NG KWOK TAI ANDREW v. NG OI CHE AND ANOTHER

FAMV Nos. 41 & 42 of 2015
(Heard together)

FAMV No. 41 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 67 OF 2014)

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AND

FAMV No. 42 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.42 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 156 OF 2014)

_______________________

_______________________

(Heard together)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ :

1.  At the conclusion of the hearing, the Appeal Committee dismissed the applications indicating that our reasons for doing so would be handed down in due course. These are our reasons.

Background

2.  These applications for leave to appeal had their origin in what appears to be a bitter and long-running family dispute, which began when the patriarch of the family passed away, giving rise to this and other litigation between the parties.[1] The two opposing camps consist, on the one hand, of his widow, who is the administratrix of his estate, (“the mother”) supported by some of their children and, on the other, of the remaining children.

3.  The applications relate to an action brought by the mother against her daughter, Stephanie Ng Oi Che (“Stephanie”), among others.[2] In that action, the mother claimed that, after his death, Stephanie had diverted funds from two bank accounts of her father and had emptied his safe deposit box without the mother’s authority.  Stephanie denied this and contended that her actions were duly authorised at a family meeting after her father’s death.  She contended that her brother, Andrew Ng Kwok Tai (“Andrew”), who was not a party, had manipulated their mother into pursuing the proceedings.

4.  The judge agreed with Stephanie and dismissed the mother’s claim.[3] The judge acceded to an application by Stephanie, pursuant to s.52A(2) of the High Court Ordinance (Cap.4) and O. 62 r.6A of the Rules of the High Court, to join Andrew as a party to the proceedings for the purpose of costs and subsequently made an order that he be jointly and severally liable with the mother for the costs of the action payable to Stephanie and a family company which was the 3^rd defendant in the proceedings.[4]  The judge later made an order that those costs should be paid by the mother on an indemnity basis.[5]

5.  The mother appealed against the judgment dismissing her action in CACV 67/2014 (i.e. the Substantive Judgment), which appeal included an appeal against the award of indemnity costs against the mother.  Separately, Andrew commenced an appeal in CACV 156/2014 against the judgment that he be jointly and severally liable for the costs of the action (i.e. the Costs Liability Decision).

6.  The mother agreed to the dismissal of her appeal (in CACV 67/2014) by consent.  Shortly after this, Andrew applied by summons under O.15 r.6(2)(b)(ii) of the Rules of the High Court for an order that he be added as an interested party to the underlying action (HCA 522/2008) and that he be permitted to file a notice of appeal in CACV 67/2014 in order to challenge the judgment dismissing the mother’s action, which had given rise to his liability for costs.

7.  The Court of Appeal dismissed Andrew’s joinder summons, holding that O.15 r.6(2)(b)(ii) required a substantive legal interest in the rights and remedies claimed or in the matters in the action requiring determination and adjudication and that a liability under s.52A(2) for costs was not such an interest. The Court of Appeal went on to consider the proposed grounds of appeal against the Substantive Judgment and concluded that they would have dismissed the appeal in any event, even if he had been joined as an interested party. Finally, the Court of Appeal dismissed Andrew’s independent appeal against the Costs Liability Judgment (holding him jointly and severally liable for the costs of the action).

Leave to appeal granted by Court of Appeal

8.  On 12 August 2015, the Court of Appeal gave judgment (“the CA Leave Judgment”) on notices of motion filed by Andrew in both CACV 67/2014 and CACV 156/2014, dismissing those applications save in one respect, namely question 1(a) of the notice of motion in CACV 67/2014 (“Question 1(a)”) revised as follows:

“Whether a person who is liable for costs pursuant to an order made under s.52A(2)(b) of the High Court Ordinance (Cap.4) is a person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter for the purposes of O.15, r.6(2)(b) of the Rules of the High Court.”

Renewed application by Andrew

9.  Notwithstanding the conditional leave to appeal granted by the Court of Appeal, by notices of motion in both appeals, Andrew applied for leave to appeal in respect of additional questions said to be of great general or public importance and also on the “or otherwise” limb of section 22(1)(b) of the Court’s Ordinance.

10.  In response to a direction by the Registrar pointing out to the solicitors acting for Andrew that the applications for leave to appeal amounted to fresh applications for leave and that the Appeal Committee had full discretionary powers to deal with the applications as a whole, including power to reject the entirety of the applications,[6] the solicitors confirmed that Andrew wished to proceed with the two applications for leave to appeal.

11.  Accordingly, the disposition of the notices of motion will involve the Appeal Committee in determining whether to grant leave to appeal in respect of the question of law for which the Court of Appeal granted leave to appeal and, by proceeding with the applications before us, Andrew has assumed the risk that no leave to appeal might be granted.

