CHUNG SUET WAN v. CHUNG SUET HAN AND ANOTHER

DCCJ 5534/2020

[2024] HKDC 2166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5534 OF 2020

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DECISION

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Introduction and Background

1.  By Summons dated 20 November 2024 (“the Summons”), the Plaintiff applies for: (1) extension of time to appeal against my Judgment handed down on 24 October 2024 (“the Judgment”); and (2) stay of execution of the Judgment if extension of time is granted.

2.  For consistency and ease of reference, I shall continue to adopt the terms and abbreviation as defined in the Judgment (see [2024] HKDC 1699) in this decision.

3.  Under O 58, r 2(4)(b) of the Rules of the District Court, Cap 336H, an application for leave to appeal from a judgment, order or decision of a judge must be made 28 days from the date of the judgment, order or decision.

4.  As the Judgment was dated 24 October 2024, the application for leave to appeal should have been made on or before 21 November 2024 (“the Deadline”). Hence an extension of time is required for making the application for leave to appeal.

5.  The Summons is supported by the Affirmation filed by P on 20 November 2024 (“P’s 1^st”) and the 2^nd Affirmation of P filed on 2 December 2024 (“P’s 2^nd”)[1]. By an Affirmation of Wong Hon Chung filed on 9 December 2024, on behalf of Ds, the Summons is opposed by Ds.

6.  In P’s 1^st, essentially, P stated that:

(1)  Due to the negligence and default on the part of her handling solicitor, Messrs Gallant (“P’s former solicitors”)[2], it was not until 4 November 2024 that she was first notified of the Judgment being handed down and she thought it was handed down on that day;

(2)  It was not until 8 November 2024, when she met with P’s former solicitors and counsel (who represented her at the trial before me), that she was told the Judgment was handed down on 24 October 2024 and that it was unfavourable to her. She was not fully explained the content of the Judgment nor the timeframe or procedures for appeal;

(3)  On 9 November 2024, P first contacted her current solicitors Messrs Chung & Kwan (“P’s current solicitors”) to enquire about the legal procedure regarding appeal and on 15 November 2024, P engaged them to act for her;

(4)  Between 11 and 18 November 2024, P attended the office of P’s former solicitosr to collect the papers for this case and handed them to P’s current solicitors. The majority of the court documents were only provided by P’s former solicitors on 18 November 2024. However, a USB which included the softcopy of the trial bundles (“the USB”) were provided to her on 11 November 2024;

(5)  Between 13 November 2024 to 17 November 2024, P was in the Mainland for urgent business matters; and

(6)  On 19 November 2024, she met with Mr Chan of P’s current solicitors who advised her about the present appeal in particular that the deadline for appealing against the Judgment was 21 November 2024.

7.  In P’s 2^nd, P further stated inter alia:

(1)  She had tried her best to engage P’s current solicitors within a short period of time;

(2)  Given the short delay, she verily believes that there will not be any real, substantial and actual prejudice to Ds; and

(3)  P’s current solicitors inform her that the Notice of Appeal, a draft of which was exhibited (“NOA”) is now ready to be filed if extension of time is granted.

Applicable Principles

8.  The applicable principles for the exercise of the court’s discretion to extend time to appeal are well established and not disputed. The court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the other party if the application is granted. On the merits, where delay is inexcusable although insubstantial, the party seeking extension has to show a reasonable prospect of success. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success. See Lee Chick Choi v Best Spirits Co Ltd (unrep) HCMP 371/2015, 21 May 2015, §19 cited with approval in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §9.

9.  The modern authorities disapprove of a rigid and mechanical approach which focuses on the reasons for and length of the delay. Instead, the court must consider all the circumstances and decide whether the overall justice of the case require the exercise of the discretion to extend time: see Hong Kong Civil Procedure 2025, Vol 1, §59/4/9.

Analysis

Reasons for and length of the delay

10.  In the present case, even on P’s case, at the latest on 8 November 2024, P knew that the Judgment had been handed down on 24 October 2024 and was given a copy of it by P’s former solicitors. She was told that the Judgment was unfavourable to her. She plainly had the opportunity to seek legal advice from P’s former solicitors and the trial counsel about appealing and the procedure. At that time, she still had almost 2 weeks before the Deadline.

