CCMJ v. SSM formerly known as SKL

FCMP 67 / 2010

[2025] HKFC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

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DECISION
(Rule 121 of MCR Cap.179A)

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Foreword

1.  This is the trial of the Respondent’s Summons dated 2 July 2024 taken out under Rule 121 of the Matrimonial Causes Rules, Cap.179A (“MCR”) for use and disclosure of documents in the ongoing proceedings at the Court of First Instance under HCMP No.2099 of 2023 and/or the fresh proceedings to be commenced by the Respondent in respect of 4 Legal Charges executed by the Applicant in November 2022 (“Rule 121 Summons”).

2.  Suffice it is for me to say the ongoing proceedings under HCMP No.2099 of 2023 was issued by the Bank of China on 10 November 2022 under Order 17 rule 1 of the Rules of the High Court, Cap.4A in respect of the net proceeds of sale of F’s solely owned property known as One Silversea (“Silversea Property”) in March 2022. The net proceeds of sale come to the sum of HK$12,122,071.55.

3.  In this Decision, I would refer to the case of HCMP No. 2099 of 2023 as “Interpleader Proceedings”.

Some general factual background

4.  This piece of protracted litigation between the Applicant father (“F”) and the Respondent mother (“M”) in respect of a child born in 2008 out of their cohabitation. As the docket judge overseeing this case for the past 14 years, there were multiple applications in the Family Court, Court of First Instance (wardship) and in the Court of Appeal ending up with no less than 25 judgment(s) were handed down by different level of courts. That said, there was yet another decision of this Court to be handed down in the next couple of months in respect of F’s application for variation of order.

5.  In 2015, this Court handed down a Judgment after a 6-day trial whereby, amongst others, F’s Silversea Property was ordered to be settled on trust for the use of the child of the parties and M free of mortgage payments until the child reaches the age of 18 or ceases full time education, whichever is the later.

6.  At all material times the Silversea Property was mortgaged to the Bank of China and F had to pay the monthly mortgage instalments during the period of settlement directed by this Court.

7.  In January 2021, F stopped paying the mortgage instalments of the Silversea Property leading to the Bank of China issuing proceedings against F in the District Court under DCMP No.2538 of 2021.

8.  On 12 January 2022, an order for possession of the Silversea Property was granted and mortgagee sale was being arranged.

9.  On 25 February 2022, M obtained an interim injunction (“Interim Injunction”) restraining F from dealing with the net proceeds of sale of the Silversea Property and ordering payment of the same upon receipt into this Court.

10.  In November 2022 (i.e. after the Interim Injunction was granted), F executed 4 Legal Charges (collectively “Legal Charges”) separately in respect of purported loans allegedly given to him by his mother and 3 other friends between 2018 and 2022. The 4 Legal Charges were registered at the Land Registry on the title of the Silversea Property which came to the notice of Bank of China at the time of sale.

11.  On 10 March 2023, the Bank of China sold the Silversea Property and the net proceeds of sale came up to the region of HK$12,122,071.55 (“Proceeds of sale”).

12.  On 10 November 2023, the Bank of China through their lawyers Messrs. Chu & Lau, Solicitors, took out the Interpleader Proceedings since they could not determine how the net proceeds of sale to be dealt with.

13.  On the other hand, the Interim Injunction was tried by Deputy Judge Jeffrey Li who handed down his Decision in August 2024 whereby a sum of HK$8,058,523 out of the net proceeds of sale was to be injuncted until further order of the Court. It was further ordered that F do pay or procure to pay the said sum of HK$8,058,523 into this Court forthwith.

14.  On 30 October 2024, F issued a Summons seeking leave to appeal the Decision of Deputy Judge Jeffrey Li and, at the time of this Decision, the outcome is pending.

