SAMUEL LEE TAK YEE v. CHEN PARK KUEN AND OTHERS

CACV 324/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 324 OF 2000

(ON APPEAL FROM HCA NO. 9928 OF 1996)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a decision of Deputy Judge Chu (as she then was) given on 4 July 2000. The matter arose in this way: The action with which this appeal is concerned was set down for trial to commence on 3 July. The first two days were taken up with, among other matters, an application for an adjournment.

2. There is a very long history to this case and I do not propose to set it out in any great detail, save to say this. It began with two gentlemen, H Y Lee and H T Lee, back in the early part of the last century and they set up various companies. One of them was HY and HT Lee Brothers & Company Limited and that was subject to winding up proceedings which were heard by Le Pichon J (as she then was) in 1999. H Y Lee had a son, M W Lee, and he married a lady called Lee Ng Chan Wa. They had 6 children, one of whom is the plaintiff in this case and two of them are defendants in this case.

3. This case in its narrowest form concerns a hundred shares in a company called The Prudential Enterprise Limited. One of the questions is how that shareholding arose. The hundred shares were in the name of the deceased wife of the 1st defendant. The deceased wife was the 3rd child of M W Lee and Lee Ng Chan Wa. She died in 1970. One of the questions which is going to arise in this case is how it came about that the shares were in her name and where they came from. There is a dispute between the parties as to how that happened, whether they came from the father, M W Lee or whether they came from the mother; whether they formed part of the mother's estate, or whether they in fact came from the father and were in effect advancements, the monies to subscribe for and pay for the shares actually coming from other family companies.

4. This case in itself has had a very chequered history. The plaintiff in this case was only made the plaintiff by an order of Beeson J. That was an order to which the 2nd and 3rd defendants consented following a Beddoe application which had been heard by Yam J. The 1st defendant objected to the order. One of the difficulties of the plaintiff's case can be seen immediately because he pleads his case on the basis that as well as being a specific legatee under the will of Madam Lee Ng Chan Wa he would have some interest in the shares if they belonged to the mother's estate. He is not the executor and the question which will arise is whether he has a locus. Determination of this and other issues arising in this case in a way which will bind the estate is complicated by the fact that there are a number of other actions which are outstanding.

5. In 1992, the plaintiff in this action filed a caveat in respect of the probate of his mother's will. Proceedings in relation to the caveat were thereafter started in 1995 and these have been called the caveat proceedings. There is also an action launched by the plaintiff which is referred to as the removal action.

6. Finally, there are winding up proceedings in respect of The Prudential Enterprise Limited. Apart from that, there are what might be called a plethora of other actions to which I do not propose to refer, but many of the issues which arise in those actions may also touch upon the issues which arise in the four actions to which I have referred already.

7. When the judge below was considering the question of adjournment, it at once became apparent that the issues arising in the cases were intertwined. In particular it was impossible to determine the issues in this action in a way which will bind all parties without determining the caveat proceedings and the removal proceedings. Also the issues in the winding up proceedings would have a direct impact upon the question as to the ownership of the hundred shares which were involved in this action. As a result, the judge below made the following order,

"The trial of this action be adjourned until determination of the Proceedings in respect of the estate of Madam Ng Chan Wa, deceased, namely, Caveat No. 358 of 1995, and HCA 9522 of 1997 and the Petition for the Winding Up of The Prudential Enterprise Limited, (HCCW 594 of 1999)."

8. Now that is a matter of case management and, of course, orders which are made in respect of case management are in their nature provisional. It is open to the judge on a later occasion to make further orders and to give further directions as to the proper progress of the action.

9. When a matter of case management comes before the Court of Appeal, it is a very high hurdle for those seeking to challenge an order made by a judge below to succeed on an appeal. The Court of Appeal is not the court which will be hearing the case; it is the judge below who will be hearing the case. It is the responsibility of the judge below to order affairs and to order the way in which the case is going to be conducted in the manner which appears best suited to the judge to come to a proper and fair judgment in the matter. The judge below cannot carry out that task if the Court of Appeal is going to direct this, that and the other as to how issues are going to be decided, what issues should be decided first and in what order matters are going to be taken. Those were essentially matters for the judge to decide. Only if the judge has gone clearly wrong and made orders which will clearly involve either an injustice or an inability for the trial court to carry out its task will the Court of Appeal interfere in matters of case management of this sort. In my view, this appeal simply must fail from the beginning.

Hon Le Pichon JA:

10. I agree with the judgment of the Vice-President.

11. I wish to clarify one point. The plaintiff claims to be a contingent residuary beneficiary under the estate of his mother and a specific legatee but not of the shares in question and he apparently seeks to launch the action as representative, on behalf of the estate. For my part, I see considerable difficulties with his having any locus to be plaintiff in the action but that is not a question that is before us today and I need say no more about it.

12. On the question of the appeal against the order made by the Deputy Judge Chu (as she then was), as the Vice-President said, it concerns case management and it is not the function of the Court of Appeal to interfere with orders made by the trial judge unless she has been shown to have gone plainly wrong. In the present case she was perfectly entitled, given the interrelationship between the various proceedings, that that is the best way for the matter to proceed and I see no ground for interfering with the orders she has made. I, too, would dismiss this appeal.