11.  Even a legally unrepresented litigant has a duty to make reasonable enquiries and take prompt steps to ascertain the proper timeframe and procedure to appeal. See:

(1)  Tsui Yuen v Ho Tse Wai, Philip Li & Partners (A firm) (formerly known as Ho, Tse, Wai & Partners) [2019] HKCFI 2431 per Marlene Ng J at §14 : “… Even though P was not legally represented, upon receipt of the Judgment which was an adverse judgment, it was incumbent upon P to be jealous in taking prompt steps to ascertain the proper procedure and timeframe for appeal…”; and

(2)  Wong Yuk Tung v Wong Po Ling and Another [2021] HKCFI 1267 per Lisa Wong J at §15(1): “Litigants in persons are expected to comply with the same practice and procedure as other users of the court. Although a party acting in person does not have the benefit of paid legal advice and representation, they should make all reasonable enquiries necessary to ascertain the appropriate procedure for the next step that he intends to take so as not to jeopardise the timely process of the cause or matter.”

12.  In the present case, P did have the benefit of legal advice and representation. Even if she was not fully explained the Judgment and the time and procedures for appealing, there is no explanation why could not have asked or clarified with P’s former solicitors or counsel.

13.  Even if P wished to engage new legal representatives, given that she had obtained the USB on 11 November 2024, there is no good reason why the USB could not have been handed over to P’s current solicitors then. The USB contained the trial bundles. At that point in time, with more than a week before the Deadline, P’s current solicitors should have been able to form a view on the merits of appealing and made an application for leave to appeal within time. Even if the USB did not contain the parties’ Opening Submissions and Closing Submissions, on 12 November 2024 she obtained them (save for P’s Opening Submissions) and had provided them to P’s current solicitors. Those documents were amply sufficient to form a view on the merits of appeal and make the necessary application for leave to appeal.

14.  It was P’s own choice to seek advice and representation concerning the appeal from a new firm of solicitors. She must have appreciated that no doubt they would require additional time to consider and prepare the application for leave to appeal. In the circumstances, she had to act with even greater haste and bear responsibility for any delay caused by her choice.

15.  In the circumstances, I do not accept, as submitted by Mr Tang, counsel for P, that P is blameless and that she had used her best endeavor to file the Summons and P’s 1^st before the Deadline.

16.  In all, I am not satisfied that the delay, albeit short, is excusable.

Prejudice if extension is granted

17.  Whilst I would accept given the relatively short delay there should not be any prejudice to Ds if time was extended, the absence of prejudice is not a ground to extend time: see The Hong Kong and Shanghai Banking Corporation Limited v Sy Shun Wu & Ors [2018] HKCA 736, §10.

Merits

18.  Given that I take the view the delay although insubstantial was inexcusable, P must show a reasonable prospect of success on the merits. Even if I was wrong on whether the delay was excusable, if I take the view the intended application for leave is hopeless, then an extension of time should not be granted.

19.  Mr Tang submitted that “if an informed assessment of the prospects of success of an appeal can only be made at a hearing equivalent to the hearing of the appeal itself, the overall interests of justice require the would-be appellant’s time to appeal be extended without any consideration of the merits”. He relied upon the case of Trident Engineering Co Ltd v Mansion Holdings Ltd & Another [2001] 1 HKLRD 783 at 790F-H. I have two observations on this submission.

20.  Firstly, in Trident Engineering Co Ltd, Keith JA plainly accepted that whilst merits should not be afforded the same degree of prominence in every case, there is no doubt that merits should be considered (see 788A-F). In other words, it is not that there are cases where there needs to be no consideration of the merits, but it is a question of extent. As the learned judge took the view that the short delay was caused by the mistake of the solicitors, which was an understandable and excusable one (see 789B-D and 790F-G), merits played a less prominent role in that case. That the learned judge must have accepted that merits still played a role is also made clear from the case of Chiu Sin Chung v Yu Yan Yan Angela [1993] 1 HKLRD 225 and the passages quoted therefrom by him (see 788E-F and 788H-J).

21.  Secondly, even if Keith JA held there maybe cases where the circumstances are so exceptional, that time may be extended without a consideration of the merits, this would be where in order to assess the merits, a lengthy and time-consuming hearing is necessary (see 789J- 790). In that case, the application for extension of time to appeal was made to the Court of Appeal against the decision on costs of the first instance judge. Furthermore, it was noted that the defendant’s counsel was not in a position to address the court at that hearing on the merits (see 790D-E). In the present case, given that I am well familiar with the case having heard the trial of the action and given the Judgment, and there is no reason why Mr Tang could not address me on the merits of the grounds of appeal contained in the NOA (which he confirmed he had drafted), I was not satisfied that a lengthy and time-consuming hearing is necessary. I therefore asked Mr Tang to address me on the merits of the intended application for leave to appeal.

22.  Pursuant to s 63A of the District Court Ordinance, Cap 336, no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some reason in the interest of justice that the appeal should be heard.

23.  It is well-established that the Court of Appeal does not generally interfere with the judge’s findings of fact particularly where they turn on which witnesses are to be believed or the weight to be attached to particular evidence.