The Interpleader Proceedings (HCMP No.2099 of 2023)

15.  There are altogether 8 Claimants as follows :-

-  Director of Legal Aid	(1st Claimant)
-  Respondent	(2nd Claimant)
-  The Official Solicitor	(3rd Claimant)
-  (Friend of F)	(4th Claimant)
-  (Mother of F)	(5th Claimant)
-  (Friend of F)	(6th Claimant)
-  (Friend of F)	(7th Claimant)
-  Applicant	(8th Claimant)

16.  At the directions hearing on 26 April 2024, Hon S.T. Poon J granted leave for M (2^nd Claimant), F (8^th Claimant) and the 4^th to 7^th Claimants to file affirmation evidence in respect of the Legal Charges within 28 days given that M through her Counsel informed the Court that M would challenge the validity of the Legal Charges. M (2^nd Claimant) has consequential leave to file her affirmation in reply within 28 days thereafter[1].

17.  It turned out that the 4^th to 7^th Claimants and F (8^th Claimant) chose not to file any l affirmation evidence in respect of the Legal Charges. Hence, F took the stance of opposing M to file any affirmation “in reply” in the Interpleader Proceedings.

18.  On 15 July 2024, M took out a Summons[2] in the Interpleader Proceedings to seek clarification/directions for leave to file her affirmation evidence which had earlier been directed to be filed “in reply” notwithstanding the absence of supplemental affirmations from the 4^th to 8^th Claimants on the 4 Legal Charges. M’s Summons was scheduled for hearing on 20 September 2024. In the meantime, the Originating Summons had been scheduled for substantive hearing on 6 November 2024 at 10:00 a.m.

19.  On 16 September 2024, F filed his 2^nd Affidavit (without leave) to oppose the Originating Summons.

20.  On 20 September 2024, Hon S.T. Poon J noted M’s Rule 121 Summons dated 2 July 2024 taken out in these proceedings, and the decision of which was pending at that time, granted the following orders :-

-  Retrospective leave for F’s 2^nd Affidavit to stand as affidavit in opposition to the Originating Summons taken out by Bank of China dated 10 November 2023;

-  Leave be granted to M to file her Reply Affidavit within 35 days from the date of this Decision on her Rule 121 Summons;

-  The substantive hearing of the Originating Summons on 6 November 2024 be vacated and adjourned to a date to be fixed (1 day reserved) in consultation with Counsel’s diaries within 14 days after the filing of M’s Reply Affidavit;

-  There be a directions hearing before the Judge presiding the substantive hearing and not less than 28 days before the substantive hearing.

The “Rule 121 Summons”

21.  As per paragraph 1 of the Summons, there are altogether 12 items of documents under items (a) to (l) consists of F’s Form Es, Affirmation of F’s mother, F’s 45^th, 46^th, 47^th, 50^th, 51^st and 52^nd Affidavits, F’s hearing note filed on 20 December 2023 . The use and disclosure of those documents was required :-

“…..for the purposes of advancing and/or defending the proceedings in HCMP 2099/2023 and/or the fresh High Court proceedings to be commenced by the Respondent (as the Plaintiff in those fresh proceedings) in respect of which the Legal Charges registered in the Land Registry by Memorial Nos.2211xxxxxxxx29, 2211xxxxxxxx30, 2811xxxxxxxx43 and 2211xxxxxxxx58 against [One Silversea Property] (as the case may be)”

22.  At paragraph 31 of her 39^th Affidavit[3] which was filed in support of her Rule 121 Summons, M sets out the relevance and the need to use each of the 12 items of documents. In a gist, they are relevant to F’s previous disclosure of his financial situation, liabilities and the alleged loans that he received.

23.  Since M’s 39^th Affidavit was filed on 4 July 2024, which was before the Decision of Deputy Judge Jeffrey Li dated 21 August 2024, M in her 40^th Affidavit in Reply extended the scope of her application and said at paragraph 17 :-

“17. The Injunction Judgment directly relates to the said proceeds of the One Silversea which is the subject matter of the Interpleader Proceedings. Therefore, in addition to the list of documents as set out in my Summons, I hereby seek leave to disclose and use the said Judgment in the Interpleader Proceedings and/or the fresh High Court proceedings to be commenced by me.”

