LI CHEONG v. LEE KWAI TAI also known as LI KWAI TAI

HCMP 3190/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3190OF 2016

(ON AN INTENDED APPEAL FROM HCAP NO 32 of 2012)

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REASONS FOR JUDGMENT

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

1.  This is an application for leave to appeal out of time in respect of the judgment of Deputy High Court Judge Yee of 8 June 2016. At the hearing on 11 April 2017, after hearing counsel, we dismissed the Plaintiff’s application for extension of time to appeal against that judgment. The judgment was given at the resumed trial of a probate action. The Plaintiff claimed to be the nephew of the Deceased Li Tin Sang. His case was that the Deceased died intestate without leaving any issue and he applied for letters of administration to be granted to him. The Defendant claimed to be the daughter of the Deceased and counterclaimed for letters of administration to be granted to her. The Plaintiff stated in his witness statement that the Defendant was not the child of the Deceased.

2.  The trial of the action originally took place on 22 September 2015. On that date, the parties agreed for a joint DNA report to be obtained and the trial was adjourned.  The joint DNA report was eventually obtained.  The report confirmed that the Plaintiff and the Defendant are cousins, thus contradicting the Plaintiff’s case.  By then, the Plaintiff had put in a Notice to Act in Person stating his address for service at No 14, 1^st Floor, Sun King Terrace, Sai Kung, New Territories.

3.  After the DNA report had been available, solicitors for the Defendant sent a copy of the same on 17 December 2015 to the Plaintiff by post to his address for service.

4.  On 1 February 2016, solicitors for the Defendant wrote to the court seeking directions to proceed with the matter in light of the DNA report and a new party Li Soo Tan having filed a caveat on 24 September 2015. That letter was copied to the Plaintiff by “Recorded Delivery” sent to his address.  On 22 February 2016, the judge gave directions for the service of a Notice of Action on the new party and such directions were copied to the Plaintiff by post.

5.  The Defendant gave the Notice to the new party on 21 March 2016.  After that, solicitors for the Defendant wrote to the court on 21 April 2016 seeking an appointment for trial.  Again that letter was copied to the Plaintiff by post.

6.  The court responded on 3 May 2016 by letter (also copied to the Plaintiff by post) directing the trial be re-fixed before the judge in open court with 30 minutes reserved.

7.  On the same date, solicitors for the Defendant wrote to the Plaintiff by post informing him that they would attend the court on 13 May 2016 to fix a date for restoring the trial as directed by the judge. 

8.  The Plaintiff did not attend the appointment to fix date and the trial date of 8 June 2016 was fixed in his absence. 

9.  Solicitors for the Defendant informed the Plaintiff of the trial date by letter on 13 May 2016 and an affirmation of service was made by a clerk of the solicitors on 17 May 2016.

10.  The court also sent notice of hearing to the Plaintiff by ordinary post as well as registered post on 19 May 2016.  According to court records, delivery of the registered post was made on 21 May and it was subsequently returned as unclaimed mail.  The notice sent by ordinary post was not returned.

11.  The Plaintiff did not appear at the trial on 8 June 2016.  The judge dismissed his claim and proceeded to hear evidence on the counterclaim.  After hearing evidence, the judge gave judgment in favour of the Defendant on the counterclaim.

12.  The Plaintiff only came forward on 16 November 2016 issuing a summons for extension of time to appeal against the judgment.  In his affirmation of 16 November 2016 in support of the application he said he did not receive the notice of hearing for 22 September 2015.  He further said the judgment of 8 June 2016 was erroneous as his did not have a fair trial.  He said he did not know that there was a time limit for appeal as he was not familiar with legal procedures.

13.  Solicitors for the Defendant filed an affirmation on 19 December 2016 opposing the application.

14.  On 20 December 2016, a firm of solicitor came on record to act for the Plaintiff.  Since then the Plaintiff made two further affirmations in support of his application, one on 20 January 2017 and another one on 3 February 2017.