24.  Moreover, as Kwan JA (as she then was) pointed out in 秦錦釗 及 香港特別行政區 [2018] HKCA 167 at §8, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Rather, the appellant should focus on the first instance judge’s reasoning, pinpoint the error and the basis for saying that the judge has erred.

25.  Ground 1 of NOA states that I erred in law when applying the law on common intention constructive trust. In so far as it is contended (at paragraph 1 of NOA) that I applied the wrong test on common intention constructive trust, the applicable principles were never disputed by then counsel for P, as recorded in paragraphs 33, 40 and 43 of the Judgment. In any event, those principles cannot be disputed as they are well-established.

26.  At the hearing before me, Mr Tang said there was an English decision which he wished to rely on but was not able to provide a copy of the same until after the hearing. After the hearing, a copy of an extract from Underhill and Hayton, Law Relating to Trusts and Trustees, (20^th Edn), §§32.29-32.31 and the case of Grant v Edwards and Another [1986] 1 Ch 638 were provided to me. Grant is a well-known case whereby the plaintiff, who was separated from the husband, moved into a house purchased by the defendant. The defendant had told the plaintiff that her name was not included on the title because it would cause some prejudice in the matrimonial proceedings between her and her husband. As there been no written declaration or agreement nor any direct provision by the plaintiff of part of the purchase price, the plaintiff relied upon a common intention between her and the defendant, acted upon by her, that she should have a beneficial interest in the property. The court looked to the expenditure incurred by the defendant referable to the acquisition of the house to infer common intention and to show that the claimant has acted upon it. In that case, it was held that the substantial indirect contribution to the mortgage payable were sufficient to demonstrate that the plaintiff did act to her detriment on the faith of the common intention between her and the defendant that she would have some beneficial interest in the house. I cannot see how that case or the extract from Underhill and Hayton demonstrate that I had erred in law.

27.  In so far as it is asserted in paragraph 2 of NOA that P had paid more than one-third of the purchase price of the Property, whilst that was P’s case, as I did not find P a credible and reliable witness and I preferred the evidence of D1 and D2, I held that P failed to prove on the balance of probabilities the Further Agreement and Common Intention. See Judgment, §§89-94. Rather, I accepted D1’s case that P had agreed to lend the sum of HK$115,000 together with her share of the legal costs, commission for the estate agent and other miscellaneous expenses (see paragraphs 55(1), 56(1) and 91 of the Judgment). Thus D1 had also contributed one-third of the purchase price and it is not that P contributed two-third.

28.  Counsel for P throughout the trial accepted that P beared the burden of proving her beneficial ownership in the Property was different from the legal ownership. The argument (at paragraph 2 of NOA) that it was for Ds to offer compelling evidence to prove their cases and prove that P had gave up her interest in favour of the 1^st Defendant is, with respect, hopelessly misconceived.

29.  Ground 2 of NOA states that I erred in adopting an erroneous approach in evaluating P’s evidence. Essentially, it is said (see paragraphs 3 and 4 of NOA) that I erred in finding that P gave inconsistent evidence or her evidence was inconsistent with the pleaded case, which I found undermined her credibility. As to the approach of assessing credibility of a witness, that the court will have regard to matters including internal consistency is well-established and was not disputed by parties’ counsel (see paragraph 36 of the Judgment). There can be no basis to say that I erred in adopting this approach.

30.  As for my finding on credibility of P, it is also well-established that the Court of Appeal will give great weight to the first instance judge’s views of conflicting testimony who enjoys the advantages which comes from receiving the evidence first hand and having observed the manner and demeanour of the witnesses. Moreover, the higher court ought not to take the responsibility of reversing conclusions so arrived merely as the result of their own comparisons and criticisms of witnesses, and of their own view of the probabilities of the case: see Hong Kong Civil Procedure 2025, Vol 1, §59/0/53.

31.  Mr Tang submitted that my holding that P has self-professed experience in investment was wrong (see paragraph 3 of NOA). I fail to see how that my rejection of a remark or suggestion by P’s counsel that P was a layman (which was never the evidence of P herself at trial) in paragraph 50(1) of the Judgment can affect or render wrong my view of her credibility. Indeed, the fact that not long before the acquisition of the Property, P had purchased and then sold a flat in Maple Garden for profits was common ground. According to P, she sold it on 18 October 1996 for HK$3,970,000 and after deducting the outstanding loan of HK$1,832,567 she had HK$2,137,432 in cash. Moreover, it was P’s own evidence that at the Chinese new year’s eve dinner she talked about her intention to purchase a property for investment and real estate speculation. Apart from Maple Gardens, the court also heard that P also was the owner of a property in Lucky Plaza as well. Based on these, any argument that my rejection of the suggestion of counsel was wrong is bound to fail.

