MAN’S (ASIA) DEVELOPMENT LTD v. SECRETARY FOR JUSTICE

HCA 2252/2013

[2022] HKCFI 187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2252 OF 2013

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REASONS FOR DECISION

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1.  Before the court is an application by the Secretary for Justice (“the Government”) to enter judgment against Man’s (Asia) Development Limited (“the plaintiff”) following its breaches of a Tomlin Schedule to an amended consent order of 15 November 2019 (“the Tomlin Order”).

2.  At the commencement of the hearing, the plaintiff’s solicitors, Messrs Cheng & Ng (“the Firm”) made an application through counsel for leave to cease to act as solicitors for the plaintiff pursuant to RHC Order 67, rule 6 (1).

The Firm’s application

3.  This late application by summons dated 13 January 2022 came about because on 12 January 2022, at a meeting with the plaintiff’s sole director, Mr Chan Wai Leung Jacky (“Mr Jacky Chan”) from whom the Firm had been receiving instructions, the Firm’s retainer was terminated.

4.  It transpired that the Firm had obtained advice from counsel on the merits of the case with which Mr Jacky Chan disagreed and his instructions on the plaintiff’s behalf would conflict with the Firm’s duty to the court causing a serious breakdown in confidence between the plaintiff and the Firm.

5.  When the Firm was informed that Mr Jacky Chan wished to appear in person and explain the plaintiff’s position to the court, the plaintiff was advised that it requires legal representation unless leave had been obtained from the court.

6.  Having read the affirmation filed in support of the Firm’s application, this court made an order that the Firm ceases to be the solicitors for the plaintiff upon compliance with Order 67, rule 6 (1).

The Government’s application

7.  The Tomlin Order resulted from an action brought by the plaintiff in November 2013 claiming adverse possession against the Government in respect of certain lands in the New Territories. It transpired that the plaintiff had erected illegal structures on the location shown edged orange on the plan of the Appendix to the Tomlin Order (“the structures”) which straddled areas including land owned by other private landowners (“the other lots”) and unleased Government Lands.

8.  Following the order made upon the Firm’s application to cease to act, the plaintiff had no legal representative authorised to appear on its behalf. Although Mr Jacky Chan was in court, no leave had been obtained from the Registrar pursuant to Order 5, rule 6 (3) authorising him to do so.

9.  Subsequent to the filing of pleadings and evidence, in October 2019, the parties entered into a consent order staying all further proceedings in the action except for the purpose of carrying out the Tomlin Order and its terms into effect with liberty to apply.

10.  The plaintiff’s obligations are set out in the Tomlin Order which may be summarised as follows:

(1) to pay mesne profits of $1,837,157 by 23 November 2019;

(2) to pay the agreed rate of $24,510 per month commencing 1 October 2019;

(3) to submit to the Lands Department by 23 December 2019

(a) a registered structural engineer’s report on safety of the structures;

(b) written consent of private owners of the other lots; and

(c) an indemnity to the Government;

(4) to refrain from using or occupying the structures pending (3) above; and

(5) to demolish or remove the structures at its own costs in the event of any default under (3) above.

11.  The plaintiff defaulted on each of its obligations set out in the preceding paragraph although, belatedly and after present summons had been taken out, on 20 July 2021, it paid the amount specified in §10 (1) above.

12.  The present application based on the plaintiff’s default was issued on 11 January 2021. The skeleton submissions dated 10 January 2022 from the plaintiff’s former counsel make it plain that the plaintiff does not dispute the breaches complained of and will not contest the application.

13.  The supplemental skeleton submissions filed on behalf of the plaintiff dated 11 January 2022 intimated that the plaintiff wishes the court to adopt a sympathetic approach in considering whether to enter judgment against the plaintiff in that the plaintiff has been actively complying with the Tomlin Order.

14.  Mr Mark Chan, Deputy Principal Government Counsel, submitted that the relief sought is by way of enforcement of the Tomlin Order. It is relief to which the Government is entitled and is not in any sense a penalty.

15.  Proposed terms of the order were handed up seeking final judgment that reflects the relief sought in its summons with an appropriate adjustment to take into account the payment made by the plaintiff in July 2021.

16.  Having perused the draft order submitted, I was satisfied that it is relief to which the Government is entitled. Accordingly, I made an order in terms.