F’s Affirmation in Opposition

24.  F’s reasons for opposition are contained in his 43-page 56^th Affidavit dated 22 August 2024[4]. Within the 105 paragraphs of the Affidavit, there contained matters not directly relevant to M’s application but F’s views and comments on the way which M had pursued her case with criticisms against M of tampering and fabricating evidence, removing necessary and material evidence from his affidavits when pursuing the trial of the Injunction thus perverting the course of justice, undermining his legal rights and eroding public trust in the legal system[5].

25.  I do not intend to go through F’s 56^th Affidavit in any great detail save to refer only to those contentions, if any, which are of relevance and importance when considering M’s application herein.

26.  For the sake of completeness, I would also go through the applicable law and legal principles on Interpleader procedure under Order 17 rule 1 of the RHC, Cap.4A, followed by the legal principles and procedure under Rule 121 of MCR, Cap.179A.

Order 17 rule 1 of the RHC, Cap.4A

27.  “Entitlement to relief by way of interpleader (O.17, r.1)

(1) Where –

(a) a person is under a liability in respect of a debt or in respect of any money, goods or chattels and he is, or expects to be, sue for or in respect of that debt or money or those goods of chattels by two or more persons making adverse claims thereto, or

(b) ……….

the person under liability is mentioned in sub-paragraph (a), or (subject to rule 2) the bailiff, may apply to the Court for relief by way of interpleader.

Powers of Court hearing summons (O.17, r.5)

(1) Where on the hearing of a summons under this Order all the persons by whom adverse claims to the subject-matter in dispute (hereafter in this Order referred to as the claimants) appear, the Court may order –

(a) That any claimant be made a defendant in any action pending with respect to the subject-matter in dispute in substitution for or in addition to the applicant for relief under this Order, or

(b) that an issue between the claimants be stated and tried and may direct which of the claimants is to be plaintiff and which defendant (my emphasis).`

(2) ……..

Trial of interpleader issue (O.17, r.11)

(1) Order 35 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the trial of an action.

(2) The Court by whom an interpleader issue is tried may give such judgment or make such order as finally to dispose of all questions arising in the interpleader proceedings.”

28.  In the case of Nanyang Commercial Bank Limited v The Personal representative of Vannee Nativivat, deceased (unreported, HCMP No.2027 of 2011), Hon To J said :-

“Some legal principles applicable to interpleader proceeding

9. Interpleader proceeding is a proceeding by which a person, from whom two or more persons claim the same property or debt, but who does not himself claim the property or dispute the debt, wishes to protect himself from legal proceedings by calling upon the two claimants to interplead, that is to say, claim against one another, so that the title to the property or debt may be decided by the court: Order 17 rule 1 and Hong Kong Civil Procedure 2012 paragraph 17/0/2. The prerequisite to the right to interplead is that the intended interpleader: (a) has no interest in the property the subject matter of the dispute; (b) did not collude with any of those claiming the subject property

10. In DLA Piper v China Property [2010] 1 HKLRD 903, the Court

of Appeal endorsed the following principles applicable to interpleader proceeding as correct:

(1) where two or more persons claim the same thing or fund, the holder of the thing or fund does not claim any interest in the property, and not knowing to which of the claimants he ought to deliver the property, and he is sued or fears that he may be sued by some of them, he may apply for interpleader relief against the claimants;

(2) the relief is discretionary and it will not be granted unless there appears to be some real foundation that the applicant may be sued;

(3) the applicant does not in any manner collude with any claimant, or has not voluntarily put himself into the situation from which he calls on the court to extricate him;

(4) he is ready to bring into court, or to pay to dispose of the subject matter of the action in such manner as the court may direct;

(5) the test for a real foundation of being sued is whether a prima facie case exists (see Chan King Sheen v KC Tsang & Co [2002] 3 HKC 209 (CA) at 2211); and

(6) the test is whether each of the rival claimants has a prima facie case against the interpleading party, but not whether the adverse claimant has a claim against each other (my emphasis) (see de La Rue v Henru, Peron & Stockwell Ltd [1936] KB 164 per Greene LJ at 170-173, Tsun Fat Finance Co Ltd v Commissioner for Police [2002] 3 HKC 232 at 246).

