TAM CHI KOK GABRIEL v. FOK EUGINA

HCA 1859/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1859 OF 1992

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J U D G M E N T

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Facts

1. I have before me an application to strike out the writ of summons and dismiss the action, and a cross application by the Plaintiff to file the statement of claim out of time.

2. Fok Cho Min, deceased ("the deceased") made his last will in Chinese on 15 June 1975. He appointed two of his brothers, TM Fok and Fok Cho Yue as his "executors" (the correctness of this English translation is in dispute - see below).

3. On 19 August 1975, the deceased passed away. On 21 November 1975, Fok Cho Yue renounced his right and title as "executor" under the deceased's will, leaving TM Fok as the only "executor". TM Fok instructed a firm of solicitors (C Y Kwan & Co.) to handle probate, and in the course of it, an English translation of the will was prepared by a solicitor in the employ of the firm (Albert Ho). The translation was certified by a court translator (C C Hsu).

4. On 1 August 1978, probate of the will was granted in favour of TM Fok as the executor named in the will.

5. On 16 October 1978, upon legal advice, TM Fok as executor of the deceased took out a construction summons (High Court Miscellaneous Proceedings No. 582 of 1978), seeking the court's determination on whether the executor had a general or specific power of appointment under the will. In short, the court was asked to determine whether the executor had a specific power to distribute the deceased's residuary estate amongst 16 specified persons (including, amongst others, TM Fok himself, the lawful widow and the four legitimate children of the deceased - see below), or whether the purported power to distribute was a general power to distribute to the world at large (in which event the same would be void for uncertainty, resulting in an intestacy situation in respect of the residuary estate).

6. The construction summons named another brother of the deceased (Fok Yan Nung) - one of the 16 potential appointees as a representative defendant, to represent the potential appointees' interest in the litigation.

7. The matter came before the late Zimmern J for determination. The certified English translation of the Chinese will was used by the court in the construction process. On 12 December 1979, the learned judge came up with a construction in favour of a power to distribute amongst the named persons only. In other words, no partial intestacy arose.

8. By a twist of fortune, the order of Zimmern J was never drawn up and sealed by the solicitors then acting for TM Fok. The four legitimate children of the deceased including her only daughter Cynthia Fok ("the Children") were unhappy with the construction placed by the court, having found out the proceedings and the court's determination in around 1980. In May 1985, they successfully applied to the Court of Appeal for leave to be joined as defendants in the proceedings. Furthermore, because Zimmern J's order was never sealed, time for appealing against the learned judge's order never began to run. In those circumstances, after the Children were joined as parties, they appealed against the determination to the Court of Appeal (Civil Appeal No. 28 of 1985). On 25 March 1986, the Court of Appeal, which like Zimmern J relied on the certified English translation of the Chinese will for its determination of the appeal, allowed the appeal and held as a matter of construction that the power of appointment was in respect of the world at large. In those circumstances, it was void for uncertainty, and a partial intestacy situation thus arose in respect of the residuary estate of the deceased.

9. However, in the meantime, based on Zimmern J's order, and acting on legal advice, TM Fok had exercised the power of appointment, vesting the residuary estate on himself, with a view to making (strictly speaking - voluntary) distribution of the residuary estate so vested in favour of most of the 16 potential appointees. Indeed, distribution was so made according to a distribution plan devised by him. It should be stressed that prior to the Court of Appeal's overturning of Zimmern J's construction of the relevant part of the will, TM Fok's appointment of the residuary estate in favour of himself was perfectly lawful, and what he did with the estate after the vesting exercise was entirely within his own power.

10. Furthermore, TM Fok did not live long enough to see the overturning of Zimmern J's decision. He passed away on 28 May 1983. He was survived by his widow (Kimball Wong) and their daughter (Eugina Fok - the present Defendant). Kimball Wong was the named executrix of TM Fok's will, and as such she also became the executrix of the deceased (by succession) on 7 December 1983. On 5 June 1984, she also obtained probate of the will of her late husband (TM Fok).

11. After the Court of Appeal judgment in 1986, and after the abandonment of an intended appeal to the Privy Council for which leave had been obtained, on 22 January 1988, Jones J made an order discharging Kimball Wong as successive executrix of the deceased, and instead appointed the Children as joint administrators of the estate of the deceased (with the will annexed), upon Kimball Wong's own application (MP 1790 of 1987).

12. On 16 March 1992, the Children, as joint administrators of the estate of the deceased, commenced the present action by the issue of a writ of summons against Kimball Wong "as the sole executrix and beneficiary of the estate of [TM Fok] and thereby as the sole executor of the estate of [the deceased] since the death of [TM Fok] and the granting of probate to the will of [TM Fok]".

13. According to the general endorsement of claim, the claim against Kimball Wong is as follows:

"1. The Plaintiffs claim as Administrators of the Estate of Fok Cho Min, deceased, against the Defendant as the sole executrix and beneficiary of the estate of Fok Tso Moon, deceased, and thereby as the sole executor of the Estate of Fok Cho Min, deceased, since the death of Fok Tso Moon and the granting of probate to the will of Fok Tso Moon, but who was discharged from further administration of the Estate of Fok Cho Min by the Order of the Court dated 22nd January 1988.

2. The Plaintiffs' claim against the Defendant is for:-

(i) An order for an account of the real and personal Estate of the said Fok Cho Min, deceased;

(ii)	(a) An inquiry as to the loss suffered by the Estate of said Fok Cho Min deceased resulting from or occasioned by or in connection with the wilful default and/or fraudulent, reckless, negligent or other misconduct or omission on the part of Fok Tso Moon, deceased and/or the Defendant in the administration of the Estate of the said Fok Cho Min;
	(b) An order that the Defendant do made good and pay to the Plaintiff such loss found to be suffered by the Estate or such sum or sums due by the Defendant to the Estate upon such inquiry together with interest thereon;

(iii) An account of all profits by the Defendant and an order for payment upon the taking of such account;

(iv) All consequential or necessary orders, directions accounts or inquiries and all remedies of tracing;

(v) Further or alternatively, damages for and arising out of the aforesaid default or misconduct or omission and interest on such damages;

(vi) Further or other relief;

(vii) costs."

14. The writ was not served within its one year of validity. Instead, on 16 March 1993, the writ was renewed, on application, for another 12 months.

15. On 27 October 1993, Liu J (as he then was) made an order in the 1987 action commenced by Kimball Wong for her discharge as successive executrix of the deceased (i.e. MP 1790 of 1987) that the grant of probate of the will (back in 1978) of the deceased in favour of TM Fok be revoked and declared null and void,

"without prejudice to any right claim or cause of action that the [Children] have or might have against [Kimball Wong] or other persons concerned for any breach of trust, fraud, misconduct or negligence committed by her or them or by [TM Fok]".

16. In March 1994, the lawful widow of the deceased (Fok Chan Sau Mui), the natural mother of the Children, passed away.

17. On 14 March 1994, 2 years less 2 days after the writ was first issued, it was finally served on Kimball Wong. She filed an acknowledgement of service on 29 March 1994, indicating an intention to defend the action. No statement of claim was filed by the Plaintiff.

18. In 1995, the 2nd "wife"/concubine (or mistress) of the deceased (Wu Hor Kwai) passed away.

19. More importantly, on 28 July the same year, Kimball Wong herself passed away. On 13 February 1996, probate was granted to Kimball Wong's daughter, Eugina Fok - the present Defendant, as executrix named in Kimball Wong's last will.

20. Apparently because of disagreements amongst themselves and other reasons, in an action commenced by one of the four Children (Cynthia Fok) against the other three (MP 371 of 1997), Pang J made an order appointing a judicial trustee (Gabriel Tam of KPMG Peat Marwick) of the estate of the deceased, in lieu of the Children as joint administrators, on 21 October 1997. Amongst other things, the judicial trustee was specifically empowered under the order of the learned judge to employ lawyers "for the purposes of taking action against any person or solicitors' firm for negligence or impropriety in relation to the [estate of the deceased] and/or in dealing with the assets of [the deceased's estate], including bringing or continuing any suit against the former executrix, Kimball Wong". A further order was made by Pang J on 21 October 1997 giving further powers and directions to the judicial trustee.

