YU WING CHEONG alias YU JOSEPH WING CHEONG, Executor substituted named in the Will of YAU SIN WAH alias YAU KAM LAN (“Deceased”) AND ANOTHER v. YU WING YIN

HCMP 2089/2017

[2023] HKCFI 2098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2089 OF 2017

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DECISION

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A.  INTRODUCTION

1.  This is the Defendant’s appeal (“Defendant’s Appeal”), by Notice of Appeal dated 18 July 2023, from the Order of Master Kent Yee dated 5 July 2023 (“Master Kent Yee’s Order”) dismissing the Defendant’s Summons dated 8 May 2023 (“D’s Summons”) to set aside the Writ of Possession issued on 4 April 2023 (“Writ of Possession”) with costs.

2.  An appeal from the master to the judge in chambers is dealt with by way of a rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. Fresh points may be raised before the judge which were not raised or taken before the master: see Hong Kong Civil Procedure 2023, §§58/1/2, 58/1/5.

B.  BACKGROUND

3.  The factual background leading to these proceedings has been summarized at paragraphs 2 to 12 of the decision of Deputy High Court Judge Le Pichon dated 22 May 2019 (“CFI Decision”), which need not be repeated here.

4.  In gist, the Plaintiffs and the Defendant are siblings and are, together with their sister, the beneficiaries under their mother’s will.  The Plaintiffs are the executors of the will, and the 2^nd Plaintiff obtained the grant of probate.  At the time of these proceedings, the only un-administered estate under the will is the property at 1^st Floor, No 24 Green Lane, The Sanitarian Apartments, Nos 20 ‑ 30 Green Lane, Hong Kong (“Property”), where the Defendant has been residing for some 60 years.

5.  The Plaintiffs as executors intended to sell the Property and to distribute the proceeds to the beneficiaries.  However, despite the Plaintiffs’ requests, the Defendant refused to vacate the Property.  Hence, the Plaintiffs took out the present proceedings as executors against the Defendant, seeking an order for vacant possession, and for sale of the Property at an auction. 

6.  On 22 May 2019, by the CFI Decision, Deputy High Court Judge Le Pichon granted the Plaintiffs’ application for summary judgment against the Defendant.  The Defendant was ordered to deliver vacant possession of the Property to the Plaintiffs, and the Property is to be sold with vacant possession at market price within three months thereafter; in particular, the Defendant was ordered to “forthwith leave, vacate and deliver up vacant possession of the said Property to the Plaintiffs within 12 weeks from the date of this Order” (“22 May 2019 Order”).

7.  The Defendant appealed to the Court of Appeal against the CFI Decision and the 22 May 2019 Order by way of a Notice of Appeal dated 19 June 2019 (“CA Appeal”). 

8.  Stay of execution of the 22 May 2019 Order pending the determination of the CA Appeal was ordered by consent on 9 September 2019 (“Stay of Execution Order”). Paragraph 1 of the Stay of Execution Order provides that “Execution of the 22 May 2019 Order be stayed pending the hearing or disposal or determination of the Defendant’s/Appellant’s intended Appeal or further Order of the Court”.

9.  On 19 January 2022, the Court of Appeal handed down its judgment (“CA Judgment”) dismissing the CA Appeal with costs.

10.  By a Notice of Motion filed on 16 February 2022 (“Notice of Motion”), the Defendant sought leave from the Court of Appeal to appeal to the Court of Final Appeal against the CA Judgment.

11.  On 28 February 2022, the Plaintiffs issued the bilingual Notice of Proceedings (“Notice of Proceedings”) on the Defendant demanding him and all persons in actual possession of the Property to vacate the same on or before 8 March 2022.

12.  By judgment handed down on 16 November 2022, the Court of Appeal refused to grant leave appeal and dismissed the Notice of Motion with indemnity costs against the Defendant, having found that the application for leave was “plainly without any merit” and an “abuse of process” by the Defendant.

13.  On 14 December 2022, the Defendant issued an application seeking leave to appeal from the Court of Final Appeal in FAMV 654/2022 (“CFA Leave Application”). Pursuant to a summons issued by the Registrar on 23 December 2022 under Rule 7 of the Court of Final Appeal Rules (Cap 484A), the Defendant was notified of the Registrar’s opinion that the Defendant’s application for leave discloses no reasonable grounds for leave to appeal, and the Defendant was required to show cause by written submissions on or before 20 January 2023 as to why his application should not be dismissed by the Appeal Committee.  I was informed by the Defendant at the hearing that he had filed his submissions and the decision of the Appeal Committee on the CFA Leave Application is currently pending.

14.  On 18 January 2023, the Plaintiffs made an ex parte application for leave to issue the Writ of Possession (“Ex Parte Application”), supported by, inter alia, the Affirmation of Tse Tin Leung filed on the same date (“Tse’s Affirmation”).  

15.  Leave to issue the Writ of Possession was granted by Master Matthew Leung (“Master”) on 3 February 2023.  

16.  On 4 April 2023, the Plaintiffs issued the Writ of Possession.

17.  On 8 May 2023, the Defendant issued D’s Summons applying to set aside the Writ of Possession, which application was dismissed by Master Kent Yee on 5 July 2023.

