3 to D6”) to strike out the action against them for want of prosecution.  The writ with the statement of claim endorsed thereon was issued on 25 September 2001.  This application first came before Registrar Chan on 8 December 2004.  He adjourned the summons to be heard by a judge in open court.  That is the matter before me.

2.  As the pleading shows, Li Tsik Fong also known as Li Hi Yin (“Li Senior”) had four sons.  Li Senior is the common ancestor of the plaintiff and D3 to D6.  The plaintiff is the grandson of Li Shui Fat, one of the sons of Li Senior.  Li Man Fat was another son of Li Senior.  The 2^nd defendant is the grandson of Li Man Fat.  Li For Choi also known as Li Hin Ting, the 3^rd son of Li Senior, was the grandfather of D3 to D5.  Li Sou Fat, the 4^th son of Li Senior, was the grandfather of D6.

3.  By about 1927 the Li family had amassed a substantial number of landed properties all situated at Demarcation District No. 129 (“DD 129”) and they were held in the names of different branches of the Li family.  This is fully particularized and pleaded in the statement of claim.  The properties held in the name of Li For Choi also known as Li Hin Ting are particularized at para. 8 of the statement of claim.  The properties held in the name of the Li Ah Su and Li Man Fat as trustees of Li Hin Yin Tso are particularized at para. 9 of the statement of claim.  The properties held in the name of Li Man Fat or Li Man Fat and Li Kwai Shu, alias Li Yin Sang, alias Lee Kwai Shu, the adopted son of Li Sou Fat, are particularized at para. 10 of the statement of claim. 

4.  In 1927 the four branches of the Li family entered into a family arrangement for distribution of the family assets (“the 1927 Family Arrangement”). 

5.  The plaintiff’s case is that his father became entitled to the landed properties pleaded and particularized at para. 12 of the statement of claim.  His case is that the properties particularized at para. 14 of the statement of claim have not been properly distributed or transferred to his father or to him by the defendants or their respective fathers. 

6.  The plaintiff further contends at para. 16 of the statement of claim that he is entitled to a quarter share of and in those family assets that were not distributed or transferred to the descendants of Li Senior under the 1927 Family Arrangement, namely Lot No. 586, Lot No. 1174, Lot No. 1495 and Lot No. 1447 all in DD 129 (“the Undistributed Lots”) and any rents, profits, income or proceeds of sales arising or derived therefrom. 

7.  The plaintiff’s claims against D3 to D6 are for declarations, orders, accounts, enquiries, damages, interests and costs as set out in the prayer for relief. 

8.  D3 to D6 filed and served their defence on 5 February 2002.  Briefly, these defendants’ position is that insofar as the landed properties referred to at para. 14(a) and (c) of the statement of claim are concerned, they were at all material times ready, willing and able to transfer them orcause the same to be transferred into the plaintiff’s possession but prior to the commencement of the proceedings the plaintiff never madeanyrequest to have the same transferred. 

9.  As regards the Undistributed Lots these defendants deny that they formed part of the family assets of the Li family and the plaintiff is not entitled to any entitlement or share therein or any part thereof. 

10.  Further and/or in the alternative, these defendants contend that the plaintiff is estopped from claiming proprietary rights or interests in the Undistributed Lots by reason of an express representation and/or promise of the plaintiff made to D3 to D6 at a meeting held on 22 May 1997 with the intention that they would act on such representation and/or promise which in fact D3 to D6 did.  This is pleaded and particularized at para. 18 of the defence. 

11.  It is denied that the plaintiff is entitled to any relief claimed.

12.  In support of their application to dismiss the action for want the prosecution, D3 to D6 rely on the fact that there has been inordinate and inexcusable delay on the part of the plaintiff in bringing the action to trial.  This has caused prejudice to the defendants and it is submitted that the action should be dismissed for want of prosecution. 

13.  It is well settled that in order to succeed that the defendants have to show that there has been delay in prosecuting the action.  The delay must be inordinate and inexcusable.  The defendants must also show that the inordinate and inexcusable delay is such as is likely to cause or has caused serious prejudice to the defendants. 

14.  It was submitted by Ms Ma, counsel for D3 to D6, that by the acts and conduct of the plaintiff he has evincedan intention not to comply with previous court orders.  It was further submitted that the delay on the plaintiff’s part has prevented the action from being properly set down for trial. 

15.  As the chronology shows, on 27 August 2002, pursuant to the application by D3 to D6, Master M Yuen made an order for directions in the action.  This included directions for the exchange of lists of documents and inspection thereof.  There was also a direction for the exchange of witness statements as to facts within 56 days. 

16.  On 30 September 2002 D3 to D6 served their lists of documents.  On 4 October 2002 the plaintiff served his list of documents. 

17.  By a consent order made on 18 February 2003, Master Lung adjourned the hearing to 19 February 2003 for leave to set the action down for trial.  This was adjourned sine die with liberty to restore before the Listing Master. 