32.  As for the submissions that it was plainly wrong for me to say that P first mentioned the excuse offered by D1 for keeping her name as registered owner of the Property was to create a 2 to 1 situation (paragraph 51(2) of the Judgment and paragraph 5 of NOA), that this first came out in cross-examination is not disputable. This was acknowledged by counsel for P in P’s Closing Submissions (see §34.7.1: “During the cross-examination, P added that D1 persuaded her to keep her name so that it would be a 2:1 situation (against D2)…” [my emphasis])

33.  Ground 3 of NOA states that I erred in disregarding facts and evidence. In reality, it is a challenge to my findings based on the contemporaneous documents, inherent probabilities and common sense.

34.  Whilst it was stated (at paragraph 6 of NOA) that I erred in considering D1 must have beneficial interest in the Property when looking at the contemporaneous documents but actual beneficial ownership may not be wholly reflected in the conveyancing documents, the lack of contemporaneous document in support of P’s case was only one matter that I took into account which I accepted was not on its own fatal to P’s case: see paragraphs 52 and 89-91 of the Judgment.

35.  As for the assertion that I was plainly wrong in making findings based on inherent likelihood (at paragraph 7 of NOA) and that they are against common sense and commercial sense (paragraph 8 of NOA), these are matters the Court of Appeal will not intervene unless they are plainly wrong. On P’s case on the bonus, I had considered and formed my view at paragraph 52(4) of the Judgment. As for the assertion that D1 “volunteered to be added as joint tenant for the management of the Property owing to her work relating to accounting”, there is no evidential basis for this.

36.  As for the suggestion that the fact there was no evidence of updates on repayment of the loan between P and D1 (paragraph 8 of NOA), it totally overlooks the fact (which was not disputed) D1 had all along been paying for the monthly mortgage repayments and expenses of the Property as the rental income was insufficient (see paragraph 52(5) of the Judgment). According to D1, this was to give effect to the Agreement for D1 to repay P (see paragraph 26 of the Judgment).

37.  Concerning the assertion that D1 failed to give a reasonable explanation as to why the Note was handwritten (paragraph 9 of NOA), I did not consider there was any reason to doubt the authenticity of Note (see paragraph 78 of the Judgment). In the circumstances, it is neither here nor whether it was handwritten or printed.

38.  Paragraph 10 of NOA merely asserts that D1’s evidence in respect of the clearing of the cheque must be viewed with skepticism simply because it is said that no evidence was adduced to support that she was busy. The matters that were raised attacking D1’s credibility and my views were set out in paragraphs 55-80 of the Judgment. It was never put to D1 nor submitted in closing submissions that this was a matter that cast doubt on D1’s credibility.

39.  Paragraph 11 of NOA is not understood. As to when according to P she first was introduced to D2 and they viewed properties together, and when according to Ds’ case P approached them to jointly invest in properties, these are all set out in Section B of the Judgment. The point made in paragraph 52(1) of the Judgment is that P’s case was inherently unlikely in that having met D2 on two previous occasions P was willing to sign the PSPA with D2 for the joint purchase of the Property.

40.  Paragraph 12 of NOA also seems to miss the point that according to the Board Minutes of Homeast (and was not disputed by P) she was only entitled to HK$195,000 so her case that she paid HK200,000 for repayment of the Mortgage is not consistent with that document.

41.  Ground 4 of NOA states that I erred when considering the authority of Ngan In Leng v Chu Yuet Wah [2022] HKCFI 558. The fact that D2’s witness statements were nearly identical to D1’s witness statements was considered by me and dealt with at paragraphs 82 to 83 of the Judgment. It is therefore not correct that I failed to take that into account.

42.  As to the contention that D2 was evasive and failed to give particulars on the Repayment Agreement, the only two matters raised by P’s counsel at trial against the credibility of D2, which I considered, were as set out in paragraphs 85 and 86 of the Judgment. In any event, I found the Repayment Agreement was evidenced by the Note, which I also found there was no reason to doubt its authenticity (see paragraph 78 of the Judgment). I cannot see how my finding on the credibility of D2 can be demonstrated to be wrong.

43.  For all the above reasons, I am of the view that the intended application for appeal is hopeless and does not enjoy any reasonable prospect of success.

Disposition and Orders

44.  Accordingly, I would not exercise my discretion to extend time for leave to appeal as, having considered all the circumstances, the interests of justice do not so require. It follows therefore that there is also no basis to grant a stay of execution pending appeal as there is no pending appeal.

45.  Counsel for parties were agreed that the costs of the Summons should follow the event.

46.  I therefore order that the Summons be dismissed with costs to Ds, to be taxed if not agreed, with certificate for counsel.