18.  On 7 July 2023, the Defendant applied to stay the Writ of Possession pending appeal, which application was dismissed by Master D. Ho on 11 July 2023, as the Defendant had not filed any notice of appeal against Master Kent Yee’s Order at the time.

19.  On 13 July 2023, a bailiff has delivered possession of the Property as described in the Writ of Possession.

20.  On 18 July 2023, the Defendant filed the Notice of Appeal dated 18 July 2023 appealing against Master Kent Yee’s Order, which appeal is now before this Court.

21.  The Defendant seeks to set aside the Writ of Possession on four grounds, which can be summarized as follows:

(1)  Ground 1: The Stay of Execution Order continues to be valid. 

(2)  Ground 2: The failure by the Plaintiffs to bring to the notice of the Master in the Ex Parte Application the Stay of Execution Order is “an omission of key information constituting gross misrepresentation”. 

(3)  Ground 3: The statement in Tse’s Affirmation made in support of the Ex Parte Application that “no application for stay of execution has ever been made by the Defendant” is false and misleading, and constitutes “aggravated gross misrepresentation”.

(4)  Ground 4: The Notice of Proceedings failed to meet the requirement of §45/3/3 of Hong Kong Civil Procedure 2023 (“HKCP”).

22.  The Defendant submitted that each of the four grounds above is sufficient in itself for the Writ of Possession to be set aside.

C.  ANALYSIS

23.  In my view, it is plain that none of the 4 grounds put forward by the Defendant has any merit for the reasons set out below.

C1.  Ground 1: Allegation that the Stay of Execution Order continues to be valid

24.  The Defendant contends that the Writ of Possession should be set aside by reason that the Stay of Execution Order continues to be valid until the CFA Leave Application is dismissed or the Court of Final Appeal orders new terms for stay of execution pursuant to Section 26 of the Hong Kong Court of Final Appeal Ordinance (“CFAO”), when leave to appeal is granted. 

25.  Such contention is obviously misplaced and is rejected.

26.  The Defendant’s application for the Stay of Execution Order (which was ordered by consent) was made to Deputy High Court Judge Le Pichon under Order 59 rule 13(1) of the Rules of the High Court (“RHC”), which provides as follows:

“(1) Except so far as the court below or the Court of Appeal or a single judge may otherwise direct-

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;

(b)   no intermediate act or proceeding shall be invalidated by an appeal.”

27.  The Defendant applied for stay of execution of the 22 May 2019 Order made by Deputy High Court Judge Le Pichon pending the determination of his appeal (by Notice of Appeal dated 19 June 2019) to the Court of Appeal against the 22 May 2019 Order (i.e. the CA Appeal defined above).  This was confirmed in the Defendant’s two Affidavits dated 1 August 2019 and 12 August 2019 filed in support of the stay application.

28.  The Stay of Execution Order also specifically states that the execution of the 22 May 2019 Order would be stayed pending the hearing or disposal or determination of the Defendant’s “intended Appeal” or further Order of the Court. The only “Appeal” intended by the Defendant at the time was the CA Appeal.

29.  Further, the jurisdiction exercised by Deputy High Court Judge Le Pichon under Order 59 rule 13(1) RHC as a single judge when she made the Stay of Execution Order was limited to the stay of execution of the 22 May 2019 Order pending the determination of the CA Appeal. There is no jurisdiction for a single judge of the Court of First Instance to grant any stay of execution pending an appeal to the Court of Final Appeal.

30.  In respect of applications for stay of execution pending an appeal to the Court of Final Appeal, such applications are governed by Section 26 of the CFAO, and only the Court of Appeal or the Court of Final Appeal have jurisdiction to grant such stay.  Section 26(1) of the CFAO provides:

“Where a judgment appealed from requires the appellant to pay money or perform a duty, the Court of Appeal or the Court, as the case may be, shall have power, when granting leave to appeal or subsequently, either to direct that the judgment shall be carried into execution or that the execution shall be suspended pending the appeal.”

31.  See also the commentary at Hong Kong Civil Procedure 2023 at §59/13/11 which similarly provides:

“Stay pending appeal to the Court of Final Appeal - See s.26 of the Hong Kong Court of Final Appeal Ordinance (Cap.484). The Court of Appeal or the Court of Final Appeal have power, when granting leave to appeal or subsequently, to direct either that the judgment be carried into execution or that execution be suspended pending appeal. In either case, security may be ordered.”

32.  Where an application to the Appeal Committee for leave to appeal was pending, there was an implied power, exercisable by a single judge of the Court of Final Appeal, to grant an interim stay of execution. This power was reasonably required to ensure the effective exercise by the Appeal Committee of its statutory jurisdiction in relation to such applications: see Joint & Several Liquidators of Kong Wah Holdings Ltd v Grande Holdings Ltd (2006) 9 HKCFAR 795, §§7-13.

