CHU HOI (INTERNATIONAL) LTD v. CHOW KWOK FONG

CACV 395/2022, [2024] HKCA 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 395 OF 2022

(ON APPEAL FROM LDPD NO. 1033 OF 2020)

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DECISION

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  In this appeal, the respondent seeks to appeal the order of Mr Alex Ng sitting as a Member of the Lands Tribunal (“the Member”)  given on 11 January 2021 dismissing her application (“Setting Aside Application”)  to set aside a default judgment (“Default Judgment”)  entered against her by the applicant in LDPD 1033/2020 (“LT Action”).  Leave to appeal was granted by Cheung JA on 22 October 2021.  The appeal has not yet been listed for hearing.

2.  By summons filed on 9 June 2023, the respondent applies for leave to adduce and rely on an affirmation made by her on 5 February 2021 (周國芳的非宗教誓章, “the 5 Feb 2021 Affirmation”)  and filed in the LT Action in connection with her application made to the Judge for leave to appeal.

3.  As appeared by its solicitors’ letter dated 28 July 2023, the applicant takes a neutral stance on the application.  The parties, however, differ as to the costs order to be made on the application. 

4.  Having considered the papers and the written submissions, we are of the view that it is appropriate to determine the application on papers without an oral hearing.

Background

5.  The Member has set out the factual background to the case in his decision refusing to give leave to appeal dated 10 May 2021 ([2021] HKLdT 32, “Leave Decision”)  at [1] to [10].  We need only highlight the following procedural history:

(1)  The LT Action concerns a property at Penthouse A (7^th Floor/Roof), 54 Leighton Road, Hong Kong (“the Property”). 

(2)  The applicant has since 1987 been the registered owner of the Property. It is the applicant’s case that the respondent is the tenant under a tenancy at will.

(3)  On 4 August 2020, the applicant filed a Notice of Application in the LT Action applying to recover vacant possession of the Property.  On 22 September 2020, the applicant obtained the Default Judgment upon the respondent failing to file a Notice of Opposition.

(4)  On 24 November 2020, the respondent, acting in person, issued the Setting Aside Application by way of a summons and a supporting affirmation. 

(5)  On 10 December 2020, the respondent engaged Au Yeung, Chan & Ho (“AYCH”), solicitors, to represent her.

(6)  At the hearing of the Setting Aside Application on 14 December 2020, the respondent was represented by counsel.  Her counsel conceded that the judgment was a regular judgment but submitted that the respondent would advance a defence of adverse possession, which stood to have a real prospect of success. By consent, the hearing was adjourned for the filing of further evidence and to be determined on the papers.

(7)  The respondent failed to comply with the directions given by the Tribunal and did not a supplemental affirmation within 14 days.  

(8)  On 6 January 2021, the applicant wrote to the Tribunal requesting for a dismissal of the Setting Aside Application. 

(9)  By a letter of the same date, AYCH informed the Tribunal that they had received no further instruction from the respondent and it was their understanding that the respondent had already filed a Notice to Act in Person[1]. In fact, it was only on 29 January 2021 that a Notice to Act in Person was filed.  Until then, AYCH remained on record as the respondent’s solicitors. 

(10)  On 11 January 2021, the Member ordered that the Setting Aside Application be dismissed.

(11)  On 5 February 2021, the respondent, acting in person, applied to the Tribunal for leave to appeal the dismissal of the Setting Aside Application out of time.  Her application was supported by the 5 Feb 2021 Affirmation, which was prepared with the assistance of the free legal advice scheme of the Faculty of Law of The University of Hong Kong. 

(12)  The Member heard the application on 16 February 2021.  By his decision dated 10 May 2021, he dismissed the application.

(13)  Upon the respondent’s renewed application, Cheung JA granted leave to appeal out of time on 22 October 2021.

(14)  The respondent is legally aided in this appeal.

The application to adduce further evidence on appeal

6.  Given the applicant’s neutral stance on the present application, we need only give a broad outline of the respondent’s grounds of appeal and the content of the evidence she seeks to adduce and rely at the appeal.

