WONG YUK TUNG v. WONG PO LING (also known as WONG PO LING CLARA)

CACV 643/2020 &
CAMP 167/2021
(Determined together)

[2021] HKCA 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 643 OF 2020

(ON APPEAL FROM HCMP NO 129 OF 2019)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 167 OF 2021

(ON AN INTENDED APPEAL FROM HCA NO 899 OF 2012)

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(Determined together pursuant to the Order of

Master Ho, Registrar of Civil Appeals dated 28 May 2021)

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D E C I S I O N

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Hon G Lam JA (giving the Decision of the Court):

1.  This is the court’s decision to dismiss the defendants’ summons dated 17 May 2021 in CAMP 167/2021 and to strike out their Notice of Appeal and dismiss the appeal in CACV 643/2020.

2.  The plaintiff brought an action (HCA 899/2012)  against the 1^st defendant, who is the plaintiff’s daughter, and the 2^nd defendant, which is a company controlled by her, for an account of, among other things, the proceeds of sale of two residential properties, one in Kam Fai Mansion and the other in St Louis Mansion, both on MacDonnell Road.

3.  On 30 September 2016, Recorder Lisa Wong SC gave judgment in the action, after trial, in favour of the plaintiff, requiring the defendants to account for the proceeds of sale of the two properties.

4.  On 17 March 2017, the defendants applied for permission to appeal against the judgment out of time.  The application was rejected by the Court of Appeal (Yuen and Poon JJA)  on 28 February 2018: [2018] HKCA 109.  On 6 March 2018, the defendants issued a summons asking the Court of Appeal for “reconsideration” of their judgment at an oral hearing.  That application was dismissed by the Court of Appeal (Yuen and Poon JJA)  on 11 September 2018 based on written submissions: [2018] HKCA 597.

5.  On 27 June 2018, rejecting the defendants’ application for stay of execution, Lisa Wong J gave directions for the taking of the accounts (“Accounts Directions”): [2018] HKCFI 1482.  In particular, she ordered the defendants to file and serve, within 60 days, an account of the sale proceeds of the two properties together with an affirmation verifying the account and exhibiting supporting documents.

6.  The defendants failed to file and serve any such account or affirmation within the time stipulated.  This prompted the plaintiff to issue contempt proceedings (HCMP 129/2019)  with leave of the court, but those proceedings eventually failed because it was found that the sealed copy of the Accounts Directions endorsed with penal notices had not been personally served on the defendants prior to the deadline for compliance.  On that basis, on 24 November 2020, Lisa Wong J dismissed the application for committal, and extended the time for compliance with the Accounts Directions to 60 days from the date of that order: [2020] HKCFI 2953. 

7.  Meanwhile, the 1^st defendant’s summons issued on 29 March 2019 for a stay of execution of the judgment in the action (HCA 899/2012)  was dismissed by Master Lui on 17 April 2019, and her appeal therefrom was dismissed by Deputy High Court Judge Leung on 8 August 2019: [2019] HKCFI 1947. 

8.  The defendants have since filed certain affirmations in January and March 2021 in purported compliance with the Accounts Directions.

9.  Shortly after the dismissal of the contempt proceedings (HCMP 129/2019), on 16 December 2020 the 1^st defendant issued a Notice of Appeal in CACV 643/2020, which was stated to be an appeal from HCMP 129/2019 but which sought to set aside the Accounts Directions and particularly the order therein requiring the defendants to file and serve an account and affirmation.  Quite apart from wrongly stating that it was an appeal from HCMP 129/2019 (being the contempt proceedings in which the defendants had prevailed), this purported appeal was irregular as it was lodged long out of time.

10.  After being informed by the court that if she wanted to set aside the Accounts Directions then an extension of time for appeal should be sought, the 1^st defendant issued a summons on 25 March 2021 in the Court of First Instance seeking such an extension of time.  In her Decision dated 5 May 2021,[1] treating the summons as an application to extend time for an application for leave to appeal against the Accounts Directions, Lisa Wong J dismissed the summons with indemnity costs on the grounds that there was an “extremely serious delay”, the delay was inexcusable, and the proposed grounds of appeal were “utterly devoid of merits”.  Rejecting the 1^st defendant’s contention that the plaintiff would not be prejudiced by the extension of time, the judge noted that the plaintiff, who was of advanced age and of modest means, had not made any recovery despite having obtained judgment in the action in 2016.  A subsequent application by the defendants to vary the costs order nisi was dismissed by the judge on 17 June 2021: [2021] HKCFI 1740.

11.  The defendants have now applied to this court by summons dated 17 May 2021 in CAMP 167/2021 for an extension of time to lodge a notice of appeal against the Accounts Directions.  On the same date they lodged a “Statement as to why leave to appeal should be granted” together with draft grounds of appeal as well as an affirmation of the 1^st defendant.  That affirmation was subsequently expunged pursuant to the directions of the Registrar of Civil Appeals on 28 May 2021 for the reason that it did not explain the reasons for the delay.  The defendants were given leave to file, and did file, an affirmation on 26 July 2021 to explain the delay.  The plaintiff has lodged written submissions dated 2 August 2021 (received by the court on 10 August 2021)  in opposition to the application.