15.  In those affirmations, the Plaintiff said he was in Hong Kong most of the time in May and June 2016 and he produced the travel records obtained from the Immigration Department to substantiate his case.  He said he had not received notice of the appointment to fix the date for the trial and the notices of hearing.  He said he did not receive any letter, telephone call or any other efforts to reach him on 8 June 2016 reminding him to attend trial. Had he had notice of the trial, he said he had no reason not to attend. 

16.  Though he acknowledged he had the duty to check his mails and make proper arrangement for mails to delivered to him, he further explained that notices or letters sent by post to him might not have reached him.  He said at [19] of his 2^nd Affirmation:

“ 19. The size of my mailbox would not accommodate the size of envelopes usually used to contain Court documents. They simply could not have been inserted through the aperture of the mailbox. If they were hung outside of the mailbox or simply placed on the ground outside the entrance to my house, they could easily have been lost or even taken my mischievous children who frequently passed by my house. This may have explained why I have not been receiving the documents alleging sent by the Defendant’s solicitors. Over the years, I have found out some of the mails, such as Government’s invoices for rates, had been lost.”

17.  He accepted that he had previously encountered problem with mails regarding court hearing and he referred to the previous striking out of his claim due to his non-attendance at case management conference in January 2015.

18.  He said he only found out about the judgment of 8 June 2016 when a staff of the solicitors acting for Li Soo Tan had contacted him enquiring if his claim had been dismissed.

19.  He also said he had not received a copy of the DNA report, hence the conclusions in that report could not have the disincentive for him to take part at the trial.  In any event, he said he had other evidence support his case and the DNA report could not be conclusive.

20.  In his 3^rd Affirmation, he made extensive references to the audio recording of the hearing on 8 June 2016.  The transcript of the hearing since then becomes available and we have read the same.

21.  In the draft Notice of Appeal prepared by counsel for the Plaintiff, two grounds of appeal were set out:

“1. The learned Trial Judge erred in proceeding with the trial of the Counterclaim in the absence of the Appellant, who was unrepresented:

(a) No enquiry whatsoever was made regarding the absence of the Appellant and no attempt whatsoever was directed to be made in contacting the Appellant (who was at the time unrepresented) on the day of the resumed trial on 8^th June 2016, reminding him of the trial to be conducted on that day.

(b) Considering the resumed trial was fixed for only 30 minutes and the learned Trial Judge was originally contemplating adjourning the trial to another date, the learned Trial Judge should have adjourned the trial to another date which would give the Appellant another opportunity to be duly notified and attend the adjourned trial.

(c) Furthermore, the Plaintiff’s Counsel had already indicated to the Court that he was not quite prepared to conduct the trial in the absence of the Appellant and in light of another case recently instituted in which the plaintiff (a Madam Li Soo Tan) also claims to be the natural daughter of the Deceased.

(d) As a result, the Appellant was deprived the opportunity to be heard and a fair trial of his claims and the Counterclaim.

2. The learned Trial Judge erred in making the declaration that the Defendant was the ONLY surviving issue of the Deceased, for the following reasons:

(a) There is no factual evidence before the Court below that the Defendant is the ONLY surviving issue of the Deceased.

(b) The DNA Report did not support the conclusion that the Defendant is the ONLY surviving issue of the Deceased, but merely concluded that the Appellant and his siblings are very likely biological cousins of the Defendant.

(c) Having been informed of the newly instituted action by a plaintiff who also claims to be the natural daughter of the Deceased, and considering the Defendant’s Counsel had indicated to the Court that he was only seeking a declaration that the Defendant was the natural daughter of the deceased (not the ONLY natural daughter of the Deceased), the learned Trial Judge should have made the declaration that the Defendant was the surviving issue of the Deceased to prevent inconsistent judgments potentially arising from the other new action involving Madam Li Soo Tan.”

22.  The well-established approach to be adopted in an application for extension of time to appeal is set out recently in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  In that case, this Court reiterated that the approach (as applied by Kwan JA in Lee Chick Choi v Best Spirits Co Ltd HCMP 371 of 2015, 21 May 2015) should be adhered to.  The approach involved the consideration of the following factors in the exercise of discretion:

(a) The length of the delay;

(b) The reasons for the delay;

(c) The chance of success of the intended appeal;

(d) The prejudice to the other party.

