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[English Translation –英譯本]
HCMP 195/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 195 OF 2016
(ON AN INTENDED APPEAL FROM DCMP 3168/2013)
_________________
| BETWEEN |
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LAM DOROTHY LAI WAH |
Plaintiff |
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and |
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THE OCCUPIERS
(WHOSE NAME ARE UNKNOWN) |
1st Defendant |
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CHAN SIK CHUNG LHAMSHIRMAN（陳錫宗） |
2nd Defendant
(Intended Appellant) |
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CHAN MEI LAN（陳美蘭） |
3rd Defendant |
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THE PERSONAL REPRESENTATIVE OF THE ESTATE OF
CHAN TSING YUN, DECEASED |
4th Defendant |
_________________
| Before: Hon Chu and Hon Poon JJA |
| Date of Judgment: 15 April 2016 |
JUDGMENT
Hon Chu JA (giving the Judgment of the Court):
1. The 2nd defendant Mr Chan Sik Chung (“the 2nd defendant”) applies for leave to appeal to the Court of Appeal against the decision of Deputy District Court Judge Walker Sham (“the trial judge”) dated 29 September 2015.
2. The 2nd defendant had applied to the District Court out of time for leave to appeal but this application was refused by the trial judge on 11 January 2016.
3. The plaintiff opposed the 2nd defendant’s application and filed her objection on 4 February 2016.
Factual background
4. The 2nd defendant, Chan Sik Lung (transliteration) and Chan Mei Lan are the children of Chan Tsing Yun (“the father”) and Wong Hong Chi (transliteration).
5. The plaintiff and Chan Sik Lung were husband and wife but they divorced in 1994.
6. Chan Tsing Yun passed away on 7 November 2004. On 6 June 2014, the 2nd defendant was granted letter of administration by the High Court of Hong Kong and became the administrator of the father’s estate.
7. The plaintiff is the registered owner of Room D, 1/F, No. 5 Tak Ku Ling Road, Kowloon City (“the Property”). Pursuant to Order 113 of the Rules of the District Court, Cap. 336H, the plaintiff issued an originating summons in the District Court to apply for recovery of possession of the Property from the occupiers of the Property who were not named.
8. The plaintiff claims that between 1981 and 1982, by licence, she permitted the father and mother to live in the Property without charging them any rent and after the death of the father and mother in 2004 and 2013 respectively, the licence has come to an end.
9. The 2nd defendant was granted permission by the court to join in the proceedings on 17 March 2014 as the 2nd defendant in the case.
10. The 2nd defendant claims in his “Amended Defence and Counterclaim” dated 28 October 2014 that the plaintiff did not own any interest in the Property and the father was the beneficial owner of the Property while Chan Mei Lan currently lives in the Property.
11. According to the 2nd defendant, the father purchased the Property in 1966. However, the middle man whom he had entrusted embezzled the money and failed to complete the formalities for the purchase and title registration of the Property. In around 1976, the plaintiff paid off the balance of the purchase price on behalf of the father and became the registered owner of the Property. In 1980, the father repaid the plaintiff by instalments the sum which she had paid on his behalf. However, the plaintiff did not give the title of the Property back to him. After the divorce of the plaintiff and Chan Sik Lung, the father applied to the Legal Aid Department for legal aid so as to institute proceedings against the plaintiff to recover the title of the Property. Yet the application ended up with nothing definite due to unknown reasons.
12. The 2nd defendant also alleges that since 1966, the father and their family had all along resided in the Property. In 1974, the plaintiff married Chan Sik Lung and thereafter, other siblings moved out successively. Even since the death of the father and mother, Chan Mei Lan has lived in the Property alone. The property tax, maintenance expenses and management fees etc of the Property had been paid by the father and the 2nd defendant since 1978. The plaintiff has only taken over the payment of the management fees since October 2013.
13. On 5 December 2014, pursuant to Orders 15 and 18 of the Rules of the District Court, the plaintiff applied:
(1) to amend the Statement of Claim;
(2) to strike out parts of the 2nd Defendant’s “Amended Defence and Counterclaim”;
(3) to add Chan Mei Lan and the administrator of the father’s estate as defendants in the case.