18.  On 3 November 2003 the witness statement of D5 was filed on behalf of D3 to D6. 

19.  On 29 January 2004 D3 to D6 filed their 1^st checklist. 

20.  On 30 January 2004 the plaintiff filed his 1^st checklist indicating that he had yet to finalize his witness statement and expert’s report.  He proposed that he do file and serve witness statements as to facts and expert evidence if any, within 60 days from the date of the order to be made. 

21.  On 4 February 2004 Master Lung ordered that the application to set the action down for trial be adjourned to 31 March 2004. 

22.  On 26 March 2004 D3 to D6 filed their 2^nd checklist. 

23.  The plaintiff filed his 2^nd checklist also on 26 March 2004.  He proposed that the application for leave to set the action down for trial be further adjourned sine die with liberty to restore before the Listing Master and that he do file and serve witness statements as to facts and expert evidence if any, within 3 months from the date of the order to be made. 

24.  On 31 March 2004 Master Lung ordered that the application for leave to set the action down for trial be adjourned to 16 June 2004.  He further ordered costs against the plaintiff. 

25.  On 8 June 2004 the plaintiff’s then solicitors, Messrs. Wong, Hui & Co., applied ex parte for an order that they cease to be the solicitors for the plaintiff in the action. 

26.  On 11 June 2004 the plaintiff filed his 3^rd checklist. 

27.  On 14 June 2004 Master de Souza made an order that upon compliance with O. 67, r. 6(1) of the RHC, Wong, Hui & Co. do cease to be the solicitors for the plaintiff. 

28.  On 15 June 2004 Wong, Hui & Co. filed a certificate of service of the order of Master de Souza on, inter alia, the plaintiff “at 116 Lakeshore Drive, Savannah GA 31419, USA, being the usual or last known address of [the plaintiff]”. 

29.  On 16 June 2004 Master Lung adjourned the application for leave to set down the action for trial sine die with liberty to restore.  The plaintiff did not appear at that hearing nor was he represented by solicitors.

30.   The evidence shows that on 29 June 2004 the solicitors for D3 to D6 wrote to the plaintiff at the same address as given by Wong, Hui & Co. in the certificate of service of the order of Master de Souza filed on 15 June 2004 asking him or his new solicitors to proceed with the prosecution of the action without further delay.  This was ignored by the plaintiff. 

31.  On 21 September 2004 a 2^nd letter was sent by the solicitors for D3 to D6 urging him to proceed with the matter but this was also ignored.

32.  On 9 November 2004 the solicitors for D3 to D6 wrote to the plaintiff informing him that their clerk would attend before the Clerk of the Court on 23 November 2004 for the purpose of restoring the checklist hearing before the Master.  This was also ignored by the plaintiff. 

33.  On 26 November 2004 the summons seeking an order to dismiss the action for want of prosecution was issued.  This has been served on the plaintiff. 

34.  It can be seen from the above that D3 to D6 have filed their witness statements as to facts on 3 November 2003.  The plaintiff has failed to file his witness statements as to facts and expert’s report. 

35.  There has been considerable delay on the plaintiff’s part.  The delay complained of in this application is the delay since the plaintiff’s 1^st checklist filed on 30 January 2004, which is some 13 months up to the present time.  Since June 2004 the plaintiff was no longer represented by solicitors.  Yet, he has failed to file a notice to act in person or to instruct new solicitors to act for him.  He has also ignored the letters sent to him by the solicitors for D3 to D6 urging him to prosecute the action or face the consequences of an application to dismiss the action for want of prosecution.

36.  I am satisfied that these defendants have demonstrated that the delay on the part of the plaintiff is both inordinate and inexcusable. 

37.  As regards the prejudice to these defendants, a factor to bear in mind is the inevitable inference to be drawn that with the passage of time there will be a consequential dimming of witnesses’ recollection of the events which occurred many years ago. 

38.  Quite apart from this, however, it seems to me that in this case the delay is likely to cause serious prejudice to these defendants.  The evidence shows that the writ has been registered as a lis pendens against some of the Undistributed Lots.  This is referred to at para. 30 of the affirmation of D5 filed in support of this application.  There is also the evidence that there was a joint venture agreement between these defendants and one Gerham International Limited dated 15 September 1998 whereby an agreement was made to jointly develop the landed properties being some of the Undistributed Lots.

39.  In Ho Hip Lik & another v. Kwan Man Ho & others Civil Appeal No. 240 of 1995, judgment 29 March 1996, it was accepted by the Court of Appeal that the 1^st defendant’s free exercise of his property rights remain hindered by the registration of the lis pendens in that case.  It was held that this was serious prejudice to the 1^st defendant. 

40.  It seems to me that on the material before the Court the plaintiff does not appear to be interested in prosecuting its action to trial.  His delay is both inordinate and inexcusable.  Any further delay is likely to cause serious prejudice to these defendants.  As long as the action is pending they will be unable to successfully vacate the registration of the lis pendens on some of the Undistributed Lots.  The free exercise of their property rights remains hindered by the registration of the lis pendens.  I am satisfied that the delay on the part of the plaintiff is likely to cause serious prejudice to these defendants. 

41.  In the exercise of my discretion I grant the application of D3 to D6.  I dismiss the action for want of prosecution.