Applications

21. On 20 July 2000, the judicial trustee took out an application in the present action to substitute himself as the sole Plaintiff in place of the original Plaintiffs (the Children), and to substitute Eugina Fok as the Defendant (in her capacity as executrix) in place of the deceased Kimball Wong, and more importantly for leave to file and serve a statement of claim out of time - more than 8 years after the writ was first issued and 6 years after an acknowledgement of service was filed by Kimball Wong whilst she was still alive.

22. On 26 August 2000, the Defendant took out an application to strike out the writ of summons and dismiss the action on the ground that the claims or causes of action in the present action had become time-barred, that no statement of claim had been filed, and/or that the action was liable to be struck out for want of prosecution.

23. Steps were taken and further delay occurred before the two substantive applications were eventually heard by me, the parties having been substituted by orders of the court.

24. It should be remembered that apart from the deceased, TM Fok, Kimball Wong, the lawful widow of the deceased, and the second "wife"/concubine (or mistress) of the deceased, have all passed away as referred to above. Moreover, Fok Yan Nung (a brother of the deceased who was named as the representative defendant in the construction summons) passed away in August 1982, and the other two brothers of the deceased have also passed away. Furthermore, of the four Children, i.e. the original Plaintiffs in the present action, two have since passed away. Cynthia Fok, who has filed an affirmation in respect of the present applications, is now 77 or 78 years old. Her only surviving brother, Fok Shiu Ying, is also an elderly gentleman said to be in his 80s.

25. I should also point out that in the judicial trustee's summons for leave to file a statement of claim out of time, it did not refer to any specific statement of claim as such. No draft statement of claim was annexed to the summons. However, in a supporting affirmation filed by the judicial trustee, a draft statement of claim prepared by the judicial trustee's then counsel was exhibited. That affirmation was made in July 2000. On 9 May 2003, almost 3 years after the first surfacing of the draft statement of claim and literately minutes before the two applications were due to be heard by Yam J, the Plaintiff's present counsel (Mr Alexander Wong) produced to the court and showed his opponent an amended draft statement of claim containing various important and most serious amendments to the original draft - see below. Being of the view that the Defendant should be afforded a decent opportunity to consider the latest draft, Yam J of his own motion adjourned the hearing, and that was the last link in the chain of events which led ultimately to my hearing the two applications.

26. Given that the summons for leave to file a statement of claim does not specify a particular statement of claim in respect of which leave is sought, strictly speaking the Plaintiff needs no leave from the court to amend the draft statement of claim or amend his summons for leave to file the statement of claim out of time. The application for leave to file the statement of claim out of time was in fact proceeded with on the basis of the latest amended draft. I have heard the two cross applications together. There are, of course, several possible ways to deal with the two applications. I find it convenient and I propose to deal with the amended draft statement of claim first. My purpose is three-fold: first, if any matter, claim or cause of action pleaded in the latest draft is obviously unsustainable (because of pleading defects, lack of merits, or otherwise), that is of itself a good reason to at least disallow that part of the statement of claim to be filed out of time; secondly, if any of the pleaded causes of action was already time-barred when the writ was issued back in 1992, it should be struck out, which is indeed part of the Defendant's application to strike out; and thirdly, the question of whether the pleaded causes of action are time-barred (if the writ had not been issued in 1992) is of course of great importance to the Defendant's application to strike out based on want of prosecution (see below).

27. Bearing all this in mind, I now turn my attention to the latest draft statement of claim.

Latest draft Statement of Claim

28. The first major complaint against TM Fok, which was added in the latest revision by the Plaintiff's present counsel, is in relation to the alleged mistranslation of the Chinese will (paragraph 5A). According to the pleading, the will was translated by Albert Ho and was certified by a court translator.

29. Paragraphs 5B to 5I, all under the caption "Fraudulent Practice on the part of TM Fok", make most serious allegations against TM Fok. They read as follows:

"Fraudulent Practice on the part of TM Fok

5B. TM Fok who was well versed with the Chinese language knew and/or ought to know of the material difference between an "adopted father" and "step father" and knew and/or ought to have known the difference between a "kit fat wife" and a "concubine" and/or "mistress" and/or cohabitee.

5C. TM Fok who at all material times knew the different status of Chan Sau Miu as the lawful and/or "Kit Fat" wife of CM Fok and Wu Hor Kwai as a mistress and/or cohabitee of CM Fok with a daughter Helen fathered by another man before staying in the household of CM Fok.

5D. TM Fok was aware, knew and/or ought to have known that the whole spirit of the said Will in the Chinese language was not to make TM Fok or Fok Cho Yue or any of them beneficiaries of the residual estate nor was there any absolute gift to them nor further any gift to them in default of distribution. By proposing a scheme of distribution wherein only 11 out of the special class of 16 persons received various shares out of the total of 105 shares of the residue estate after all special bequests made. By a Deed of Appointment dated 14th April 1982, declared by TM Fok as self assumed executor, all unadminstered, undivided and unappointed estate had been vested to himself.

5E. Well aware of the above as pleaded in paragraph 5B, 5C and 5D in the Statement of Claim herein TM Fok without the knowledge and consent of the five next of kin of CM Fok applied to the High Court by way of Originating Summons naming Fok Yan Nung as representative defendant on behalf of the persons named in the said Chinese Will based on the said mistranslated certified translation and an incomplete and incorrect selected branch of the family tree of CM Fok.

5F. TM Fok colluded with Fok Yan Nung by misleading the Court that there was a special power of appointment so that TM Fok and Fok Yan Lung and the other persons named in the said Chinese Will belonged to the class of persons to whom that special power of appointment related would be benefited.

5G. TM Fok should have been well advised by his legal advisers that had the Court decided the terms of the said Chinese Will had not created a power of appointment but a discretionary trust to the world at large such would be void for uncertainty the estate of CM Fok would have devolved as if on intestacy whereby only those persons named in paragraph 5 of the Statement of Claim hereof would benefit from such intestacy.

5H. Fraudulently neither TM Fok nor his legal advisers retained by him had informed any member of the immediate family member and/or children of CM Fok of the said proceedings nor any document related thereto was served to any of them until long after judgment was pronounced by Mr Justice Zimmern on 12 December 1979.

5I. By a letter dated 6th November 1978, Cynthia Fok did complain to Albert C Y Ho of Messrs C Y Kwan & Co of the mistranslation who ignored and/or took no notice of the same."

Pleading fraud

30. I find the allegation of fraud made against TM Fok and for that matter, the allegation of collusion made against him together with Fok Yan Nung (para. 5F), and the allegation of fraud against TM Fok and his "legal advisers" (para. 5H) wholly objectionable and scandalous. In Armitage v Nurse [1998] Ch 241, Millett LJ (as he then was) reminded the profession of the seriousness of a plea of fraud and how the plea, when warranted by circumstances, should be pleaded (at pp. 256F/G-257D):

" The general principle is well known. Fraud must be distinctly alleged and as distinctly proved: Davy v Garrett (1878) 7 Ch. D. 473, 489, per Thesiger LJ. It is not necessary to use the word "fraud" or "dishonestly" if the facts which make the conduct complained of fraudulent are pleaded; but, if the facts pleaded are consistent with innocence, then it is not open to the court to find fraud. As Buckley LJ said in Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch. 250, 268:

"An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word 'fraud' or the word 'dishonesty' must be necessarily use...The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity."

That case is authority for the proposition that an allegation that the defendant "knew or ought to have known" is not a clear and unequivocal allegation of actual knowledge and will not support a finding of fraud. It is not treated as making two alternative allegations, i.e. an allegation (i) that the defendant actually knew with an alternative allegation (ii) that he ought to have know; but rather a single allegation that he ought to have known (and may even have known - though it is not necessary to allege this).