The first four of these “principles” are prerequisites. The remaining two are the test and the standard of the test to be applied in ascertaining whether the interpleading party has a real foundation that he will be sued by the claimant

11. On hearing the application, the court has wide discretion, including dismissing the application on grounds that the prerequisites in rule 1 or the formal requirements in rule 3 are not satisfied; making a summary determination of the claim; and giving direction as to the further conduct of the proceedings: rule 5 and Hong Kong Civil Procedure 2012 paragraphs 17/5/2 to 17/5/9. Summary determination is the course most commonly taken in straightforward cases, particularly where expedition is desirable. But if the subject matter is of considerable value and difficult questions of law may arise, summary determination is not appropriate, even if the parties so consent: Fredericks and Pelhams Timber Buildings

v Wilkins, Read (Claimant) [1971] 1 WLR 1197; [1971] 3 All ER 545 (CA).

12. A summary determination, being summary in nature, is only appropriate for clear cases to which summary judgment under Order 14 is applicable. The legal principles applicable to summary judgment under that order are also applicable to a summary determination under Order 17. Summary determination is therefore appropriate for cases which there is no material factual dispute and if there is a legal issue, then no more than a crisp legal question as well decided summarily as otherwise. The court must not embark on a mini trial on affidavits (my emphasis).

Rule 121 of the MCR, Cap.179A

29. Rule 121 of the MCR provides :-

“121. Inspection etc. of documents retained in court

(1) A party to any matrimonial proceedings or his solicitors or the Secretary for Justice may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the registry in those proceedings.

(2) Except as provided by rules 47A(3) and 95(3) and paragraph (1) of this rule, no document filed or lodged in the registry, other than a decree or order made in open court, shall be open to inspection by any party without leave of the court, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to, any person without such leave.”

30.  The applicable legal principles under Rule 121 of the MCR, Cap.179A have been summarized by this Court in the earlier case of WSSA v SYH [2023] HKFC 94[6]. In a gist, the Family Court has the general power of control over access to documents within its custody in common law. The exercise of the inherent jurisdiction is subject to a balancing test in terms of weighing the relevant conflicting interests and rights[7] (see Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849, at §§16, 27-28 per Hon Lam VP (As he then was).

31.  There was no issue over Bank of China as the interpleading party in HCMP No.2099 of 2023, the only question to be considered was how the competing adverse claims of each of the Claimant(s) to be resolved.

32.  So much has been said on the applicable law and legal principles, including those on interpleader proceedings, I will move on to M’s case for her Rule 121 application.

Discussion

33.  Procedurally speaking, where a dispute arises which does not involve issues of fact but rather on matters of law or ascertainment of rights and status, the legal proceedings would be commenced by way of originating summons[8], petitions or in rare cases, by motion[9]. No pleadings are required for such originating process (unless otherwise directed). Parties’ evidence are uncontroversial and would generally be adduced in the form of affidavits/affirmations (including exhibits) without the deponent/affirmant testified on his or her credentials. The reliefs sought would normally take the form of declarations, rulings or determination on the subject matter before the court. Having said, interpleader proceedings are one of those categories where the parties’ (claimants’) making adverse claims whose priorities would be determined, and in most cases, determined summarily and thus relieving the interpleading party from risks of being sued by the claimants (see : DLA Piper v China Property, supra).

34.  Unless specific directions are granted for an interpleader issue to be tried with the “plaintiff” and “defendant” for such issue identified under Order 17 rule 5(1)(b) by the court hearing the interpleader proceedings, whereupon provisions on process of trial under Order 35 of the RHC, Cap.4A would apply to the trial of the identified interpleader issue as if it applies to the trial of an action[10].

35.  On the evidence before me with specific reference to the last Order dated 20 September 2024 in HCMP No.2099 of 2023, no directions were granted for an interpleader issue vis-à-vis 2^nd Claimant (M) and 8^th Claimant (F) to be tried. Moreover, there appeared to be no application by M for any interpleader issue to be tried in the forthcoming substantive hearing of the Originating Summons dated 8 November 2023. His Lordship set down the Originating Summons dated 8 November 2023 for substantive hearing and with a Directions hearing to be held no less than 28 days before the substantive hearing. At present, it is yet unknown whether M’s challenge of the 4 Legal Charges would be taken and dealt with as an interpleader issue or, as M had submitted throughout in the present application and spelt out in the terms of her Rule 121 Summons, to commence a fresh High Court proceedings with M as the plaintiff (and presumably with F as the defendant).

