CHOI YUK YING v. NG NGOK CHUEN

HCA 1853/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1853 OF 2014

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JUDGMENT

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1.  This is the plaintiff’s application for leave to appeal against the decision of this court made on 14 February 2017.

2.  For leave to be granted, the law is settled that the plaintiff has to demonstrate a reasonable prospect of success which is more than fanciful but does not have to be probable: section 14AA, High Court Ordinance, Cap 4; SMSE v KL [2009] 4 HKLRD 125 at §17.

3.  The plaintiff made an oral application on 14 February 2017 for leave to amend para 7 and prayer (1) of the Statement of Claim to introduce the issue of constructive trust.

4.  After hearing submissions, this court (amongst others):

(a)   refused the plaintiff’s oral application for leave to amend; and

(b)   barred the plaintiff from running the issue of constructive trust during the trial or in closing submission.

5.  This was plainly a case management decision involving the court’s exercise of discretion. 

6.  At this hearing, the main submissions advanced by the plaintiff are that:

(a)   Leave to amend should be granted because no prejudice would be caused to the defendant.

(b)   The issue of constructive trust is a legal conclusion which the plaintiff was entitled to run with or without amending.

(c)   In any event, the plaintiff should not be debarred from running the constructive trust case.

7.  It is the plaintiff’s submission that the plea of constructive trust is no more than a legal result of the facts already pleaded in paras 3, 4 and 6 of the Statement of Claim.  She argued that the proposed amendment does not raise any factual matters not already pleaded. 

8.  The plaintiff further submits that the defendant’s contention that no particulars of “unconscionability” were pleaded is devoid of substance, as “unconscionability” is not a material fact that has to be pleaded to advance the issue of constructive trust, relying on AM v SS [2014] EWHC 2887 (Fam); De Bruyne v De Bruyne [2010] 2 FLR 1240.

9.  The plaintiff’s submission that the issue of constructive trust need not be specifically pleaded does not help him.  It is clear that this submission does not support her case that the leave to amend application should have been granted.  Plainly, if the plea of constructive trust is unnecessary, she would not have pressed hard to seek leave to amend her pleading by adding constructive trust on the first day of the trial, and now to seek leave to appeal.

10.  Neither do I accept that no prejudice to the defendant would arise if leave to amend was granted.

11.  Without disrespect to Mr Yu SC’s submission on the law relating to the necessity to plead “unconscionability”, the short answer to this part of the plaintiff’s argument is that the refusal of her application to amend was not based on the court’s concluded view on the necessity to plead “unconscionability”.  In fact, at para 19 of the Reasons for Decision, it was expressly stated that:

“ 19. It is unnecessary for the court, especially in view of the fact that the arguments came before the court in such a hurried fashion, to decide whether unconscionability needs to be particularized.”

12.  To argue that it was unnecessary for the defendant to raise further or new evidence to counter unconscionability, and hence no prejudice would visit the defendant is a red herring.

13.  Moreover, I accept the defendant’s argument that even though the plaintiff had no intention of adducing new facts or evidence, the defendant was entitled to raise facts or matters relating to unconscionability in ways he deemed fit in order to meet the plaintiff’s case of constructive trust.

14.  This will involve an adjournment of the trial, either in whole or in part.

15.  But the plaintiff said, based on their contention that no new facts need to be adduced by the defendant, that the adjournment should be a short one of no more than a few hours.

16.  I disagree, for the simple reason supplied by the defendant — he was entitled to take instructions, research the topic and adduce all relevant facts or matters, for example, relating to the issue of unconscionability to tackle the plaintiff’s case.  The length of the adjournment was not to be dictated by the plaintiff. 

17.  The argument that only a very short adjournment of a few hours is unrealistic.  I would have thought that an initial adjournment of one day for counsel to explain the amendment to the defendant, take instructions and research the topic before considering or making the next step, which may entail a further and longer adjournment, cannot be branded as unreasonable.  It is noted that the time involved for dealing with the plaintiff’s application for leave to amend itself took a little over one day.

18.  This is sufficient prejudice to the defendant. After all, he came on 14 February 2017 expecting to finish the trial over the course of the set-down dates, and not to spend time and money to face and tackle new matters which he had not been told of until very shortly before the commencement of the trial.   

19.  The authorities are clear that an adjournment in itself constitutes prejudice to the defendant and I simply repeat para 22 of the Reasons for Decision.  Even though it might not be an adjournment of the entire trial, an adjournment of one to two days would still mean that the milestone dates were moved, in the sense that the trial would go part-heard and delayed with more costs and time being incurred.  Asking the plaintiff to bear the costs may not be adequate compensation as it took the defendant much waiting to come on for trial.

20.  I was further reminded of Practice Direction 5.2 para 34 which provides that:

“ A PTR is not an extension of the CMC. The Court expects a case to be ready for trial. Late interlocutory applications may be dismissed on the basis of delay alone.”

21.  The plaintiff’s submission that even though leave to amend was dismissed, she should nonetheless be at liberty to run the constructive trust issue sounds that she wants to have the cake and eat it.

22.  It cannot be right that having failed to seek the amendment, she could still pursue the point. 

23.  I came to the conclusion that the court has not erred in the exercise of its discretion in dismissing the plaintiff’s last-minute application for leave to amend the Statement of Claim.

24.  Accordingly, the plaintiff has failed to demonstrate a reasonable prospect of success. 

25.  The plaintiff’s application for leave to appeal against the Order of 14 February 2017 is dismissed with costs to the defendant, certificate for two counsel.

26.  I thank Counsel for their able assistance.