Before turning to the pleadings I would add one thing more. In order to allege fraud it is not sufficient to sprinkle a pleading with words like "wilfully" and "recklessly" (but not "fraudulently" or "dishonestly"). This may still leave it in doubt whether the words are being used in a technical sense or merely to give colour by way of pejorative emphasis to the complaint."

31. Further, in ADS v Wheelock Marden & Co. Ltd [1994] 2 HKC 264 (CA), Bokhary JA (as he then was) had this to say regarding pleading fraud and the like (at pp. 269E-270E/F):

"What pleadings must do - generally...

Those complaints go to pleadings. So does the bulk of the other complaints ventilated before us. That being so, it is important to remember this. Our procedure aims to ensure that litigation, particularly the trial itself, is conducted fairly, openly, free from surprise, and without unnecessary delay or expense. In the attainment of that objective, pleadings have a fundamental role to play. Accordingly, there are a number of things which pleadings should do. Ideally, they would do them from the outset. In any event, they must do them by the time they have been properly particularized - whether particularized on the pleader's own initiative, upon the other side's request, or pursuant to the court's order.

What those things are is to be gathered from the decided cases. That exercise has been performed by the learned editors of the 1993 Supreme Court Practice. And, as one sees from note 18/12/2 at pp 307-308 of Vol. 1 thereof, the things which properly particularized pleadings must do are to:

(1) inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2) prevent the other side from being taken by surprise at the trial;

(3) enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4) limit the generality of the pleadings, the claim and the evidence;

(5) limit and define the issues to be tried, and as to which discovery is required; and the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).

...and especially where fraud is alleged

To the generality of the foregoing must be added the special rule that allegations of fraud must be pleaded distinctly and with the utmost particularity. The word 'distinctly' is the one used by Thesiger LJ in his well-known statement in Davy v Garrett (1878) 7 Ch. D 473 at p. 489 as to how fraud is to be pleaded. And the expression 'utmost particularity', as one sees from note 18/8/8 at p. 297 of Vol. 1 of the 1993 Supreme Court Practice, is the one chosen by its learned editors and has the authority of their combined experience. That special rule arises in this case.

Never before as much as now

None of the basic rules of pleading have anything to do with technicality. All of them have everything to do with practical justice. They have always been of importance. Never before as much as now. For these days, there are more and more cases so vast and so complex that they push practically to its limit our system's capacity effectively to cope with them. Any laxity in their proper management, whether in regard to pleadings or anything else, can all too easily result in such cases spinning into confusion if not chaos - even before trial but especially at trial. The present case, for the trial of which half a year has been reserved, is such a case."

Fraud - defectively pleaded

32. On any fair reading, paragraphs 5B to 5E must be read and regarded as pleading a case of fraud against TM Fok, although in the body of those paragraphs, the word "fraud" has not been used, and Mr Alexander Wong - counsel who signed the latest draft - did not shy away from this reading of his pleading at the hearing. As has been pointed out by Millett LJ in Armitage, it is indeed not necessary to use the word "fraud" or "dishonesty" if the facts which make the conduct complained of fraudulent are pleaded. Furthermore, these paragraphs are, as I observed above, pleaded under the caption "Fraudulent Practice on the part of TM Fok".

33. No or no proper particulars of the allegation of fraud or "fraudulent practice", or the allegation of knowledge, alleged in paragraphs 5B to 5E of the latest draft are pleaded. This is particularly objectionable when the translation was not done by TM Fok but by a solicitor (Albert Ho), and has been certified by a court translator, as indeed has been pleaded in paragraph 5A of the same draft. Although it is pleaded in paragraph 5B that TM Fok was "well versed with the Chinese language", in the absence of a further plea that he was also well versed in the English language as well as the art of translating documents written in one language to another (as to which there is no evidence), the bare allegation that he was aware of the alleged mistranslation is totally hopeless.

34. The "ought to know" and "ought to have known" alternatives are totally insufficient to support an allegation of fraud. In any event, no particulars whatsoever are pleaded in support of these bare allegations.

35. The allegation of "collusion" pleaded against TM Fok and Fok Yan Nung to "mislead" the court in the construction summons (paragraph 5F) is likewise devoid of particulars.

36. The "should have been well advised" in paragraph 5G is neither here nor there and certainly cannot support a case based on fraud.

37. The fraud pleaded against TM Fok and his legal advisers in paragraph 5H is open to the same fatal objection.

38. For this reason alone, insofar as this part of the draft seeks to plead a case of fraud against TM Fok, it is absolutely objectionable and cannot be allowed to remain in any statement of claim that the court may be minded to allow the Plaintiff to file out of time. Put another way, this part of the Plaintiff's case that is included within the ambit of the general endorsement in the writ of summons must be struck out as being scandalous, frivolous or vexatious, or otherwise being an abuse of the process of the court.

Fraud - unsustainable on the pleaded facts

39. There are further reasons for objecting to this part of the latest draft. The alleged mistranslations are totally irrelevant to the Plaintiff's claim against TM Fok (and Kimball Wong) in respect of the administration of the estate. The simple fact is that both Zimmern J and the Court of Appeal, which arrived at opposite constructions relating to the (purported) power of appointment in question, based their different decisions on the same certified English translation that is now said to have contained mistranslations. In other words, the alleged mistranslations of themselves did not cause the estate any loss.

40. The absurdity of the situation is compounded by the fact that in fact two of the four Children have since commenced a negligence suit against Albert Ho in relation to the alleged mistranslation of the Chinese will (HCA 9590/2000). In that action commenced by them, no allegation of fraud was made against Albert Ho (or for that matter the court translator). Nor was TM Fok alleged to be a wrongful party to the alleged mistranslation. It should be remembered that according to the Plaintiff's own pleaded case (para. 5A), Albert Ho translated the will into English, which translation was certified by the court translator. Yet in this action, the Plaintiff, i.e. the judicial trustee, sees fit to plead through counsel a case of fraud against TM Fok who did not do the translation or the certification.

41. As to the bringing of the construction summons, and the appointment of the representative defendant to represent the interest of the 16 potential appointees, Mr Alexander Wong, in seeking to uphold the latest draft which bears his signature, tries hard to argue that this caused loss to the estate (unlike the alleged mistranslations). Essentially he argues that nobody was named as a defendant to represent the next-of-kin (i.e. the lawful widow and the Children) who were interested in the construction issue because if the court construed the power as a general power of appointment, it would be void for uncertainty, and a situation of partial intestacy would arise.

42. Putting aside pleading for the time being, on the material before me, the question of possible intestacy was a question squarely placed before Zimmern J, because this was one of the questions specifically raised in the originating summons (by way of an amendment to the originating summons) for the court's determination. The appointment of Fok Yan Nung to represent the 16 potential appointees' interest under any specific power of appointment cannot be faulted. He was one of those potential appointees. As to the possible interest of the next-of-kin in case of intestacy, it must be remembered that at the time, neither the solicitors nor counsel of TM Fok, nor the court, thought it necessary or desirable to appoint another representative defendant to represent their (the next-of-kin's) potential interest. The natural inference to be drawn must be that they were all satisfied that that interest would be well protected by TM Fok as executor of the deceased. After all, although TM Fok was also one of the 16 potential appointees, he held his office as executor under the probate granted by the court. He was represented by solicitors and counsel. There was no reason to suppose that his solicitors and counsel would not have put before the court all possible arguments regarding the true construction of the power of appointment in question. Mr Alexander Wong accepts in argument that in order to make out a possible case of fraud, he needs to go further and ask the court to infer that TM Fok must have given instructions to his solicitors and counsel not to put forward wholeheartedly or at all the case of a general power of appointment and thus a possible case of partial intestacy, as a possible alternative for the court's consideration, in the construction summons.

43. I can find no or no sufficient warrant for drawing that inference on the material before me. In any event, no such case has been pleaded in the above extracted paragraphs in the latest draft whether by way of material facts or particulars. The one fact that stands out from the material before me is that by way of an amendment to the originating summons, the court's attention was specifically drawn to the possibility of partial intestacy.

