WONG SEE YIN v. TIN WAN TUNG AND ANOTHER

CACV 160/2016

[2019] HKCA 301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 2016

(ON APPEAL FROM APPLICATION TO SET ASIDE A

STATUTORY DEMAND NO. 11 OF 2016)

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J U D G M E N T

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

Background

1.1.   On 7 November 2018, this court gave judgment (“the Judgment”) dismissing the appeal of the Applicant Wong See Yin against the Decision of Anthony Chan J made on 29 June 2016 (“the Decision”) refusing to set aside 2 Statutory Demands (“the SDS”) served on him on 4 March 2016. 

1.2.   The SDS were based on 2 Allocaturs for costs ordered against Mr Wong in favour of Full Pacific Development Ltd (“FPD”) and Tin Wan Tung.

-   FPD was the plaintiff in HCA1801/2010 in which the defendants were Mr Wong and two companies in liquidation, Matrix Wealth Ltd (“MW”) and Fully Fortune Asia Ltd (“FFA”), both of which had been controlled by Mr Wong.  

-   Mr Tin was the plaintiff in HCA167/2011, the defendants being the same as in FPD’s action.  

2.  By the time the appeal came before us in October 2018, Wilson Chan J had on 25 May 2018 given judgment in HCA1801/2010 and HCA167/2011 against Mr Wong. Although Mr Wong had filed a Notice of Appeal against that judgment on 19 June 2018 in CACV238/2018, there was no order for stay of execution.  Accordingly, for reasons set out in detail in the Judgment, we held that there was no longer an existing counterclaim which could form the basis of Mr Wong’s application to set aside the SDS.  

Application for leave to appeal to the CFA

3.  On 4 December 2018, Mr Wong filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal. 

4.  Section 22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap. 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this court or the CFA 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 CFA for decision.

5.  Mr Wong has set out the following questions in the Notice of Motion:

“Q1: The correct legal principle(s) and approach(es) to be applied to the question of and to what extent, in view of Justice, whether the Order(s) and/or Judgment(s) obtained by fraud(s) related to the HCA 167/2011 and HCA 1801/2010 (“CMP”), [including] but not limited to the Judgments and/or Orders .

(a)   dated 26/4/2013 of Hon. J. Louis Chan for the interlocutory proceedings of CMP resulting in the Allocaturs;

(b)   the Order dated 29/6/ 2016 of Hon. J. Anthony Chan for dismissing the set aside of Statutory Demands (“SD”) based on such Allocaturs in the CALL-OVER hearing;

(c)   the Order dated 11/8/2017 of Hon. J. To for HCCW 250/2016 and HCCW 251/2016;

(d)   the Order dated 25/5/2018 of Hon. J. Wilson Chan for the CMP;

(e)   the Order dated 7/11/2018 of various JA of Court of Appeal for CACV 160/2016 and/or other action(s) or proceedings ((a) to (e) collectively called “the said Orders”),

   should be set aside and/or the executions of the said Orders should be automatically stayed by Court(s) until the final and conclusive results of the CMP and/or the CACV 238/2018 appealed against CMP to avoid the party suffering from litigation(s) and/or Order(s) initiated and/or obtained by false documents, false Statement of Claim (“SOC”), false Answer(s) to Further and Better Particulars (“Answers to F & BP”) and false Statement(s) of Truth annexed to SOC and the Answers to F & BP lodged to Court(s) by Tin Wan Tung and/or So May Kin and/or their related parties which constituted fraud and/or contempt of court under Order 41A rl to r10 (esp r9) of the Rules of High Court (Cap 4A), and to what extend the Court shall set aside or stay and/or initiate to set aside or stay the Order or Judgement obtained by fraud to protect the affected party or to avoid using false documents / false statements / false Statement of Claim / false Statement of Truth to obtain Court Order or Judgment to safeguard the interest(s) and fairness for the party or parties in litigation(s) or Public Interest or the Integrity of the Court(s)?

Q2:   The correct legal principle(s) and approach(es) to be applied to the question of and to what extent, in view of the fraud(s) and issue(s) mentioned in Q1, whether (a) the bona fide cross-claim which appears to be equal or exceeding the amount of the SD or the costs orders should be deemed to be valid or existing as the said Orders should be invalidated due to fraud(s) with substantial evidences filed to Court(s) (which include false SOC, false F & BP and the false Statement(s) of Truth) and no time bar to rehearing or application of setting aside of the said Orders, or (b) the Judgment of the Appeal in CACV 160/2016 should be pended until and unless the final and conclusive result(s) of the Appeal(s) of the said Orders including but not limited to CACV 238/2018 or the issue(s) of fraud(s) be properly handled?