Further, where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits.

23.  The length of the delay is substantial in the present case.  The Plaintiff’s explanation for the delay is that he was not aware of the trial and the judgment. 

24.  We do not accept his evidence as to his lack of knowledge of the trial date.  It is inherently incredible that he did not receive any of the letters or notices sent to him with regard to the progress of the case since the DNA report as set out in the earlier paragraphs of this judgment.  He had every reason to take the necessary steps to guard against missing post since his experience with the striking out of his claim in January 2015.  His travel record shows that he was in Hong Kong most of the time in the first half of 2016.  It is highly unlikely that all the letters sent to him relating to the litigation has gone amiss. 

25.  It is also inherently incredible that he took no step whatsoever to check the progress of the matter since providing samples for the DNA report. One would expect that he was eager to learn about the outcome since on his own case (as set out in his witness statement) the Defendant was not related to him by blood.  If the DNA report shows that the Defendant is not a cousin of his, she could not have been the daughter of the Deceased.  Since the laboratory was instructed jointly by his former solicitors as well as the solicitors for the Defendant, it can reasonably be inferred that his former solicitors would also be given a copy of the DNA report.  We can also infer that the Plaintiff could have access to the DNA report even though the former solicitor ceased to act for him.  The Plaintiff gave no account as to what transpired after samples were provided and what steps he had taken to ascertain the outcome.  We do not believe his bald assertion that he did not have knowledge about the report. 

26.  Likewise, we do not believe him as to his assertion that he did not receive the notices of hearing regarding the trial of 8 June 2016.  As stated earlier, not only had the solicitors for the Defendant informed him of the trial date by post, the court also sent him notices of hearing by ordinary as well as registered post.  The assertion that these notices were of such size that they could not be fit into his letter box is plainly disingenuous.  Though the notice by registered post was returned as unclaimed, this Court takes judicial notice that for mail sent by registered post the postman would have left a notice for collection of mail at the address for a reasonable period.  Thus, it was due to the Plaintiff’s omission to collect the mail within such period that the letter was returned.  In the meantime, the Plaintiff should have learnt of the trial date by the notice sent by ordinary post and the letter from the solicitors for the Defendant.

27.  It is not necessary for us to speculate on the reason why he decided not to attend the trial in light of the DNA report.  It suffices for us to say we find against the Plaintiff in his purported ignorance of the trial date and we do not accept his assertion that he would have attended trial had he been given notice of the hearing.  

28.  We are also skeptical as to his assertion that he only learnt of the outcome of the trial from the solicitors for Li Soo Tan shortly before he took out the summons in November 2016.  Li Soo Tan had been given notice of the present case.  Instead of applying to join in this action, her solicitor issued a writ in a new action HCAP 10 of 2016 in May 2016.  In that new action, the Plaintiff was named as the 1^st Defendant.  Li Soo Tan claimed herself to be the daughter of the Deceased.  She also joined the Defendant as the 2^nd Defendant in that action and denied that the Defendant was the daughter of the Deceased.

29.  The Plaintiff did not disclose what transpired between him and Li Soo Tan in that action.  Since the solicitors for Li Soo Tan were given notice on 18 March 2016 of the present action pursuant to Order 15 Rule 13A, they were aware of the possibility of their client being bound by the outcome in this action pursuant to Rule 13A(4) as no acknowledgement of service had been filed on behalf of Li Soo Tan in this action.  It is surprising to say the least that solicitors for Li Soo Tan did not deem fit to file acknowledgement of service on behalf of his client in this action and to seek to join in as a party.  It is also surprising that apparently they did nothing in terms of checking the progress of this action.

30.  From the court file, it seems that the Plaintiff did not file any acknowledgement of service or defence in HCAP 10 of 2016. 