Question 1(a)

12.  Although we would accept that this question as revised potentially raises a question of great general or public importance, leave to appeal in respect of it should only be granted if it would have any practical consequence for Andrew.  In order for that to be the case, it would be necessary for him to have an arguable appeal against the Substantive Judgment (dismissing the mother’s claim against Stephanie).  It is therefore necessary to consider the basis on which Andrew intends to contend (in CACV 67/2014) that the substantive appeal against the dismissal of the mother’s action against Stephanie should be allowed and to assess the merits of that proposed appeal.

The merits of the proposed appeal in CACV 67/2014

13.  Andrew contended that leave to appeal in relation to the substantive appeal should be granted on the “or otherwise” basis.  The four sub-paragraphs in the notice of motion in FAMV 41/2015 all rely on the fact of delay by the trial judge in handing down her judgment.  That delay was of the order of 18½ months from the completion of the trial and as the Court of Appeal rightly pointed out (at [40.1]) was “certainly regrettable”.

14.  Nevertheless, the Court of Appeal correctly applied the test[7] of examining whether Andrew could show, by reason of the delay, “omissions, errors, misunderstandings, inconsistencies etc which invalidated the judgment, rendered it unsafe or led to injustice to the appellant”.

15.  Notwithstanding the submissions advanced on behalf of Andrew, we are not persuaded that it is reasonably arguable that the Court of Appeal was wrong to conclude that the delay did not have that effect on the judgment.  In the circumstances, we would not grant leave to appeal on the exceptional “or otherwise” basis.

16.  Once that conclusion is reached, it follows that the leave granted by the Court of Appeal in respect of Question 1(a) is academic since any joinder would be of no consequence to Andrew in terms of the outcome of the appeal.  It is correct, as was submitted on behalf of Andrew, that the Appeal Committee retains a discretion to grant leave to appeal notwithstanding that the point of law may be academic as between the parties.[8] However, that discretion should plainly be exercised in rare exceptional cases[9] and we do not consider this to be such a case.  Accordingly, we would not grant leave to appeal in respect of that question.

Question 1(b)

17.  The notice of motion in FAMV 41/2015 raised a further question of law relating to the issue of joinder which is said to be of great general or public importance.  We are not persuaded that the question is such and decline to grant leave to appeal in respect of it.  Raising as it does issues of breach of natural justice and procedural unfairness, it is necessarily fact-sensitive. In any event, we are not persuaded it is reasonably arguable that there was a denial of natural justice or procedural unfairness in the refusal of joinder. Insofar as the judge’s finding of manipulation in the Costs Liability Judgment was influenced by Andrew’s evidence at the trial, the allegation that he knew there was no basis in fact for the underlying action was put to him in cross-examination and he had a proper and fair opportunity to meet that allegation.  Furthermore, as pointed out by the respondents, the factual premise on which the question appears to be based, namely that the judge’s conclusions in the Substantive Judgment were affected by findings that Andrew had manipulated his mother, is false.  As the judge pointed out,[10] her assessment of the credibility of the witnesses was not dependent on such a motive on his part.

“Or otherwise” in relation to joinder (FAMV 41/2015)

18.  It was also contended that leave to appeal should be granted on the “or otherwise” basis in respect of the issue of joinder.   However, Andrew’s contention in this regard was expressly dealt with in the CA Leave Judgment at [7] where it was pointed out that the assumption inherent in the proposition relied upon by Andrew was not made by the Court of Appeal.  We were not satisfied that there was any other basis for granting leave to appeal in respect of the joinder issue on the “or otherwise” basis.

FAMV 42/2015

19.  In respect of the Costs Liability Judgment, Andrew sought leave to appeal on the basis of a question of law said to be of great general or public importance and on the “or otherwise” basis.

20.  We were not persuaded that the proposed appeal involves the question of law identified.  It wrongly assumes that the judge based her Costs Liability Decision on findings of fact made in the Substantive Judgment.  In any event, we are not persuaded that it is reasonably arguable that, by the procedure leading to the Costs Liability Judgment, adopting the recognised two-stage process inherent in O.62 r.6A(1),[11] Andrew was denied a proper opportunity to be heard in relation to the issue of his liability for costs.

21.  The argument advanced in support of the grant of leave on the “or otherwise” basis, namely that Andrew was not the only attorney of the mother from 11 December 2006 to 10 December 2007, was expressly addressed by the Court of Appeal at [50.3] in considering the question of whether to interfere with the judge’s exercise of discretion in ordering Andrew to be jointly and severally liable for the costs of the action.  We were not persuaded that it was reasonably arguable that the Court of Appeal was wrong in declining to so interfere.

Conclusion

22.  For these reasons, we dismissed both notices of motion for leave to appeal with costs.  Ms Teresa Cheng SC invited us to grant a certificate for two counsel.   This was not resisted by the applicant and so we were content to so order.  However, since the normal rule is that, subject to the reasonableness of the fees paid, the Registrar will allow the costs incurred by a party who has employed two counsel in this Court, this was strictly unnecessary and such costs would be recoverable in any event even without such a certificate.[12]