44. As regards informing the immediate family members or children of CM Fok regarding the proceedings, which is the subject matter of paragraph 5H, by the nature of things, in order to sustain a case of fraud, the Plaintiff must also include the legal advisers of TM Fok as party to the fraud, because after all, TM Fok commenced and prosecuted the construction summons through solicitors and counsel. Indeed, this is what the Plaintiff has done in the latest draft, by pleading a case of fraud against not only TM Fok but also his legal advisers. I have been referred to much of the material that has been filed for the purpose of the present applications. I can find no trace of any evidence suggesting fraud on the part of TM Fok's then legal advisers. As I noted above, in the other action commenced by two of the Children against Albert Ho, no fraud was alleged. I am very surprised that in this action, now maintained by the judicial trustee, such an allegation of fraud is made.

Limitation periods

45. I now direct my attention to the limitation periods. Paragraph 7 of the latest draft pleads that as a result of the judgment of Zimmern J, TM Fok exercised the power of appointment and "appointed and distributed to himself a sum of HK$494,316.66". Further, "a total of about HK$13 million in cash and in kind had been distributed by TM Fok to persons who were otherwise not beneficiaries nor have any beneficial interest in the estate".

46. Paragraphs 20 to 33 of latest draft statement of claim go on to plead that TM Fok (and after his death Kimball Wong) failed to render any account relating to the administration, particularly after the reversal of Zimmern J's decision by the Court of Appeal in 1986, and the discharge of Kimball Wong as successive executrix in 1987.

47. In the prayer for relief, the Plaintiff claims for an account and other mostly consequential relief, as well as damages.

48. As regards limitation periods, ss. 4(1)(a) and (2), 20, 21 and 26 of the Limitation Ordinance (Cap. 347) are relevant, and it is convenient to reproduce them here:

"4. Limitation of actions of contract and tort, and certain other actions

(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say-

(a) actions founded on simple contract or on tort;

...

(2) An action for an account shall not be brought in respect of any matter which arose more than 6 years before the commencement of the action.

20. Limitation of actions in respect of trust property

(1) No period of limitation prescribed by this Ordinance shall apply to an action by a beneficiary under a trust, being an action-

(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party of privy; or

(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

(2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Ordinance, shall not be brought after the expiration of 6 years from the date on which the right of action accrued:

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession.

(3) No beneficiary as against whom there would be a good defence under this Ordinance shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Ordinance had been pleaded in defence.

21. Limitation of actions claiming personal estate of a deceased person

Subject to the provisions of section 20(1), no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of 6 years from the date on which the interest became due.

...

26. Postponement of limitation period in case of fraud, concealment or mistake

(1) Subject to subsection (4), where in the case of any action for which a period of limitation is prescribed by this Ordinance, either-

(a) the action is based upon the fraud of the defendant;

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistaken (as the case may be) or could with reasonable diligence have discovered it.

(2) References in subsection (1) to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

(3) For the purposes of subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

(4) Nothing in this section shall enable any action-

(a) to recover, or recover the value or, any property; or

(b) to enforce any charge against, or set aside any transaction affecting, any property,

to be brought against the purchaser of the property or any person claiming through him in any case where the property has been purchased for valuable consideration by an innocent third party since the fraud or concealment or (as the case may be) the transaction in which the mistake was made took place.

(5) A purchaser is an innocent third party for the purposes of this section-

(a) in the case of fraud or concealment of any fact relevant to the plaintiff's right of action, if he was not a party to the fraud or (as the case may be) to the concealment of that fact and did not at the time of the purchase know or have reason to believe that the fraud or concealment had taken place; and

(b) in the case of mistake, if he did not at the time of the purchase know or have reason to believe that the mistake had been made.

(6) Sections 31 and 32 shall not apply to any action to which subsection (1)(b) applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 4(1))."

Sections 4(1)(a), 4(2) and 20(2) - tort, account and trust

49. Insofar as the Plaintiff's cause of action regarding the residuary estate of the deceased is based on tort or trust (not falling within s. 20(1) - see below), the limitation period is 6 years: see s. 4(1)(a) and

s. 20(2) of the Limitation Ordinance. Given that the writ was only issued on 16 March 1992, nothing that TM Fok did (or failed to do) prior to his death in 1983, on the facts pleaded, can be complained of under these causes of action. Similarly, nothing that Kimball Wong did (or failed to do) prior to 16 March 1986 may be relied on as of itself comprising a cause of action based on tort or trust.

50. By the some token, insofar as the Plaintiff seeks to complain against TM Fok for failing to provide an account, the claim has become time-barred by 1992, because the limitation period for an action for an account is 6 years: s. 4(2) of the Limitation Ordinance, and TM Fok died in 1983.

51. Insofar as Kimball Wong is concerned, by the same reasoning, any failure to account in respect of dealings or matters that took place prior to 16 March 1986, i.e. 6 years before the writ was issued (on 16 March 1992) is quite irrelevant as being time-barred by the time the writ was issued.

52. Practically speaking, the only viable complaint under tort, trust or account is against Kimball Wong (i.e. her estate) and it would only be in relation to her alleged failure to give an account following the Court of Appeal judgment rendered on 25 March 1986, or to recover, restore and re-distribute assets that had been distributed prior to the Court of Appeal judgment (para. 30). In relation to all this, I accept that it was not time-barred when the writ was issued. But by now, the claim must have become time-barred (if the writ had not been issued in 1992).

Section 21 - recovery of share in estate

53. Mr Alexander Wong also seeks to place reliance on s. 21 of the Limitation Ordinance. In the case of intestacy, s. 21 provides that a claim against the personal representative for recovery of a share in the estate, insofar as the interest is an interest in possession, will be time-barred after the expiry of 12 years counting from the end of the year after the intestate's death: Halsbury's Laws of England (4th ed. reissue) Vol. 28 paras. 1058 and 1063 (footnote 2). Prima facie, it does not assist Mr Alexander Wong, because the present action is not one by a beneficiary to recover his share, but by the judicial trustee as administrator of the estate to recover its assets.

54. Secondly and in any event, in the present case, the deceased passed away in 1975. Any action against TM Fok (or Kimball Wong) regarding recovery of any share in the residuary estate would therefore become time-barred by 1988 pursuant to s. 21.

55. Mr Alexander Wong, in a desperate effort to rescue this part of the Plaintiff's claim, seeks to argue that in relation to the residuary estate, the right of the Children to receive their share did not accrue until the Court of Appeal overturned the judgment of Zimmern J in 1986. Therefore, so he argues, in accordance with s. 21, the claim was not time-barred in 1992 when the writ was issued. (Of course, even under this argument, unlike the purported cause of action based on fraud, the cause of action would have become time-barred by now if the writ had not been issued in 1992 - a matter that is relevant to the Defendant's application to strike out for want of prosecution: see below.)

56. I am prepared to accept that based on cases like Re Johnson (1884) 29 Ch. D. 964, time would not begin to run against a next-of-kin when there was no "present right to receive" his share of the estate, and there was no present right to receive until the assets had been actually recovered by the administrator. That does not assist Mr Alexander Wong at all. Between 1975 when the deceased passed away and 1979 when Zimmern J rendered his (erroneous) construction of the purported power of appointment, the assets comprising the residuary estate (including the shares in Thailand - see below) were already forming part of and in the possession of the estate of the deceased. The estate was already "in possession" of the assets. There was no question of the estate or any personal representative of the estate taking any further action to recover the assets from an outside source. The reliance on Re Johnson is totally inapt. From 1975 onwards, the Children had a present right to receive their share in the residuary estate, and that is quite sufficient to dispose of Mr Alexander Wong's argument here. But in any event, as a matter of principle, I do not consider that in the present context, an erroneous determination by a lower court of the right to distribution of an estate that was subsequently corrected by a higher court, can constitute a good reason for postponing the running of the limitation period.

Section 20(1)(a) - fraud

57. However, s. 21, like s. 4(1)(a) (tort) and (2) (account) as well as s. 20(2) (trust), is subject to the provisions of s. 20(1). And s. 20(1)(a) provides for a fraud exception. That really explains why, at the eleventh hour, serious allegations of fraud were included in the draft statement of claim.