33.  For the above reasons, the only possible interpretation of the Stay of Execution Order is that the duration of the stay would only be until determination of the CA Appeal i.e. 19 January 2022 in this case. Upon determination of the CA Appeal on 19 January 2022, the Stay of Execution Order ceased to have effect and the stay was lifted.

C2.  Grounds 2 & 3: Alleged failure to disclose the Stay of Execution Order and representation that no application for stay of execution has ever been made

34.  The Defendant submits that the Writ of Possession should be set aside essentially for material non-disclosure by reason of (i) the failure by the Plaintiffs to draw the Master’s attention to the Stay of Execution Order; and (ii) the statement in Tse’s Affirmation that “no application for stay of execution has ever been made by the Defendant” (“Tse’s Statement”), which the Defendant contends to be false and misleading.

35.  In light of my views stated in Section C1 above, the Stay of Execution Order would have lapsed upon the dismissal of the CA Appeal on 19 January 2022.  As at the time of the Ex Parte Application on 18 January 2023 (and when Tse’s Affirmation was filed), the Stay of Execution Order had already lapsed for a year and had thus become irrelevant.  Hence, failure to mention it cannot amount to a material non-disclosure. 

36.  Further, Tse’s Statement should be read in context.  Paragraph 6 of Tse’s Affirmation containing Tse’s Statement reads as follows:

“6. Although the Defendant has applied for leave to appeal against the [CA Judgment], no application for stay of execution has ever been made by the Defendant.”

37.  When the entire paragraph is read in context, Mr Tse was clearly referring to there being no application by the Defendant for stay of execution of the CA Judgment pending his application for leave to appeal to the Court of Final Appeal, which was factually correct.

38.  I reject the Defendant’s submission that Tse’s Statement is in any way misleading.

39.  Given that the Stay of Execution Order had already lapsed on 19 January 2022 when the CA Appeal was determined, the fact that it was once in place has no relevance to the Ex Parte Application or the Plaintiffs’ entitlement to leave to issue the Writ of Possession.

C3.    Ground 4: Allegation that the Notice of Proceedings failed to meet the requirement of §45/3/3 of HKCP 2023

40.  Pursuant to the 22 May 2019 Order, the Defendant ought to have delivered vacant possession to the Plaintiffs on 14 August 2019, being 12 weeks from the date of such order.  The period for compliance had already expired by the time that the Stay of Execution Order was made on 9 September 2019.  Hence, the Plaintiffs were entitled to recover possession immediately once the stay was lifted on 19 January 2022.

41.  The Defendant argues that he ought to be entitled to another 12 weeks from the dismissal of the CA Appeal (i.e. 12 weeks from 19 January 2022) to deliver vacant possession, and hence the deadline of 8 March 2022 stated in the Notice of Proceedings for the Defendant to vacate the Property was a “mistake”.  

42.  The Defendant’s argument is plainly without legal basis.

43.  Whilst a stay of execution of an order has the effect of stopping time from running for the doing of an act required by the order[1], in the present case, the 12-week time period allowed by the 22 May 2019 Order for the Defendant to deliver vacant possession of the Property had already lapsed when the Stay of Execution Order was granted.  Hence when the stay was lifted on 19 January 2022, the Plaintiffs were entitled to obtain vacant possession from the Defendant immediately, subject to the requirements stated in §45/3/3 of HKCP 2023 being met, namely:

“The supporting affidavit must show that: (a) notice of the proceedings in both English and Chinese addressed to all persons in actual possession has been posted on 3 successive days upon the main door or entrance to the premises; and that (b) a minimum of 4 clear days has elapsed from the last of the said 3 days to the date upon which such leave is sought.”

44.  In the present case, Tse’s Affirmation showed that the Notice of Proceedings in both English and Chinese was posted at the main door of the Property on 3 successive days i.e. 28 February 2022, 1 March 2022 and 2 March 2022, hence the earliest day on which the Plaintiffs may request the Defendant to deliver vacant possession of the premises was 8 March 2022, being 4 clear days after 2 March 2022.  There is no defect in the Notice of Proceedings at all.

45.  In any event, the Writ of Possession was only issued on 4 April 2023, over a year after the Notice of Proceedings was issued.  On any view, the Defendant had ample time to vacate the Property. 

D.   DISPOSITION AND COSTS

46.  For the reasons stated above, the Defendant’s Appeal is dismissed.   As to costs, I see no reason why costs should not follow the event.

47.  The Plaintiffs have asked for indemnity costs.  I agree that an order for indemnity costs is justified given that the Defendant’s purported grounds of appeal are obviously unmeritorious and unarguable, and should not have been pursued.

48.  I therefore order that costs of the Defendant’s Appeal be paid by the Defendant to the Plaintiffs to be assessed summarily on an indemnity basis.

49.  The Plaintiffs provided to the Court and to the Defendant a statement of costs on the day of the hearing (“Ps’ Statement of Costs”).  I direct that the Defendant shall, within 7 days, i.e. on or before 21 August 2023 provide to the Court and to the Plaintiffs’ solicitors a statement of objections to Ps’ Statement of Costs, if any.  I will then make a summary assessment of the costs on the papers.