12.  As for CACV 643/2020, given the irregularities mentioned above, the Registrar of Civil Appeals gave directions on 18 March 2021 asking the 1^st defendant to make written submissions as to why the appeal should not be dismissed with costs.  The 1^st defendant lodged those submissions on 7 April 2021.  The plaintiff responded with written submissions received by the court on 26 May 2021.

13.  As leave had been granted for the 1^st defendant to represent the 2^nd defendant in these proceedings, on 18 August 2021 the Registrar of Civil Appeals directed that the Notice of Appeal in CACV 643/2020 and the summons in CAMP 167/2021 be treated as having been lodged by both defendants, and be referred to this Court for decision.

14.  Dealing first with the summons in CAMP 167/2021, we consider it appropriate to deal with the matter on paper.  As the judge observed, there had been an extremely serious delay in the defendants’ attempt to appeal against the Accounts Directions which were given in June 2018.  The 1^st defendant’s affirmation dated 26 July 2021 states that the defendants did not delay since they filed the Notice of Appeal in CACV 643/2020 within 28 days from the decision in HCMP 129/2019.  This is plainly misconceived, since the defendants are now seeking to challenge the Accounts Directions which were made in June 2018 in the original action of HCA 899/2012, not in HCMP 129/2019 which was the contempt proceedings.  Then it is said that when the Accounts Directions were given on 27 June 2018, the defendants were awaiting the decision of the Court of Appeal in HCMP 620/2017.  Plainly there was no reason why the defendants should wait for the “reconsideration” decision of the Court of Appeal and allow time to lapse for appealing against the Accounts Directions.  In any event, the Court of Appeal gave its decision on 11 September 2018, after which there was still an inordinate delay on the part of the defendants.  Nor is it an excuse to say that the defendants were preparing the accounts or waiting for the decision in the contempt proceedings.  These steps provided no justification at all for the delay.  As to the fact that the time for compliance with the Accounts Directions was extended on 24 November 2020, this does not affect the prescribed time limit for an appeal against the Accounts Directions themselves.  The summons in CAMP 167/2021 should be dismissed on the ground of inordinate and inexcusable delay alone.

15.  Further, the draft grounds of appeal advanced relate to the amendment of the statement of claim allowed at trial.  They have been dealt with by the judge in her recent decision of 5 May 2021 at paragraphs 17 to 20. For the reasons she has given which we shall not repeat, those grounds are wholly misconceived.  In addition, given that the defendants have failed to raise any appeal against the judgment in the action, it is difficult to see what possible grounds they have to appeal against the Accounts Directions which are simply consequential directions given to implement the accounts ordered in the judgment.

16.  For these reasons, we dismiss the summons in CAMP 167/2021 with indemnity costs, summarily assessed in the sum of $39,000.

17.  Since the application is wholly without merit, we make an order under Order 59 rule 2A(8)  of the Rules of the High Court (Cap 4A)  that no party may request for the determination to be reconsidered at an oral hearing.

18.  Turning to the Notice of Appeal in CACV 643/2020, as formulated it seeks an order:

“ (1)  that the orders set out in Paragraphs 1(a)  and 2(a)  of the Order made thereunder by the Honorable Madam Justice Lisa Wong on 27^th June 2018 and on 24^th November 2020 be set aside;

(2)  that the Order of HCA 899/2012 dated 3 December 2020 be set aside;

(3)  that the execution of Paragraphs 1(a)  and 2(a)  in 4. of the Order dated 24 November 2020, to be extended to 23^rd January 2021 attached a panel notice, be stayed pending the Court of Appeal’s judgment;

(4)  to save time and cost that Wong Yuk Tung and Legal Aid pay Wong Po Ling and Wonggenos Enterprises Company Limited costs of HCA 899/2012 the same amount of costs the Plaintiff and Legal Aid claimed and taxed in HCA 899/2012, and cost of HK$160,000 of HCMP 620/2017 on a summary judgment basis” [sic].

19.  As for (1), it was a purported appeal filed out of time, without leave, to challenge the Accounts Directions given on 27 June 2018 for the defendants to file accounts and a verifying affirmation.  The order made on 24 November 2020 simply granted an extension of time for compliance.  Following the dismissal of the application in CAMP 167/2021 for leave to appeal out of time, this challenge is impermissible.

20.  As for (2), the defendants have clarified that this is a reference to the order made on 24 November 2020 a sealed copy of which was filed on 3 December 2020.  This was the order extending the time for compliance with the relevant part of the Account Directions.  The challenge against this order is clearly ancillary to the challenge against the Accounts Directions of 27 June 2018, as are the request for a stay of execution in (3)  and the request for costs in (4).

21.  For these reasons, the Notice of Appeal in CACV 643/2020 is struck out and the appeal dismissed with indemnity costs, summarily assessed in the sum of $48,000.

22.  The plaintiff’s own costs in relation to both CAMP 167/2021 and CACV 643/2020 are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).