58. In the context of s. 20(1)(a), fraud or fraudulent breach of trust is limited to cases where fraud is an ingredient of the wrong, that is to say cases involving dishonesty: Armitage at pp. 260F-261A.

59. As I said, I do not consider that a proper case of fraud (in the strict sense) has been successfully pleaded or is sustainable in the latest draft. In other words, so far as limitation is concerned, s. 20(1)(a) does not assist the Plaintiff. It must follow that in the present case, ss. 4(1)(a) and (2), and 20(2) apply, and as analysed above, practically speaking, nothing done before 16 March 1986 should matter. (As analysed above, s. 21 does not apply in any event.)

Section 26 - "concealed fraud"

60. In yet another desperate attempt to rescue this part of the Plaintiff's claim, Mr Alexander Wong seeks to pray in aid s. 26 of the Ordinance, i.e. "concealed fraud", based on cases like Tito v Waddell (No. 2) [1977] 3 All ER 129, 244. That case was based on the now replaced s. 26(b) of the Limitation Act 1939, whereas the present s. 26 of our Ordinance is based on s. 32 of the Limitation Act 1980. However, Mr Alexander Wong argues that at the material time, the old s. 26 of our Ordinance (which was replaced by the present s. 26 in 1991) was the applicable provision, and therefore it is the old s. 26 which should be looked at.

61. Regardless of the correctness of Mr Alexander Wong's argument in relation to which section one should look at, and regardless of whether "concealed fraud" needs to be pleaded in the statement of claim (or may be pleaded in the reply after the limitation defence has been raised in the defence), the short and complete answer to counsel's argument is that no evidence whatsoever has been put forward by Cynthia Fok or her siblings of their having been kept in the dark for any material period of time as a result of any alleged concealment. So far as the material that has been presented before the court is concerned, the Children were fully aware of the matters now being complained of for a long long time. In fact according to Cynthia Fok herself, in as early as 1986, she had already commenced an action (Miscellaneous Proceedings No. 1673 of 1986) against TM Fok's estate, and a statement of claim was indeed settled by counsel. But the writ was never served. Counsel's argument based on concealed fraud or deliberate concealment does not even get off the evidential ground.

Section 20(1)(b) - constructive trust

62. Next, Mr Alexander Wong seeks to rely on s. 20(1)(b), already extracted above, to rescue the claim. He argues that given the Court of Appeal's reversal of Zimmern J's order, TM Fok or his estate held the money distributed to him as constructive trustee. In other words, this is an action to recover from the constructive trustee the money wrongly distributed to him and converted to his use, within the meaning of s. 20(1)(b). It should be remembered that according to paragraph 7, TM Fok is only said to have pocketed $494,316.66 personally; the rest of the residuary estate was distributed to others. In other words, at best, Mr Alexander Wong's argument is only valid in respect of this sum of $494,316.66.

63. But even in relation to this relatively small sum, Mr Alexander Wong's argument is hopeless for the simple reason that constructive trust is never pleaded in the latest draft.

Shares in Thailand company

64. I now revert to the rest of the latest draft statement of claim. Paragraphs 8 to 19(1)-(3) of the latest draft plead a claim in relation to the deceased's shareholding in a company in Thailand. To cut a long story short, the Plaintiff's complaint is that the shares were fraudulently transferred by the deceased's estate's nominee and trustee (SK Fok, the son of Fok Yan Nung) to his own name, which were then mortgaged to a bank for money used by SK Fok. This was discovered by TM Fok who then in his capacity as executor of the deceased entered into a deed of undertaking and indemnity with SK Fok on 17 February 1981, providing for the repayment of the proceeds of sale of the shares (which sale was to be conducted by SK Fok himself) to the estate by instalments, in return for TM Fok's not taking immediate action for recovery against SK Fok. However, no repayment was made, and in paragraph 19 the following is pleaded:

"19. In the premises, TM Fok and the Defendant were guilty of wilful default and/or reckless or negligent misconduct in their duties in administering the estate of CM Fok.

PARTICULARS

(1) Allowing SK Fok to continue to exercise control and custody over the shares in the Thailand company, notwithstanding full knowledge of his breach of trust;

(2) Sanctioning the sale of 205,920 shares by SK Fok and allowing him to receive the proceeds of the sale, notwithstanding full knowledge of his breach of trust;

(3) Failing to take any action whatsoever against SK Fok or to recover the said shares or the proceeds or any part thereof."

65. It should be noted that paragraph 19 does not plead any fraud. "Wilful default" or "recklessness" is not a plea of fraud, as has been explained by Millett LJ in Armitage in the passage extracted above (see also pp. 250H-251D of his lordship's judgment in that case).

66. Insofar as this part of the case is based on tort, trust or account as explained above, the claim was long time-barred prior to the commencement of action in 1992. Insofar as the Plaintiff's claim is one falling within s. 21 of the Limitation Ordinance, it had also become time-barred by the time the writ was issued in 1992.

67. Earlier on, in paragraph 10, fraud is pleaded in relation to a transfer of the shares from one set of nominees to a second set after the death of the deceased. Paragraph 10 reads as follows:-

"Either SK Fok and/or TM Fok had fraudulently making use of the Powers of Attorney and transfer forms given by the following nominees and deposited with and/or in the custody of him transferred their nominee shares from them to the following transferees.

Transferor	Transferee
Fok Shiu Kong	Fok Cho Moon
Fok Sew Ki (Fok Shiu Kee)	Sewlong Sae Wong (Wong Sui Loong)
Fok Sew Chieng (Fok Shiu Cheung)	Fok Sew Yew (Fok Cho Yue)
Fok Yin Hee	Jinkong Sae Kwan (Kwan Chin Tong)
	Yenghong Saw Fung (Fung Ying Hung)
	Kompor Sae Wong (Kimball Wong)
	Yee Lam Sae Low (Lo Yu Lam)
	Kwong Wai Sae Lee (Lee Wong Wai)
Cynthia Fok Lee	Yenghong Sae Fung (Fung Ying Hung)
	Yee Lam Sae Low (Lo Yu Lam)
	Tadseng Sae Lai (Lai Tat Shing)"

68. Everything I said above in relation to pleading fraud applies with equal force to paragraph 10. It is a hopeless plea. It is also hopelessly confusing grammatically and in meaning. Likewise, it is wholly unsustainable in terms of substance. For it is clear, even from reading the latest draft statement of claim itself, that the alleged fraudulent transfer of the shares from the first set of nominees to the second set (pleaded in paragraph 10) did not cause the estate any loss, because the second set of nominees did nothing to cause the estate any loss. None of these nominees denied their status as nominees or trustees. Furthermore, although it was they (the second set of nominees) who eventually transferred their shares in favour of SK Fok, no allegation of fraud was alleged against this second set of nominees (paragraph 11A). Fraud was only alleged against SK Fok (but not TM Fok) in relation to this second transfer (paragraph 12).

69. Indeed, no relief is sought in relation to the fraud alleged in paragraph 10, insofar as it constitutes an allegation of fraud against TM Fok.

Miscellaneous complaints

70. Next, several miscellaneous items of complaint are strangely pleaded as particulars under paragraph 19 of the latest draft, i.e. particulars (4) to (6). They relate to certain land owned by the deceased, the repayment of a debt in favour of a Japanese creditor and the mortgage of certain land belonging to the lawful widow of the deceased. Without burdening this judgment with further details, all that I would like to say is that insofar as they are intended to constitute complaints against TM Fok (or Kimball Wong), they are most confusing if not unintelligible. In any event, from the limitation point of view, whatever the complaints are meant to be, they must have become time-barred well before the commencement of proceedings in 1992.

71. Paragraph 38 of the draft statement of claim contains bare allegations of fraud and wilful default - "by reason of the matters aforesaid". No particulars whatsoever are supplied under paragraph 38. Likewise, wilful default and fraud are pleaded in paragraph (2) of the prayer for relief. For the reasons set out above, insofar as pleading fraud is concerned, they are all objectionable and hopeless pleas.

