鄧錦祥 v. 鄭鄧錦容

CACV 370/2019

[2020] HKCA 572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 370 OF 2019

(ON APPEAL FROM HCSD 20/2019)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 13 May 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the judgment of Deputy High Court Judge Liu given on 16 July 2019[2] dismissing his application to set aside the statutory demand dated 15 April 2019 (“the Statutory Demand”) and authorizing the respondent to present a bankruptcy petition against him. We also ordered the applicant to pay the respondent the costs of the appeal, to be taxed if not agreed.

2.  On 8 June 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  Pursuant to the directions of the Registrar of Civil Appeals, both parties had lodged written submissions on the application. 

3.  Having considered the notice of motion and the written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the materials before us.   

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  The notice of motion contained four proposed grounds of appeal as follows: 

(1)  The Court of Appeal failed to consider the following new evidence contained in the applicant’s affirmation dated 26 August 2019:

(a)   The order dated 10 October 2013 made by Deputy High Judge Leung as amended (“DHCJ Leung’s Order”);

(b)   The order in HCAP 3/2000 dated 7 November 2003 and filed on 12 November 2003 (“HCAP 3/2000 Order”); and

(c)   The Letters of Administration dated 1 December 2004 issued in HCAG 011792/2003 (“the Grant”).

(2)  The Court of Appeal failed to understand that:

(a)   By the Grant, the assets of the estate of Tang Chung Sau, deceased (“Father”) were given to the applicant and his mother (“Mother”) on 1 December 2004.  The applicant and Mother, after paying the taxes, estate duty and other expenses, were registered as the lawful owners in the Land Registry. Under the Grant, the applicant and Mother were the 承受人(recipients) of the assets of Father’s estate and were not the administrators.

(b)   Despite having knowledge of the HCAP 3/2000 Order and the Grant, the respondent proceeded with HCMP 147/2008 and CACV 185/2013, and failed to disclose that Mother was the 承受人(recipient) of Father’s estate.  This misled the court into granting DHCJ Leung’s Order when there was no factual basis to support HCMP 147/2008.  Accordingly, the costs orders that gave rise to the Statutory Demand were made without factual basis.

(c)   Pursuant to the Grant, all the assets of Father’s estate were given to the applicant and Mother.  HCSD 20/2019 and this appeal were motivated by a criminal intent to obtain property belonging to others. Legal precedents have no application given the difference in history, time, people, nature and evidence between the precedents and these proceedings. 

(3)  These proceedings concern an estate, but it is not an unresolved dispute arising out of an estate.  By the HCAP 3/2000 Order, Father’s estate was transferred to Mother for her to distribute.  By the Grant, Father’s estate was given to the applicant and Mother. Any dispute over the estate had therefore been settled. The subsequent proceedings, namely, HCMP 147/2008 and CACV 185/2013, were not based on facts.  Any loss incurred as a result of the cases had nothing to do with the applicant and should be borne by the respondent.

(4)  There is evidence to show that the respondent and her lawyer have the motive to contravene the law.  It will be unjust and have an adverse effect on the society if the applicant did not have a fair trial.

6.  The applicant repeated the above content of the notice of motion in his written submission in support of the application and the reply submission.  He also objected to the written submission lodged on behalf of the respondent, complaining that it was not signed by the respondent.  However, as the respondent is legally represented and the written submission was lodged by her solicitors, there is no need for the respondent to sign the written submission.

7.  The respondent opposed the present application on the ground that the applicant has failed to demonstrate that the intended appeal involves any issue of great general or public importance, and that the applicant’s proposed grounds of appeal have no merits and have been repeatedly rejected by the court in previous proceedings.  The respondent also made reference to rule 7 of the Hong Kong Court of Final Appeal Rules, Cap. 484A. This is, however, irrelevant because the power under rule 7 to dismiss an application for leave to appeal to the Court of Final Appeal lies with the Court of Final Appeal.

8.  For the reasons set out below, we are of the view that leave to appeal to the Court of Final Appeal should be refused.

9.  First, all the grounds of appeal put forward by the applicant are fact-sensitive and are related to the facts and circumstances leading to the Statutory Demand.  The intended appeal does not involve any question of great general or public importance.

10.  Second, the proposed grounds of appeal are unarguable.  They are premised on the applicant’s erroneous belief that the effect of the HCAP 3/2000 Order and the Grant is that he and Mother own all the assets of Father’s estate.  However, as pointed out in §6 of our judgment, the HCAP 3/2000 Order only provided that letters of administration of Father’s estate may be granted to Mother, if entitled thereto.  Further, as the Court of Appeal held in CACV 185/2013[3] and as pointed out in §26 of our judgment, the applicant and Mother were only made the administrators of Father’s estate (遺產管理人).  The HCAP 3/2000 Order and the Grant did not have the effect of conferring the beneficial interests of the assets of Father’s estate on the applicant and Mother.  The applicant’s legal interest in Father’s estate as the administrator of Father’s estate (both in his personal capacity and as the administrator of Mother’s estate) ceased upon his removal as a result of the order made on 26 August 2013 in HCMP 147/2008.  The applicant’s appeal against the order of removal was dismissed by the Court of Appeal on 23 December 2015 in CACV 185/2013.  

11.  Further and importantly, the Statutory Demand is based on costs orders which are valid and subsisting.  For the reasons we gave in §§25 and 26 of our judgment, the applicant cannot, in applying to set aside the Statutory Demand, challenge the validity of the costs order and ask the court to examine the merits of the costs orders. 

12.  Third, we also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.  Applying the rule of costs follow the event, we make an order that the applicant pays the respondent the costs of this application, to be taxed if not agreed.