36.  Given M’s position was to contest the legality and/or genuineness of the 4 Legal Charges created by F, which are serious factual disputes and could only be resolved through a substantive trial proper brought under the a civil action with pleadings filed and exchange, the chargor’s (that is F’s) and the chargees’ (that is, other claimants’) credentials would then be tested under cross examination. Alternatively, directions might or could be granted for M’s challenge and contention to be tried as an interpleader issue preceding to or at the same time in the substantive hearing of the Originating Summons dated 8 November 2023. By then, there would also be directions on the filing of pleadings.

37.  In my view, unless and until pleadings are filed and exchanged, I am unable to carry out any “balancing test” (see Secretary for Justice v FTCW & Ors, supra) in terms of weighing the relevant conflicting interests and rights of the parties. It is legally and procedurally wrong for me to carry out the requisite “balancing test” in abstract in anticipation of a piece of “would-be” litigation (my emphasis).

38.  Regarding M’s specific purpose of the documents sought are for “advancing and/or defending the proceedings in HCMP No.2099/2023”[11], this is, with respect, misconceived. I failed to see how M would be able to articulate the forthcoming substantive trial of the Originating Summons dated 8 November 2023 with her case against F on the 4 Legal Charges executed by F in the absence of any pleadings, identified interpleader issue or other civil action yet to be commenced by her against F. The court must not embark on a mini trial on affidavits (see Nanyang

Commercial Bank Limited v The Personal representative of Vannee Nativivat, deceased, supra at paragraph 12) filed in the Interpleader Proceedings.

39.  Given the 4 Legal Charges are instrument(s) of deed executed and witnessed, they are as a matter of law presumed valid unless and until the contrary was proved through the legal process, be it under an interpleader issue to be tried or by a fresh civil action to be commenced. In whatever legal process, the burden of proving the contrary always rests with M.

40.  Turning to F’s apprehension of encroachment on the privacy of the child to unrelated parties[12] had M been allowed to use the documents in these proceedings in the Interpleader Proceedings where there are other claimants, this calls upon the exercise of a proper “balancing test” which could not be undertaken by me at this stage for those reasons I set out in the preceding paragraphs. Hence, I tended to accept F’s contention when the “balancing test” had not been conducted.

41.  F’s other contention and concern of violation of the privacy of the child, his mother and himself to other unrelated parties when the information contained in the documents sought by M in this application was entirely irrelevant to the interpleader relief (my emphasis)[13], I tended to agree.

42.  The relief under the Interpleader Proceedings was sought by the interpleading party Bank of China was determination of the priorities and respective entitlement of the 8 Claimants making adverse claims over the subject matter, that is, the net proceeds of sale of HK$12,122,071.55 and not the legality and genuineness of the 4 Legal Charges executed by F (8^th Claimant) which M (2^nd Claimant) now contended. The relief sought by the interpleading party and the reliefs intended (my emphasis) by M are apparently not the same.

Decision

43.  For all the above reasons, I decided that M’s application as per her Rule 121 Summons fails. Likewise, M’s request for the use of the Decision of Deputy Judge Jeffrey Li on the Injunction also fails.

Costs

44.  Given my decision against M on her application, I believe it is only fair and reasonable for her to bear the costs of F. Since F was unrepresented and this is a standalone application taken out by M, I decided to summarily assess F’s costs in the sum of HK$3,000.

45.  M’s own costs to be taxed in accordance with Legal Aid Regulations.

Orders

46.  I now grant the following Orders :-

(a)  M’s Summons dated 2 July 2024 be dismissed;

(b)  M to pay costs of the application, including all costs reserved (if any), to F and summarily assessed at HK$3,000;

(c)  M’s own costs be taxed in accordance with Legal Aid Regulations.

47.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.