Summary

72. This ends my survey of the latest draft statement of claim and the relevant limitation periods. In summary, so far as the allegations of fraud contained in the latest draft are concerned, they are wholly objectionable, unsustainable and hopeless. No statement of claim containing these allegations should be allowed to be filed out of time by the Plaintiff. Put another way, this part of the Plaintiff's claim, insofar as it is covered by the general endorsement, must be struck out. Secondly, all the other causes of action relied on in the latest draft, with the exception of the complaints based on tort, trust and/or account against Kimball Wong arising after the Court of Appeal judgment in March 1986, had become time-barred by the time the writ was issued in 1992. In other words, no statement of claim that the Plaintiff may be allowed to file out of time (if any) may be allowed to contain these claims, subject to the above exception. Put another way, insofar as the general endorsement contains these claims, it should be struck out.

Application to strike out

73. I shall now move on to consider the Defendant's application to strike out based on want of prosecution, abuse of process and laches. Some preliminary remarks are required. I need to consider the Defendant's application to strike out for two reasons. First, in case I am wrong with my determination relating to the viability of the various pleas of fraud, or the expiry of the limitation period(s) relating to the various pleaded causes of action (apart from fraud) prior to the commencement of action in 1992, I need to consider the Defendant's alternative argument based on want of prosecution, abuse of process and laches. The other side of the same coin is that the Defendant's argument may, in any event, provide an additional reason for my rejecting the Plaintiff's case based on fraud and these other causes of action. Secondly, I need to deal with the Defendant's argument based on want of the prosecution, abuse of process and laches because as I analysed above, the complaints based on tort, trust and/or account against Kimball Wong arising after March 1986 were not time-barred in 1992 when the action was commenced.

74. Want of prosecution is referred to in the Defendant's summons to strike out. Abuse of process is not. Nor is laches. However, no objection was taken by the Plaintiff in relation to these further arguments based on abuse of process and laches, and indeed both counsel addressed me thoroughly on the relevant principles and their application to the facts of the present case. In those circumstances, there is no question of my not entertaining these additional grounds to strike out.

Want of prosecution

75. The law on striking out based on want of prosecution is reasonably well established. The relevant principles may be conveniently found in Hong Kong Civil Procedure 2002 para. 25/L/1 et seq. A very convenient summary of these principles may also be found in the judgment of Poon DJ in Formative Way Co. Ltd v Lam Soon Warehouse Co. Ltd, HCA No. 5312/1991 (22 October 2001) paragraphs 16-33. I will not burden this judgment further by reciting these well-established principles here.

Inordinate delay

76. I have no doubt on the material before me, including the chronology of events in the present case, that this is a case of inordinate delay. The writ was issued in 1992. It was not served until 1994. As has been made clear by Ribeiro JA (as he then was) in Hymer v Mass Transit Railway Corporation [2000] 2 HKLRD 589, 606I-J, the inactivity pending the service of a writ can be taken into account when assessing the overall delay in the event that inordinate and inexcusable delay subsequently ensues, although the writ remains valid for service for such a period under the Rules of the High Court. See also Roebuck v Mungovin [1994] 2 AC 224, 234. The significance of this will emerge in due course.

77. After service of the writ in 1994, and after receiving the acknowledgement of service from Kimball Wong indicating her intention to defend the action, nothing was done by the then Plaintiffs. No statement of claim was filed, or was sought to be filed until July 2000 (by the judicial trustee). It is true that the judicial trustee was appointed by the court in 1997, and the court authorized the judicial trustee to carry on with the present action. But no action was taken by the judicial trustee for almost 3 years, in relation to the filing of a statement of claim (out of time).

78. The delay involved in the present case is inordinate.

Inexcusable delay

79. Likewise, I am of the view that the delay involved is inexcusable. Both the judicial trustee and Cynthia Fok have filed affirmations to explain to the court the reasons for the delay. In a nutshell, Cynthia Fok could not find a single counsel who was prepared to plead and put forward on her behalf a case that accorded with her subjective understanding of the estate's claim or the Children's claim against TM Fok and Kimball Wong. According to the evidence, no less than 20 counsel, all eminent - many of them silks (or have since taken silk), have been retained by Cynthia Fok and her siblings at one stage or another. Both local counsel as well as London silks were involved. Some of the counsel involved have since become most prominent members of the Judiciary. Yet according to Cynthia Fok's own affirmation (as supplemented by counsel's explanation from the bar table), none of them agreed to put forward her case in the way she wanted it to be done. Because of disagreements between clients and counsel (and I should add, solicitors - and there were quite a number of them involved throughout the years), as well as arguments amongst the Children themselves, no statement of claim could be finalized until 2000.

80. The situation did not improve after the appointment of the judicial trustee, who however never sought the court's direction in relation to his difficulties. The judicial trustee, being personally removed from the facts involved, was in fact in a worse position than Cynthia Fok and her siblings, because he needed, according to his affirmation, to obtain instructions from these children of the deceased (which was, according to him, no easy task), in order to finalize the statement of claim, and proceed with the present action.

81. The draft exhibited to the judicial trustee's supporting affirmation for leave to file a statement of claim out of time was settled by counsel and finalized eventually in 2000. The Plaintiff's present counsel was instructed subsequently, and as noted above, he came up with an amended draft statement of claim literately minutes before the scheduled hearing before Yam J. Except the bare references to fraud contained in paragraph 38 and prayer (2) of the draft (- for which the present counsel must also bear "successive" responsibility), all other allegations of fraud were penned by the present counsel.

82. I consider all this as no excuse or justification for the delay. In my judgment, the internal disagreements between lawyers and clients (or amongst the Children) cannot, on the facts, constitute an excuse for the inordinate delay. The matter has to be viewed from the angle of the Defendant, or at least objectively: Ho Hip Lik v Kwan Man Ho [1996] 2 HKLR 184, 186A.

Bar Code paragraph 113

83. Incidentally, if the latest draft statement of claim, which apparently received Cynthia Fok's blessing and approval, does reflect the type of case (i.e. a case of fraud) that she unsuccessfully wanted her many previous counsel to plead and lend their names to, I can well understand why (at least until recently) no counsel worth his salt agreed to do so (if I may say so with the greatest respect). The repeated refusal of counsel and solicitors to put forward Cynthia Fok's intended case on her behalf speaks volumes of the utter lack of merits of her intended case (in relation to fraud).

84. I would venture to add that the general trust and confidence that members of the Bar enjoy from the Bench in respect of their work in court are, to a not insignificant extent, established and maintained by their vigorous adherence to salutary rules of conduct, such as the one that prohibits counsel from putting forward a case of fraud (and the like) without proper foundation: see Code of Conduct of the Bar, para. 113¹; any erosion of these rules in practice, particularly by senior and experienced members of the Bar, would not only be regrettable but would also threaten to undermine the Bench's general trust and confidence in the professional integrity of those appearing before it, which is of great importance to the proper and efficient administration of justice. Rules of conduct must take precedence over pressure from lay clients to which counsel must not succumb; they must not allow themselves to degenerate into their clients' mere mouthpieces. Indeed rules of conduct like paragraph 113 are designed to protect counsel from unjustified demands made of them by lay clients.

85. All this is really trite. That I find it necessary to make the above observations in this case is of itself disturbing.

Prejudice

86. Returning to the question of delay, the next question is prejudice. Here, not only must the Defendant show prejudice, she must also demonstrate a causal link between the delay complained of and the prejudice. Prejudice caused by pre-writ delay, no matter how serious, is of itself insufficient. However, it may be taken into account if post-writ delay did cause some further or other prejudice to the defendant: see Birkett v James [1978] AC 297, 323G-H.

87. The prejudice in the present context basically relates to the risk that it is not possible, because of the delay, to have a fair trial of the issues; further, the delay is such as is likely to cause or to have caused serious prejudice to the Defendant.

88. So far as prejudice caused by pre-writ delay is concerned, one must remember that most of the persons concerned died before 1992. So for instance, Fok Yan Nung died in 1982. TM Fok died in 1983. Moreover, so far as the shares in the Thailand company are concerned, SK Fok died in 1990.