14. Master Li Chi Ho of the District Court granted the plaintiff’s application after a hearing. The 2nd defendant applied to appeal out of time but the application was refused by the trial judge. He now applies for leave to appeal to the Court of Appeal against this decision.
15. Section 63A of the District Court Ordinance, Cap 336H (sic), provides that leave to appeal shall not be granted by the court unless the appeal has a reasonable prospect of success; or there is some other reason in the interests of justice why the appeal should be heard.
Discussion
16. We will consider the 2nd defendant’s application for leave to appeal against the following four decisions one by one: (1) granting leave to the plaintiff to amend the Statement of Claim; (2) striking out parts of the “Amended Defence and Counterclaim”; (3) adding the administrator of the father’s estate as a defendant of the case; and (4) adding Chan Mei Lan as a defendant of the case.
17. First of all, the decision to grant the plaintiff leave to amend the Statement of Claim is a discretionary decision. Unless the appellant can prove that the decision was made under a mistake of law or the judge took into account irrelevant matters, the Court of Appeal will not interfere with the decision. Hong Kong Civil Procedure 2016, Vol. 1, Para 59/0/54.
18. The two amendments the plaintiff proposed in respect of the Statement of Claim were about Chan Mei Lan’s occupation of the Property and the fact that the 2nd defendant was the administrator of the father’s estate respectively. These two facts are directly relevant to the plaintiff’s claim, which are also undisputed. The Master was right in his decision in exercising his discretion to allow these statements of facts to be included into the Statement of Claim pursuant to Order 18 rule 19. It is also right for the trial judge to refuse the 2nd defendant’s application to appeal out of time.
19. Moreover, the decision to strike out parts of the 2nd defendant’s “Amended Defence and Counterclaim” is also a discretionary decision. The legal principle mentioned in paragraph 17 above is also applicable. The trial judge set out the relevant legal principles and his reasons for making the said decision at paragraphs 28 to 35 of his judgment dated 29 September 2015. We consider that the trial judge’s decision to refuse the 2nd defendant’s application to appeal out of time against the order to strike out parts of the “Amended Defence and Counterclaim” was made after he had correctly considered the legal principles. Pleadings in civil actions aim to show clearly the matters in dispute by the parties and the issues involved in the action. Pleadings shall not contain matters irrelevant to the issues in action. Pleadings shall contain only a statement in summary form of the material facts on which the party relies for his cause of action or defence. Litigants also cannot criticize against any matter or person in pleadings.
20. Regarding the parts of the “Amended Defence and Counterclaim” which have been struck out, some of them are comments on the character, integrity and words and actions of the plaintiff; others express dissatisfaction about the plaintiff’s lawyer, which are totally irrelevant to the issues in the action. As for the counterclaim of “my reputation has been tarnished due to Lam Lai Wah’s embezzlement of my properties, thus an additional compensation of Hong Kong dollars one million is demanded” put forward by the 2nd defendant, it is not a legally recognized cause of action. The Master correctly exercised his discretion in striking them out. It is also right for the trial judge to refuse the 2nd defendant’s application to appeal against the said decision out of time.
21. As for the decision to add the administrator of the father’s estate and Chan Mei Lan into the case as defendants, the defence put forward by the 2nd defendant is that the father was the beneficial owner of the Property and Chan Mei Lan is occupying the Property. Under such circumstances, the outcome of the proceedings in the District Court may affect their interests, thus they should be added as defendants into the case so that when the case is heard, the court can consider and deal with their circumstances and interests (if any) at the same time and make decisions which will be binding on them. Since the father has passed away, his interest is vested in his administrator. Therefore, adding the administrator of the father’s estate as a defendant complies with the procedure of litigation. We consider that adding the administrator of the father’s estate as a defendant of the case is the right decision.
