CHU KWOK KEE KOOKIE v. MING CHOR PAO AND ANOTHER

HCMP 704/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 704 OF 2015

____________

____________

____________

________________________

REASONS FOR DECISION

________________________

1.  The 1^st defendant (“D1”) is the mother of the plaintiff (“P”) and the 2^nd defendant (“D2”). D2 is self-represented. It was P’s case that D1 was mentally incapacitated prior to 31 December 2013 being the day he commenced HCMH83/2013 for an order that a committee be appointed to handle D1’s assets under the Mental Health Ordinance Cap 136 (“MHO”). On 15 June 2015, L Chan J in HCMH83/2013 held that D1 was a person incapable, by reason of mental incapacity, of managing and administering her property and affairs, and ordered that P be appointed as the committee of the estate of D1 (“Committee”) (“MH Order”). Pursuant to the powers under the MH Order, on 18 November 2015 P in his capacity as the Committee issued an originating summons in HCMP3083/2015 to seek inter alia a declaration that the enduring power of attorney dated 5 January 2014 (“EPoA”) was invalid and void. D2 appealed against the MH Order in CACV162/2015. On 30 September 2016, the Court of Appeal dismissed D2’s appeal (“CA Judgment”).

2.  Turning back to the present proceedings, on 12 June 2015, I handed down decision (“12/6/15 Decision”) in respect of D2’s appeal against the order of Master Lai dated 20 May 2015 that (a) leave be granted for P to file and serve supporting affidavit for P’s originating summons herein (“OS”) out of time, (b), P’s supporting affirmation filed and served on 19 May 2015 do stand, (c) no order be made in respect of D2’s summons filed on 13 May 2015 (“D2 Summons”), and (d) costs of the D2 Summons and P’s Summons filed on 15 May 2015 be paid by P to D2 summarily assessed at $200 to be paid forthwith (“Appeal”). By the 12/6/15 Decision, I dismissed the Appeal, and granted extension of time until 3 July 2015 for D2 to file and serve his affirmation in opposition to the OS.

3.  Since handing down the 12/6/15 Decision,

(a) D1 filed a summons on 6 August 2015 seeking inter alia to dismiss / strike out the OS, to vacate the registration of the EPoA at the Land Registry by memorial no 15033001300019 (“OS Registration”), and to claim compensation against P “which may be incurred as the [OS Registration] hinder the completion of the Sale & Purchase Agreement of the Property on 28 May 2015” (“D2 2^nd Summons”); and

(b) P filed a summons on 15 December 2015 seeking leave to withdraw the present proceedings against D1 and D2 and to vacate the OS Registration with provision for costs (“P 2^nd Summons”).

4.  The D2 2^nd and P 2^nd Summonses came before B Chu J on 21 December 2015. By her Decision handed down on 28 January 2016 (“28/1/16 Decision”), B Chu J inter alia dismissed the D2 2^nd Summons, adjourned the P 2^nd Summons sine die with liberty to restore after determination of CACV162/2015, and the present proceedings be adjourned sine die with liberty to restore after determination of CACV 162/2015.

5.  These Reasons for Decision should be read together with 12/6/15 and 28/1/16 Decisions, and for convenience I adopt the background and procedural developments of these proceedings as set out in the 12/6/15 and 28/1/16 Decisions and will not repeat them here. I also adopt the abbreviations in the 12/6/15 Decision unless otherwise defined in these Reasons for Decision.

6.  In the 28/1/16 Decision, B Chu J dismissed the D2 2^nd Summons for the following reasons:

“6. It was D2’s case that [D1] executed [the EPoA] on 15 January 2014 appointing him as attorney dealing with, amongst other things, the Property ...... D2 has also claimed that he has in his possession a copy of [D1’s] last will dated 24 October 2013 (“24.10.13 Will”).

......

25. The mental capacity of [D1] at the time of the execution of the [EPoA] and also at the time of her execution of the alleged 24.10.13 Will is clearly a hotly contested issue between P and D2, and there will have to be a full trial on this, and it is anticipated that medical evidence will be called by both sides.

26. [D2 2^nd Summons] seeking a summary dismissal / striking out on the ground that the [EPoA] should be declared valid at this stage without a full trial is thus misconceived. I am therefore of the view that [D2 2^nd Summons] should be dismissed.”