89. But perhaps more importantly, in terms of post-writ delay, Kimball Wong, who according to the available evidence, should have been privy to many of the matters pertaining to the administration of the deceased's estate whilst her husband was still alive, and who was herself responsible for its administration between 1983 and 1987, passed away in 1995. If the writ had been served promptly after its issue and the statement of claim filed within time accordingly (which is relevant to post-writ delay as has been explained above), Kimball Wong should have had a decent opportunity to respond to the various allegations that are now being belatedly made against her late husband and herself. It may be that even if the action had been prosecuted expeditiously, there would not have been a trial of the action prior to 1995 when Kimball Wong died. But at the very least, Kimball Wong would have been in a good position to give all the necessary instructions and statements to her solicitors in defence of the (then) Plaintiffs' claim, and if that had been the case, her daughter, Eugina Fok, who does not, according to the evidence available, know anything about her parents' dealings with the estate, would not have been in the same position as she now finds herself to be in, i.e. being totally in the dark in relation to the complaints now belatedly made by the Plaintiff.

90. In my judgment, this is a very serious prejudice. I am tempted to say that this alone is sufficient to satisfy the need to establish prejudice and a causal link between delay and prejudice. But of course, this is not the only prejudice that the Defendant can identify. The lapse of time must have had a great and serious impact on the recollection of all potential witnesses, such as TM Fok's and Kimball Wong's former legal advisers, including Albert Ho and his colleagues in C Y Kwan & Co. at the time, as well as those in Baker & McKenzie who had the opportunity of advising Kimball Wong afterwards - assuming that these potential witnesses can be located now. All this must be viewed in the context that the complaints in question relate to matters that happened almost 20 years ago if not longer.

91. Of course, once prejudice resulting from post-writ delay can be established, the Defendant can pray in aid the prejudice flowing from the pre-writ delay as well. I have already mentioned the demise of people like SK Fok, the alleged culprit in relation to the shares in the Thailand company. He passed away in 1990, whereas the complaint relating to the shares can be traced to the deed of undertaking and indemnity that was executed back in 1981. It should also be noted that between 1987 and 1997, the four Children were themselves administrators of the estate, yet they took no action against SK Fok when SK Fok was still alive. Ten years after his demise, the surviving Children, through the judicial trustee, first sought to lay the blame on TM Fok in respect of the deed and his alleged inaction, as well as Kimball Wong (in respect of her period of executorship). And 3 years afterwards (i.e. 20 years after the death of TM Fok, 13 years after the death of SK Fok and 8 years after the death of Kimball Wong), serious allegations of fraud were added against all these deceased persons. In my judgment, all this is totally unfair, and viewed in the context of prejudice, seriously prejudices the Defendant.

92. I wholly disagree with the suggestion made by counsel in his written submission that this is a typical Chancery case that can be decided by reference to documents. I need only refer to the various serious allegations of fraud and factual issues to demonstrate the nonsensical nature of this submission.

Expiry of limitation periods

93. The next question is the often-vexed question of limitation. It is of course trite that generally speaking, unless the cause of action has by the time of application to strike out become time-barred (but for the commencement of the action that is being sought to be struck out), there is no point in striking out the action, because the plaintiff can always commence a new action on the following day.

94. I have already analysed above why in my judgment, subject to one exception, all causes of action relied on in the latest draft are either unsustainable (i.e. those fraud pleas) or were already time-barred when the writ was issued. Moreover, in relation to the only exception, i.e. those complaints based on tort, trust and/or account against Kimball Wong in respect of matters arising after the Court of Appeal judgment in 1986, they have also become time-barred by now (but for the issue of the present action). In those circumstances, so far as these complaints are concerned, limitation period does not provide an answer to the Defendant's application to strike out based on want of prosecution.

95. For all these reasons, in my judgment, as an additional or (as the case may be) alternative reason for striking out the general endorsement, and dismissing the present action, the Plaintiff is guilty of inordinate and inexcusable delay in the prosecution of the present action, resulting in serious prejudice to the Defendant, and in the exercise of my discretion, I would also order the striking out of the general endorsement, and in particular the Plaintiff's complaints against Kimball Wong following the Court of Appeal judgment in 1986. In my judgment, this is a plainly bad case of want of prosecution.

Strike-out even if limitation periods had not expired

96. For the sake of completeness, I should go one step further. Even if I am wrong above and the pleas of fraud are sustainable, and the other causes of action are still not time-barred even up to now, I would still be of the view that this is a case for strike out for want of prosecution. The non-expiry of the limitation period is not an absolute bar to a strike out: Barclays Bank Plc v Miller [1990] 1 WLR 346; Hicks v Newman, Hoffman J (6 July 1986), referred to in Barclays Bank on p. 348C-G; Wright v Morris, Millett J (25 October 1988), also referred to in Barclays Bank on pp. 348H-349C, just to cite a few authorities. The question depends on whether there is anything to be gained by dismissing the current action now. This must depend on the facts. For instance, if the question of whether the limitation period has expired is a serious and difficult one, something may be gained by dismissing the action now, leaving the plaintiff, if he so chooses, to commence a fresh action, and until he does so and until the defendant applies to strike out the new action or to have the matter tried some other way based on the limitation defence, the court need not expend valuable court time and resources in resolving the question of limitation: see Barclays Bank at p. 348A-C (per Staughton LJ).

97. Another possible benefit is where it is not certain that the plaintiff will commence a new action if his current one is dismissed. For instance, if he is on legal aid, or otherwise lacks means to commence a new action, striking out his current action may be an advantage to the defendant: see Hicks, supra (Barclays Bank on p. 348F-G).

98. The benefit, if any, to be gained by the court or by the defendant, to strike out the current action prior to the expiry of the limitation period, must depend on the facts, and cannot be exhaustively stated.

99. Returning to the facts of the present case, assuming that the limitation period(s) involved in the Plaintiff's claims have not expired by now, I am of the view that nonetheless the action should be struck out, given the inordinate and inexcusable delay, and given the prejudice caused (and to be caused) to the Defendant. The benefit to be gained by the Defendant is this. The administration of the estate is now in the hands of the judicial trustee appointed by the court pursuant to Part VI of the Trustee Ordinance (Cap. 29). He is subject to the control and supervision of the court as an officer of the court: s. 63(3). The court may, either on request or without request, give to him any general or special directions in regard to the trust (estate) or the administration of the trust (estate): s. 63(4). See generally Halsbury's Laws of Hong Kong Vol. 26 para. [400.148].

100. On the peculiar facts and circumstances of the present case, if the action is struck out, and if the judicial trustee is required by the Children to commence a fresh action against the Defendant, in my judgment, there are very good reasons to think that he should (and thus it is likely that he would) seek the specific direction of the court for sanctioning the intended (new) action. I totally reject Mr Alexander Wong's argument that if the judicial trustee is indemnified (as to costs) by any interested party to commence the new action, he can commence the second action without reference to the court. As I said, according to law, he is under the control and supervision of the court as the court's officer in the administration of the estate. What is involved is not only the private and personal interest of the Children. What is also involved is first, the due, proper and prompt administration of the estate in question (for which the judicial trustee was appointed in the first place); and secondly and more importantly, the public policy that valuable court time and resources should not be wasted, and the process of the court abused, by litigants - least of all a judicial trustee - commencing or maintaining frivolous or vexatious actions against others.

101. And if the judicial trustee does decide to seek such a direction from the court, with a view to persuading the court to sanction the new action, he would most likely require a good counsel's opinion (probably an experienced silk's opinion) on the merits of the proposed action in support of his application for sanction. Based on what I know about this case, and given the repeated refusal by numerous prominent and eminent counsel both local and London to run the Children's case before, I doubt very much whether he can obtain such a good counsel's opinion. And certainly, I doubt very much whether the court hearing his application would sanction the second action. But in any event, that is not precisely the point here: the real point here is that the very existence of a real possibility that the judicial trustee, for his own protection if not for anything else, may find it necessary to seek and obtain the court's sanction before commencing a second action must be considered as a benefit to the Defendant if the present action is struck out notwithstanding (ex hypothesi) the non-expiry of the limitation period. The situation is akin to the one about legal aid referred to by Hoffman J (as he then was) in Hicks, supra.

