KI PING KI PAUL v. WONG ON YEE AND ANOTHER

CAMP 57/2018

[2018] HKCA 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 57 OF 2018

(ON AN INTENDED APPEAL FROM DCCJ NO. 5787 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.  The plaintiff by way of an ex-parte application filed on 28 December 2017 sought and was granted an injunction in the District Court by Deputy District Judge Simon Ho to restrain the defendants from disposing his personal properties inside 1901 Sun Tung House, Yu Tung Court, Tung Chung (the ‘property’). The plaintiff applied to continue the injunction which was opposed by the defendants who also sought to discharge the injunction on the ground of material non-disclosure by the plaintiff.

2.  On 5 January 2018, after hearing the parties, Deputy District Judge C Chow discharged the injunction by reason of, amongst other things, material non-disclosure.

3.  On 5 February 2018, the plaintiff issued a summons for leave to appeal against the decision of 5 January 2018. The Judge refused the application on 20 April 2018.  The plaintiff now renews the application before us.  We will deal with this application on paper.

4.  The Judge treated the plaintiff’s application as an application for extension of time to apply for leave to appeal. There was a short delay of two weeks and she accepted that as the plaintiff acted in person he might not be aware that the time to apply for leave began to run from the date of the oral decision of 5 January 2018 although the written decision was handed down later.  She, however, refused the application on the merits of the intended appeal.

5.  We will also focus on the merits of the intended appeal.

6.  The plaintiff’s application for injunction was supported by the statement of claim in the following terms :

‘ The Plaintiff’s claim is for Family Agreement Disputes.

My brother, Ki Ping Fai, passed away in 2012. Before he passed away, all the 5 siblings were there to discuss the distribution of share of a property located at 1901 Sun Tung House, Yu Tung Court, Tung Chung.  However, this Agreement was denied by Ki Ping Fai’s wife Wong On Yee.  She is claiming the total ownership of the property.  I had been taking care of the said property for 19 years.  Now, today, she is trying to evict me with no court order.  She also changed the lock without court order.’

7.  He also filed an affirmation stating :

‘ The Defendants are demanding me to evict on the property located at 1901 Sun Tung House, Yu Tung Court, Tung Chung with no court order. She also illegally changed my lock with no court order.’

8.  The affirmation exhibited a notice dated 28 December 2017 from the owner of the property requiring the plaintiff to remove all his personal articles from the property.

9.  What the plaintiff had not disclosed in his application for injunction was that the defendants are the administratrixes of the estate of Ki Ping Fai (‘Fai’) who was the owner of the property, there were discussions between the defendants and the plaintiff about the plaintiff buying the property from them and the reason why the defendants required the plaintiff to remove his things in the property.

10.  By way of background, the property was originally purchased by the parents of Fai and the plaintiff as joint tenants in 1997.  The father died in 1998 and the mother became the sole owner of the property.  She died in 2006 and letters of administration were issued in 2006 and granted to Fai.  The parents had five sons and daughters.  They are 1^st son Fai, 2^nd son Wah, 3^rd son Paul (‘the plaintiff’), 4^th daughter Teresa and 5^th daughter Yin.  By way of a Deed of Family Arrangement made between the siblings and a Deed of Assent both dated February 2008, Fai became the registered owner of the property.  In 2012, Fai passed away and in early 2013, the defendants were granted letters of administration in the estate of Fai.

11.  Between November and December 2017, emails were exchanged between the plaintiff and the 1^st defendant.  These emails recorded the proposal and intention of the plaintiff to buy the property from the defendants for a net sum of HK$1.6 million.

12.  In discharging the injunction the Judge held that the discussions between the plaintiff and the 1^st defendant regarding his intention to buy the property from them was ‘unquestionably material’ to the Court for it to understand the context against which the rights of the parties under the distribution agreement relied on by the plaintiff were to be assessed and also to consider the nature of the claim the plaintiff has over the property.  The devolution of the property’s legal ownership and the circumstances leading to the distribution agreement were equally important.  These were not disclosed by the plaintiff.  He had also failed to mention that the property was only used by him as storage; there would be different considerations depending on whether the plaintiff was living at the property or not.  While he had only exhibited one warning notice from the defendants, it was clear that there was at least one more previous warning notice given to him to remove his goods in the property.  The Judge found the failure to disclose was deliberate.  He was discussing the purchase of the property whilst simultaneously applying to Court for an injunction.  He knew the points that the defendants would make to the Court but did not reveal them to the Court.  He gave no reason or excuse for his non-disclosure but preferred to focus on his arguments on his legal ownership of the property by showing his payments towards mortgage, rents, rates and management fees.  The Judge found that if the above were known to the judge who granted the injunction, he would not have made the injunction order as there was no urgency to justify the granting of an injunction.

13.  The Judge held there was no reasonable prospect of success of the intended appeal.  There was also no other reason why the appeal should be heard in the interest of justice.

14.  We agree with the Judge’s view on non-disclosure.  The Court imposes a high duty on the applicant of an ex-parte application to make full and frank disclosure of all material facts to the Court so as to enable the Court to exercise its discretion properly.  The applicant should raise points that are likely to be raised by the defence.  What is material is to be decided by the Court and not by the parties or their legal advisors.  The factors for the Court to consider whether to discharge an injunction based on material non-disclosure include whether the non-disclosure was innocent or deliberate, the excuse or reason for non-disclosure, the importance of the omitted facts and would the non-disclosure result in the original order not being made in the first place. 

15.  The matters relied upon by the Judge were clearly material facts which needed to be disclosed and it is not reasonably arguable that the injunction was wrongly discharged.  The grounds of appeal relied by the plaintiff are mainly on the ownership of the property and not on the issue of material non-disclosure.  The plaintiff’s contention on ownership should be left to be decided at the trial of the action.

16.  Accordingly, the application is refused.  As the application is totally without merits, we will, pursuant to Order 59 rule 2A(8), order that no party may request an oral hearing for a fresh determination of this application.

17.  The plaintiff is to pay the defendants’ costs of this application which we will summarily assess at $28,000.