7.  In the 28/1/16 Decision, B Chu J adjourned the P 2^nd Summons sine die with liberty to restore after determination of CACV162/2015 for the following reasons:

“27. P has already issued [HCMP3083/2015] in his capacity as Committee for [D1’s] estate. P realizes that he cannot maintain two actions, one in his personal capacity and one in the capacity as [D1’s] Committee and that is why he seeks leave to withdraw the present action.

......

29. There has already been a proliferation of actions between P and D2. Rather than granting leave for P to withdraw at this stage, I am of the view that the present action should be adjourned sine die pending D2’s appeal [in CACV162/2015]. It is only after determination of D2’s appeal that the court will be in a position to decide whether to allow this action to proceed in P’s personal capacity, or to allow [HCMP3083/2015] to proceed in P’s capacity as [D1’s] Committee. One of the two actions can then be dismissed.”

8.  On 26 July 2016 (ie before the determination of appeal against the MH Order in CACV162/2015), D2 filed a summons to seek the following reliefs (“D2 3^rd Summons”):

“This action to be restored and judgments be made subject to the determination of CACV162/2015:

(1) to strike out and dismiss the [OS] unless [P] has solid evidence to prove that the [EPoA] is invalid;

(2) to vacate the [OS Registration];

(3) to recover damages from [P].”

9.  Under the 28/1/16 Decision, B Chu J granted liberty to restore the present proceedings after the determination in CACV162/2015. On 30 September 2016, the Court of Appeal handed down the CA Judgment in CACV162/2015, so either party can apply to restore the present proceedings.  But I cannot see how D2 can apply to restore the present proceedings for the particular purpose that “judgments be made” to strike out and dismiss the OS (unless P had solid evidence to prove the EPoA was valid), to vacate the OS Registration, and to recover damages from P. These reliefs sought under the D2 3^rd Summons were the same reliefs as sought in the D2 2^nd Summons, and by the 28/1/16 Decision B Chu J had already dismissed the D2 2^nd Summons for the reasons set out in paragraph 6 above. There was no appeal against the 28/1/16 Decision, which remained valid and binding against D2. In the circumstances, D2 could not issue a fresh D2 3^rd Summons to restore the present proceedings in order to seek the same reliefs as in the D2 2^nd Summons that had already been dismissed. I particularly note B Chu J’s dismissal of the D2 2^nd Summons was not made subject to determination of CACV162/2015.

10.  Further, D2’s appeal against the MH Order was dismissed. Such dismissal confirmed P was lawfully appointed as the Committee, and P as the Committee was authorised to consider, as he thought fit, to take action including the commencement of litigation to set aside all wills and powers of attorney that D1 had executed since February 2013 including but not limited to the EPoA. In the circumstances, P as the Committee was entitled to commence HCMP3083/2015, and it would be appropriate for P in due course to restore the P 2^nd Summons for hearing.

11.  However, the dismissal of D2’s appeal against the MH Order by the Court of Appeal in CACV162/2015 could not aid D2 in respect of the D2 3^rd Summons. D2 explained he chose to prematurely file the D2 3^rd Summons in July 2016 before the CA Judgment was handed down in September 2016 because at that time he thought he had high prospects of success in respect of his appeal against the MH Order in CACV162/2015 and he did not wish to further delay the matter, but as it turned out the inclusion of the caveat “subject to the determination of CACV162/2015” in the D2 3^rd Summons could not help him. In my view, it was an abuse of process for D2 to seek to restore the present proceedings for the purpose of seeking judgment on the same reliefs sought under the D2 2^nd Summons that had been dismissed by B Chu J. Such dismissal by B Chu J was not subject to any determination of CACV162/2015, and the learned judge made clear that a full trial would be required and summary application for the reliefs sought was misconceived. There was no merit in respect of the D2 3^rd Summons, and at the hearing on 4 October 2016 I dismissed such summons.

12.  P asked for costs of the D2 3^rd Summons to be summarily assessed. D2 asked for the issue of costs to be reserved until the end of the present proceedings. I see no reason to depart from the usual principle that costs should follow event, and I have found that the D2 3^rd Summons was without merit. Therefore, at the hearing on 4 October 2016, I ordered D2 to pay P costs of such summons summarily assessed in the sum of $2,500 to be paid forthwith.