31.  In light of the above, we do not find the Plaintiff to have a good explanation for the delay.  It is simply a case of the Plaintiff choosing to be absent from the trial. Proper notices were given to him about the trial date. The judge was entitled to proceed with the trial and gave judgment orally at the trial.

32.  It also follows that we do not see a real prospect of success in Ground 1 of the draft Notice of Appeal. Whilst it may be prudent for the court to delay the commencement of the trial for a 15 minutes or so when the Plaintiff did not turn up, the judge was fully entitled to proceed with the trial as a matter of discretion, particularly in light of the DNA report and the affirmation of service which he had read. A litigant, albeit a litigant acting in person, has a duty to arrive at court punctually and cannot have any legitimate expectation that the court or his opponent will remind him to attend trial and to delay the trial when he fails to appear.  

33.  The fact that the trial was only listed for 30 minutes is neither here nor there. Nor is it germane that initially counsel for the Defendant indicated that he had not prepared for trial. The appointment was clearly scheduled for trial and the notice of hearing clearly stated so.

34.  Given the failure to file any acknowledgement of service on behalf of Li Soo Tan despite the service of the Notice under Order 15 Rule 13A, the judge was entitled to proceed with the trial in this action notwithstanding the commencement of HCAP 10 of 2016.

35.  The Plaintiff had a fair opportunity to prosecute his claim and to contest the counterclaim of the Defendant. It was his absence from the trial despite notices having duly given that such opportunity was not utilized.

36.  The relevant approach in considering whether a judgment should be set aside due to the absence of a party can be found at para 35/2/1 of Hong Kong Civil Procedure 2017:

“ The following “general indications” should be taken into account when the court is asked to set aside a judgment obtained when a party failed to appear:

(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important; unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.

(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered; where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.  Per Leggatt L.J. in Shocked v. Goldschmidt [1998] 1 All E.R. 372.”

37.  In the present instance, instead of making an application to set aside the judgment, the Plaintiff sought to appeal against the judgment out of time. The relevant approach in relation to an application for extension of time to appeal has been set out at [22] above. Once we decide that there is no merit in Ground 1, the merit of the intended appeal must be tested by reference to the evidence before the judge as opposed to what evidence there could have been if the Plaintiff attended trial.

38.  As explained, we are of the view that the Plaintiff needs to show real prospect of success in the present circumstances. Notwithstanding the submissions by Mr Cheung on behalf of the Plaintiff, we do not see any merit in the appeal based on Ground 2. As we said, his evidence on the parentage of the Defendant was severely discredited by the DNA report. Actually, as he did not attend trial, no evidence had been tendered to the court on his behalf. His latest attempt to explain the outcome by reference to others in the village sharing the ancestry does not adequately account for the real impact of the conclusion in the DNA report. Based on the materials before the judge, there is no evidential basis for making such assertion.

39.  Ground 2 in the draft Notice of Appeal is a matter of little moment for the Plaintiff. Once it is concluded that the Defendant is a daughter to the Deceased, the Plaintiff could not have any claim in the probate action. This Court would not grant extension of time to the Plaintiff to pursue such an appeal. Further, there is evidence before the judge to support such declaration, see para 5 of the witness statement of the Defendant.

40.  In such circumstances, we find that there is no prospect of success in the Plaintiff’s intended appeal.

41.  We also see that there would be great prejudice to the Defendant if extension of time is granted. She is an old lady of 84 years old living in an elderly home and apparently not in very good health. The Deceased died in 1985. The action was commenced in 2012 and it had taken a long while before it came on for trial, initially in 2015, and subsequently in 2016. It cannot be in the interest of justice for the grant of representation in respect of the estate of the Deceased to be further delayed.

42.  For these reasons, we did not consider that an extension of time to appeal should be granted and we dismissed the summons of the Plaintiff of 16 November 2016. We also ordered the Plaintiff to pay the costs of the Defendant in this application. Having considered the statement of costs prepared by solicitors for the Defendant (asking for costs in the sum of $205,827), and hearing submissions from counsel on the same, bearing in mind the relative lack of complexity in the matter, we fix the costs of the Defendant at $110,000.