7.  In summary, the respondent’s grounds of appeal are that:

(1)  The Member erred in law in dismissing the Setting Aside Application in that the Default Judgment was an irregular judgment, and that the respondent has been in adverse possession of the Property and the applicant’s title in the Property has been extinguished.

(2)  Alternatively, the Default Judgment was irregular in that the applicant had wilfully misled the Tribunal as to the facts and circumstances relating to the respondent’s occupation of the Property.

(3)  Further and in the alternative, if the Default Judgment was a regular judgment, the respondent has a meritorious defence in adverse possession and a satisfactory explanation for the default.

(4)  In the further alternative, the applicant should not, and could not, have relied on section 117 of the Landlord and Tenant (Consolidation)  Ordinance, Cap. 7 to recover possession of the Property.

8.  As to the 5 Feb 2021 Affirmation, it essentially sets out the respondent’s personal background, including her age and education level, and the circumstances leading to the Default Judgment and her failure to file a supplemental affirmation to support the Setting Aside . Notably, as summarised by Mr But, who represents the respondent in the present application, it is said that the respondent had neither the knowledge nor ability to make and file a supplemental affirmation until she received pro bono legal assistance from the Faculty of Law of The University of Hong Kong in February 2021.  The 5 Feb 2021 also details the facts and basis underlying the respondent’s case of adverse possession, and her contention that the applicant had misled the Tribunal.

9.  As mentioned above, the 5 February 2021 Affirmation had been considered by the Member when he dealt with the respondent’s application for leave to appeal out of time.  But because it was not part of the evidence in the Setting Aside Application, the respondent took out the present application so that the affirmation could form part of the evidence in this appeal. 

10.  The respondent accepted that the three conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 for admitting new evidence apply.  They are that: (1)  the evidence could not have been obtained with reasonable diligence for use in the proceedings below; (2)  the further evidence would probably have an important influence on the result of the case, though it need not be decisive; and (3)  the evidence must be apparently credible though it need not be incontrovertible.

11.  We are readily satisfied that the respondent has demonstrated that the second and third conditions have been met.

12.  As to the first condition in Ladd v Marshall, Mr But submits, and we agree, that it is important to have regard to the context of the application: Bank of New York Mellon v Sun Jiangrong [2016] 1 HKC 13, at [25]-[27].  This court (Lam VP and Kwan JA[2])  has pointed out in Sky Joy Investment Limited v Zheng Dunmu & Anor [2018] 5 HKC 224, at [13], the degree of reasonable diligence which is expected of an applicant must be assessed against the overall circumstances of the case, taking into account all relevant factors, such as the time available for the applicant to gather the evidence, the nature of the evidence, the difficulty encountered in obtaining the evidence, the effort used by the applicant in gathering the evidence. 

13.  Further, while the importance of finality in litigation, which underlines the rule in Ladd v Marshall, should generally be strictly adhered to, the court may exceptionally exercise its discretion to admit fresh evidence where the wider interest of justice necessitates a departure from it: see R v Home Secretary, ex p. Momin Ali [1984] 1 WLR 663, 670 cited in The Hong Kong and Shanghai Banking Corporation Limited v Leung Chi Kit trading as Leung Pui Form Mould Works (formerly known as Leung Pui Brick Mould Works) (unreported), CACV 2015/2017, 4 May 2018.  It is, however, to be acknowledged that such cases will be rare. 

14.  In the present case, we have regard to the circumstances and difficulties encountered by the respondent before she received pro bono legal assistance as deposed to in her affirmation.  She is an elderly lady with little education and has very limited financial means.  While AYCH remained on record as her solicitors, the respondent in fact did not have legal assistance or advice after the 14 December 2021 hearing as she had exhausted her legal funds.  We accept that it would not be within the respondent’s knowledge and ability to make and file a supplemental affirmation detailing the matters relevant to her case as contained in the 5 Feb 2021 Affirmation.  We also take into account the fact that the 5 Feb 2021 Affirmation was considered by the Member when he dealt with the respondent’s leave to appeal application.  In light of the above and the applicant’s neutral stance, we will exceptionally give leave for the 5 Feb 2021 Affirmation to be adduced at the appeal.

