LO YUK KUEN v. PERSONAL REPRESENTATIVE OF THE ESTATE OF WONG WING KING, DECEASED AND OTHERS

CACV 157/2022

[2022] HKCA 1305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 157 OF 2022

(ON APPEAL FROM HCA NO 924 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 16 June 2021, the Plaintiff, who has been granted letters of administration of the estate of Woo Kam Lun Peter, deceased (“the Deceased”)  on 15 May 2018 and letters of administration de bonis non of the estate of the Deceased’s mother on 15 June 2021 (each being a tenant-in-common holding a 1/5 share of the property known as Lot No 457 in Demarcation District No 34, Tai Po, New Territories (“the Land”)), commenced the action below against, amongst others, the 2^nd Defendant, an occupier of the Land, for, inter alia, vacant possession of the Land and mesne profits from 14 August 2019 up to delivery of vacant possession of the Land.

2.  On 29 June 2021, the 2^nd Defendant issued a summons to strike out the Statement of Claim on the ground that it disclosed no reasonable cause of action, and/or was frivolous, vexatious and an abuse of the process of the Court under Order 18, rule 19 of the Rules of the High Court (Cap 4A), or the inherent jurisdiction of the Court.

3.  On 2 July 2021, the 2^nd Defendant filed a defence contending that: (i)  upon the death of the Deceased, all his estate and interests in the Land passed to the surviving owners (ie the other 4 tenants-in-common), or (ii)  alternatively, the Plaintiff could only sue jointly with the other co-owners by virtue of Order 15, rule 4 of the Rules of the High Court.  Accordingly, the Plaintiff had no legal entitlement or estate or right or locus standi to commence the action singly, and the Plaintiff’s Statement of Claim was liable to be struck out as disclosing no reasonable cause of action and/or being frivolous, vexatious and an abuse of the process of the Court.

4.  On 22 October 2021, Master Kent Yee dismissed the 2^nd Defendant’s summons with costs, which were summarily assessed.

5.  On 22 February 2022, Mr Recorder William Wong, SC dismissed the 2^nd Defendant’s appeal against the Master’s order with costs (“the Order”).

6.  On 4 March 2022, the 2^nd Defendant served a notice of appeal (“the Notice to Appeal”)  against the Order on the Plaintiff without having first obtained leave to appeal from the Recorder. On 22 April 2022, the 2^nd Defendant filed the Notice of Appeal.

7.  On 21 June 2022, the Registrar of Civil Appeals informed the 2^nd Defendant that since leave to appeal had not been obtained, the Notice of Appeal was liable to be struck out.  The Registrar of Civil Appeals further directed the 2^nd Defendant to inform the Court whether he would apply for leave to appeal from the court below or, alternatively, if he was of the view that leave to appeal was not necessary and he objected to the Notice of Appeal being struck out, he might lodge written submissions on or before 5 July 2022 in support of his objection.

8.  The 2^nd Defendant filed his written submissions on 6 July 2022, having obtained an extension of time from the court to do so.  In essence, the 2^nd Defendant argues that leave to appeal is not required because the Order is a final order.

9.  Section 14AA(1)  of the High Court Ordinance (Cap 4)  provides that, except as provided by rules of court, no appeal lies to the Court of Appeal from any interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.  The test for determining whether a judgment or order is interlocutory or final is the well-established “application test”, ie, whether the judgment or order made upon the application would, whether it fails or succeeds, determine the whole action (see Hong Kong Civil Procedure 2022, Vol 2, §E1/14AA/7).  Applying this test, it is clear that the Order is an interlocutory order, because the whole action would not be determined in the event of failure of the 2^nd Defendant’s application.

10.  The application test is subject to Section 14AA(2)  of the High Court Ordinance, which provides that rules of court may specify a judgment or order of any prescribed description to which subsection (1)  does not apply and accordingly an appeal lies as of right from the judgment or order.

11.  Order 59, rule 21(1)  of the Rules of the High Court sets out a list of judgments or orders to which s 14AA(1)  of the High Court Ordinance (leave to appeal required for interlocutory appeals)  does not apply and accordingly an appeal lies as of right from them.  The list includes “a judgment or order determining in a summary way the substantive rights of a party to an action” (sub-rule (1)(a)).

12.  Order 59, rule 21(2)  of the Rules of the High Court further provides that, without affecting the generality of rule 21(1)(a), the following are judgments or orders determining in a summary way the substantive rights of a party:

(1)  an order striking out an action or other proceedings or a pleading or any part of the pleading under Order 18, rule 19 or under the inherent jurisdiction of the Court (sub-rule (2)(b)); and

(2)  an order dismissing or striking out an action or other proceedings for want of prosecution (sub-rule (2)(f)).

13.  However, an order refusing to strike out an action or proceedings for want of prosecution has been held not to be an order which determines in a summary way the substantive rights of any party to the action (see Winpo Development Ltd v Wong Kar Fu, CACV 39/2011 (22 July 2011).  By parity of reasoning, an order refusing to striking out an action or other proceedings or a pleading under Order 18, rule 19 or under the inherent jurisdiction of the Court is not an order which determines in a summary way the substantive rights of any party to the action.

14.  It follows that the 2^nd Defendant requires leave to appeal against the Order.  Further, under Order 59, rule 2B(2)  of the Rules of the High Court, so far as is practicable, the application for leave should, in the first instance, be made to the judge against whose judgment or order leave to appeal is sought.  There is no suggestion that it was not, or is not, practicable to make such application to the Recorder.

15.  The Notice of Appeal was improperly filed and served, and is struck out.  Since the Plaintiff does not appear to have taken any steps in relation to the Notice of Appeal, we make an order nisi that there be no order as to costs.