22. The 2nd defendant’s ground of appeal complains that it is not fair for him to be the 2nd and 4th defendant of the case at the same time. However, previously he made an application in his personal capacity and was granted permission by the court to become a defendant. The application that the plaintiff made afterwards and was granted by the court was concerned with him representing the estate of his father as another defendant in the case in his capacity as the administrator. This is totally different from his personal interest (if any). Any interest granted or liability found by the court in the District Court proceedings in respect of the father’s estate will be vested in the father’s estate and will be enjoyed or borne by the beneficiary of the estate. As for the costs of the administrator, unless the court orders otherwise, they can generally be paid out of the estate. We are of the view that the 2nd defendant’s intended appeal against the order allowing the administrator of the father’s estate to be added as a defendant has no prospect of success.
23. As for the order of adding Chan Mei Lan as a defendant, though we agree that there is a proper foundation for her to be added in the action, in our view, the question of whether the Master’s order complies with Order 80 rule 2 of the Rules of the District Court is a reasonably arguable matter for an appeal.
24. The 2nd defendant submitted to the trial judge a letter written by a psychiatrist of Kowloon Hospital dated 10 June 2014 which reads:
“The above named patient [Chan, Mei Lan 陳美蘭] is likely suffering from mild mental retardation. She is mentally unfit to give instruction for litigation and mentally unfit to attend court hearing…”
25. The 2nd defendant also produced a letter dated 24 February 2014 from Kowloon City Integrated Home Care Services Team of S.K.H Holy Carpenter Church stating that the Services Team has provided home care service to Chan Mei Lan since 7 April 2005 and she “needs to wear a hearing aid and cannot read and has difficulty in expressing herself verbally.”
26. From these documents, it can be seen whether Madam Chan is incapable of participating in the litigation by reason of her being a “person under disability” as defined in Order 80 of the Rules of the District Court is a matter that has to be considered before the court can order her to be added as a defendant.
27. The trial judge stated in paragraph 26 of his judgment dated 29 September 2015 that “though Chan Mei Lan is a person with disabilities, this does not affect the question of whether she should be added as a defendant of this case.”
28. However, Order 80 rule 2 stipulates that a person under disability may not acknowledge service, defend, make a counterclaim in any proceedings, except by his guardian ad litem. Moreover, except where the Official Solicitor is acting as a guardian ad litem, a guardian ad litem of a person under disability must act by a solicitor. Hence, if Chan Mei Lan is indeed a person under disability, the court must first deal with matters such as appointing a guardian ad litem or consider whether this case needs to be referred to the Official Solicitor for follow up etc before ordering Chan Mei Lan to be added as a litigant in the case.
29. For the above reasons, we grant leave to the 2nd defendant to appeal to the Court of Appeal against the decision of the trial judge refusing his application to appeal out of time against the order allowing Chan Mei Lan to be added as a defendant; the ground of appeal being that the order does not comply with the stipulation in Order 80 of the Rules of the District Court.
30. The 2nd defendant also mentions other grounds that challenge the trial judge’s decision in his grounds of application. Yet most of them are not directly relevant to the decision he intends to appeal, including his criticism of the bill of costs of the plaintiff and his contention that the trial judge should not have treated his application for leave to appeal as out of time. They do not constitute grounds of appeal that have a reasonable prospect of success.
Our orders
31. On the above analysis, we make the following orders:
(1) leave be granted to the 2nd defendant to appeal to the Court of Appeal against the decision of the trial judge refusing his application to appeal out of time against the order allowing Chan Mei Lan to be added as a defendant; the ground of appeal being that the order does not comply with the stipulation of Order 80 of the Rules of the District Court;
(2) no leave be granted to the 2nd defendant to appeal to the Court of Appeal against the decision of the trial judge refusing his application to appeal out of time against the other orders;
(3) in view of the fact that the 2nd defendant’s application for leave to appeal against the other orders is totally without merit, pursuant to the plaintiff in the District Court, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, we order that no party may under rule [2A](7) of the Order request the decision on the application for leave to appeal against the other orders to be reconsidered at an oral hearing inter partes;
(4) the costs of this application be reserved and be dealt with in the subsequent appeal brought by the 2nd defendant pursuant to paragraph (1) above.
| (Carlye Chu) |
(Jeremy Poon) |
| Justice of Appeal |
Justice of Appeal |
Tim Yu, instructed by Annie Leung & Co., for the plaintiff.
The 2nd defendant (the intended appellant), in person, present.
Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.
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