Costs of the application

15.  The applicant contends that there should be no order as to the costs of this application since the respondent is seeking the court’s indulgence, relying on Taiping Securities (HK)  Co Ltd v Mystery Idea Ltd & Ors [2021] HKCFI 2362.  In that case, K Yeung J allowed the plaintiff’s application to admit new evidence but dismissed its appeal.  He made no order as to the costs of the application to admit new evidence as he was of the view that the plaintiff was after all seeking the indulgence of the court.  Given that we are at this stage only dealing with the application to admit further evidence, we do not think the case assists the applicant.

16.  The respondent’s position is that the costs of the present application should be in the cause of the appeal because whether the further evidence will ultimately impact upon the final orders to be made by the court can only be decided upon the resolution of the substantive appeal: see also EBS v NTCD [2023] HKCA 425. 

17.  In our view, having regard to the circumstances in this case, the more appropriate order is to reserve the costs of the application as the court hearing the substantive appeal will be in a better position to assess the overall circumstances of the case when exercising the court’s discretion as to costs.  

Disposition

18.  The order we make is as follows:

(1)  Leave to the respondent to adduce and rely on 周國芳的非宗教誓章 filed on 5 February 2021 in LDPD 1033/2020 at the hearing of this appeal.

(2)  The applicant may (if so advised)  file and serve evidence in answer within 28 days after the date of this decision.

(3)  The respondent may file and serve evidence in reply (if any)  within 14 days thereafter.

(4)  Within 7 days from the close of additional evidence as provided above, the respondent shall revise the appeal bundles by amending the index and inserting the additional evidence into the bundles.

(5)  The costs of the respondent’s summons of 9 June 2023 be reserved.

Other matter

19.  Before leaving this decision, we wish to make some observations on a solicitor’s duty to promptly come off the record when it becomes clear that it can no longer represent the client in proceedings that are ongoing. 

20.  In this case, when the Setting Aside Application was adjourned on 14 December 2020, the respondent was directed to file a supplemental affirmation within the next 14 days, which expired on 28 December 2020.  According to the respondent, her litigation fund was by then exhausted.  Her case is that she could no longer afford to be represented by AYCH is consistent with AYCH informing the Tribunal 6 January 2021 that they did not have further instruction from her.

21.  In the same letter AYCH also stated that they understood the respondent had filed a Notice to Act in Person.  On the materials before us, we do not know the factual basis of AYCH’s understanding. What is clear is that it was not until three weeks later on 29 January 2021 that a Notice to Act in Person was filed in the LT Action.  In her affirmation in support of the present application[3], the respondent explained that after visiting the Faculty of Law of The University of Hong Kong on 28 January 2021, she went to AYCH on the following day (i.e. 29 January 2021)  to retrieve her case papers.  It was on that occasion that she signed a Notice to Act in Person, and it was in those circumstances that the Notice to Act to Person came to be filed on 29 January 2021[4].

22.  A copy of the notice was exhibited as exhibit CKF-3 to the respondent’s affirmation.  It is typewritten and its content and format suggest that it was probably professionally prepared.  It is further of interest to note that the notice was dated 23 December 2020 whereas it was filed on 29 January 2021 as stated on the back sheet.  

23.  We are conscious that AYCH has not been afforded an opportunity to respond to the respondent’s affirmation, including why the document was dated 23 December 2020.  It is also not necessary in the present application to make any finding in this regard.  We wish, however, to remind practitioners that as soon as solicitors become aware that they are no longer in a position to represent a client (due to, for example, the client’s failure or inability to put them in funds)  in court proceedings, they should apply to the court for an order to cease to act at the earliest opportunity, or see to it that a Notice to Act in Person is promptly filed.  Solicitors should not allow themselves to remain on record as the legal representative when it is clear that they no longer have instruction to act in the proceedings.  This is particularly important when proceedings are ongoing and their client is required to take step(s)  under an extant order.