102. As regards Mr Alexander Wong's argument that apart from the judicial trustee, the surviving Children may bring a fresh action against the Defendant if the present action is struck out, whilst I cannot exclude such a possibility given the characters involved in the present case, the matter should be looked at from the opposite angle. The benefit to the Defendant if the present action is struck out notwithstanding the (assumed) non-expiry of limitation period up to now is that the possibility of the surviving Children bringing a fresh action is just a possibility. In other words, there is equally a possibility that no such action will be brought by these elderly persons. That (i.e. the chance) of itself is some benefit that I can take into account. Moreover, any such action will not be as straightforward as an action brought by the judicial trustee, because the administration of the estate is now vested by the court in the judicial trustee's hands. For one, the Children would need to join the judicial trustee as a co-defendant in order to sue the Defendant. Secondly, the refusal (ex hypothesi) of the judicial trustee to commence a fresh action would constitute additional ammunition to the Defendant in her defence of the new action. This again must be a benefit to the Defendant as well.

Abuse of process

103. I now turn to the argument based on abuse of process. Regardless of whether this is regarded as falling within the contumelious default limb for striking out, or as a separate ground for striking out based on abuse of process, there is more than sufficient authority to the effect that if a plaintiff has no intention to bring to a conclusion an action commenced by him, the commencement or the continuation of the action amounts to an abuse of process, and the action is liable to be struck out notwithstanding the absence of prejudice or the non-expiry of the limitation period. Delay is very often relevant here because it is good evidence of a lack of intention to bring to a conclusion the litigation. See for instance, Grovit v Doctor [1997] 1 WLR 640; Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426; Advaita Enterprises v Seafast Marine Transport Inc, HCCL No. 241/1995 Chung J (24 November 2001) where the learned judge explained the lack of an intention to bring to a conclusion a piece of litigation on the part of the plaintiff as meaning the lack of a "definite" intention to do so, as is in the case of the issue of a so-called "protective writ" (which was the case in Arbuthnot).

104. In my judgment, the present case is a worse case than the case where a plaintiff commences or continues a piece of litigation with no intention, or no definite intention, to bring it to a conclusion. This is a case where a plaintiff commences an action when he does not know how to formulate his case. In other words, he sues before he knows what to sue, or before he can make up his mind as to the subject matter of his complaint. In this regard, the plaintiff must be equated with his counsel and solicitors. In other words, in the present case, the four Children commenced the present action before they and their legal advisers were ad idem and thus knew what they wanted to sue about, and of course it is the function of a statement of claim to set out precisely what a plaintiff wishes to sue and ask the court to grant him relief about.

105. Moreover, one must not forget that one only needs to resort to abuse of process here if the limitation period has not expired even up to now. In other words, based on that assumption, there is really no rush to commence the action, as the limitation period has not expired. There is therefore no justification for commencing the action before knowing what one really wants to complain about (which of course has to be fully reflected in a statement of claim). The plaintiff can always wait, as the limitation period has not and will not expire (ex hypothesi, such as in a case based on fraud), until he and his legal advisers can agree on a definite version of the statement of claim, or (failing that) until the plaintiff prepares his own statement of claim acting in person.

106. That, shortly put, is why in my judgment, this is a worse and therefore an a fortiori case, when compared with the typical cases for strike out based on abuse of process.

107. This is therefore an additional or (as the case may be) alternative reason for striking out the present action.

Laches

108. Finally, laches is also relied on by Mr Horace Wong (counsel for the Defendant - who has argued the Defendant's case, if I may say so with respect, with competence and restraint) as an additional reason supporting the strike out application. The general principles may be conveniently found in Spry, Equitable Remedies (6th ed.) 431 to 438. Whilst usually laches is relied on as a substantive defence at trial, there is authority to the effect that it may be relied on in support of a strike out application if the facts are clear: The estate of Yang Sen-hui (deceased) v Pao Yuen Tung Hsing Yieh Co. Ltd [1983] HKLR 124, see the majority judgment of Kempster J (as he then was) on pp. 145G-147D.

109. The two essential requirements here are delay and resulting prejudice. I do not wish to lengthen this judgment unnecessarily by dwelling on these points. Delay and prejudice have been canvassed in some detail above. The same points may be made in the present context. For the reason of laches as well, I am of the view that first, insofar as the want of prosecution ground is concerned, this plugs the hole created by the non-expiry of any limitation period (which is, as discussed above, in any event not fatal), and secondly, it constitutes a ground of itself to strike out any claim that is not statute-barred.

Order

110. In conclusion, I dismiss the Plaintiff's application to file a statement of claim out of time. I order that the writ of summons be struck out, and the action be dismissed.

Indemnity costs

111. As regards costs, I make a cost order nisi that the costs of the two summonses in question be paid by the Plaintiff to the Defendant forthwith, 50% on a full indemnity basis and the remaining 50% on a party and party basis it must be apparent from the above judgment that I consider that this is a really bad case in relation to the various hopeless pleas of fraud, and also when a judicial trustee, an officer of this court, is involved without any updated direction from this court (after the original directions given by Pang J back in 1997 regarding the continuation of the present action), such costs to be taxed if not agreed. As regards whatever costs that are left of this action, I also order that they be paid by the Plaintiff to the Defendant but only on a party and party basis, subject to taxation as well. Unless either party applies to vary this order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

Directions to judicial trustee

112. As foreshadowed by my above discussion relating to the role of the judicial trustee, and in the exercise of the court's jurisdiction to control and supervise the judicial trustee as an officer of this court pursuant to the provisions in s. 63(3) and (4), I give the following directions (which can be made without any request), subject to any further or other directions of the court:

(1) The judicial trustee shall seek and obtain the sanction of the court if he wishes to lodge an appeal from this judgment, and if necessary, he shall apply for an extension of time to appeal pending the obtaining of the sanction of the court;

(2) The judicial trustee shall obtain the sanction of the court before he can (if he so wishes) commence a fresh action against the Defendant based on the same or similar facts;

(3) The above direction shall take effect despite the offer (if any) of an indemnity for costs or otherwise by anybody regarding the lodging of the appeal and/or the commencement of a fresh action.

113. In so giving the directions, I wish to make two things clear: First, the directions are not intended or designed to take away or otherwise affect the estate's general right to appeal against this judgment; rather they are directed at the control and supervision of the judicial trustee in the proper performance of his duty in the administration of the estate as an officer of the court.

114. Secondly, in my above consideration regarding whether I should exercise the court's discretion to strike out the present action for want of prosecution on the assumption that the limitation periods have not expired by now, and in particular in my above deliberation regarding whether any benefit would be gained by so striking out the present action, including the possibility that the judicial trustee may for good reasons wish to apply for the court's sanction for the commencement of a fresh action, I have not taken into account the above directions that I have decided to give. Instead I worked on the assumption that no directions would be given by the court of its own motion, but that there is a real possibility that for his own good or otherwise, the judicial trustee would on his own initiative seek the court's direction and sanction.

115. I make the above clear to avoid any possible argument that I based myself on a self-manufactured (as it were) reason to support my decision to strike out.

Judgment handed down in court

116. The seriousness of the matters raised in these applications and the importance of some of the matters discussed in this judgment, particularly in relation to the pleading of fraud, convince me that I should adjourn the matter to open court for handing down this judgment, with a view to achieving a wider circulation of this judgment and thus a better awareness of what is said in the judgment.

117. I regret that I find it necessary to use strong words relating to what has happened in the present case. They were said with due respect to those concerned.

1 "A barrister instructed to settle a pleading is under responsibilities to the Court as well as to his client. He may not make any allegation unsupported by his instructions. He may not allege fraud unless:

(a) he has clear instructions to plead fraud, and

(b) he has before him reasonably credible material which, as it stands, establishes a prima facie case of fraud. "