Q3:   The correct legal principle(s) and approach(es) to be applied to the question of and to what extent, in view of the Public Policy and the interest(s) of the litigant(s) and/or safeguarding the Public Fund, whether the Court(s) should allow Tin Wan Tung concealing the transfer of asset and/or proper reporting to Social Welfare Department and/or the information or documents from Social Welfare Department but obtained the said Orders and benefited from the said Orders by fraud(s), without altering or set aside the said Orders resulting in the party / parties suffering from concealment(s) and/or unfairness?

Q4:   The correct legal principle(s) and approach(es) to be applied to the question of and to what extent, in [view] of the Appeal CACV 160/2016 is to appeal to set aside the Order date 29 June 2016 when Anthony Chan J heard HCSD I l of 2016 (“A. Chan Order”), the bona fide cross-claim which appears to be equal or exceeding the amount of the SD or the costs orders (“the cross-claim validity”) should be valid in 2016 as CMP had not been heard in 2016 but Anthony Chan J incorrectly not determining the cross-claim validity before him in 2016, render the Appeal CACV 160/2016 against the then incorrectly judged A. Chan Order to be [sustainable] based on the situation that the Court of Appeal incorrectly considered the time frame for [determining] the cross-claim validity to be the situation or status 2018 which is incorrect?

Q5:   The correct legal principle(s) and approach(es) to be applied to the question of and to what extent, in view of the irregularity, fraud(s), reasonableness, fairness and equity, whether (a) the Order 59 Rule 13(1)(a) should not be applied to the said Orders obtained by frauds and the counterclaims of the Applicant should be deemed prevailing, and (b) the potential proceedings leading to the Order of bankruptcy of Wong See Yin resulting in shifting the CACV 238/2018 appeal for trustee to consider, should be disallowed or not?

Q6:   The correct legal principle(s) and approach(es) to be applied to the question of and to what extent, in view of the irregularity, fraud(s), reasonableness, fairness and equity, whether the fair and just test and/or the reasonableness test and/or equity test and/or other test(s) or principle(s) should be applied overriding the test(s) or principle(s) applied in the Judgment dated 7 Nov 2018 for CACV 160/2016.”

6.1.   On 6 December 2018, Master Au Yeung gave directions to the effect that Mr Wong’s submissions included in the Notice of Motion be treated as his written submissions. 

6.2.   On 20 December 2018, the respondents’ solicitors wrote to the Registrar of Civil Appeals requesting that the court dismiss the Notice of Motion for lack of merits and indicating that to save time and costs, they would not be filing any submissions. 

6.3.   On 24 December 2018, Mr Wong wrote a letter to the court submitting that as the respondents had not filed any submissions, his application for leave to appeal to the CFA should be granted. In that letter he also enclosed:

(a)   a summons issued in HCA1801/2010 and HCA167/2011 on 14 December 2018 by the liquidators of FFA requesting (amongst other things) that execution of Wilson Chan J’s orders be stayed for directions to be sought from the Companies Court “in relation to” the judgment in those actions and the deeds of transfer relating to the properties the subject-matter of that judgment; 

(b)   a summons issued in HCCW250/2016 (FFA’s winding up proceedings) requesting (amongst other things) that execution of Wilson Chan J’s orders be stayed for the liquidators to seek legal advice on their rights and duties to sign the deeds of transfer.

Mr Wong said that these documents were important for the court to know about recent developments in the proceedings.

Discussion

7.  Mr Wong was made bankrupt on 21 January 2019 (from which he has filed an appeal on 18 February 2019) but this does not affect his locus in his application to appeal our Judgment as the application to set aside the statutory demands was part of the bankruptcy process.

8.  In relation to Mr Wong’s submissions in his letter of 24 December 2018, it is clear from the letter dated 20 December 2018 from the respondents’ solicitors that they object to the Notice of Motion.  The fact that they did not take advantage of their right to file submissions in opposition does not mean that they consent to the grant of leave, and even if it did (which it did not), it does not mean that the court is bound to exercise its discretion to grant leave.

9.  Further, the fact that another party to the actions before Wilson Chan J has applied for a stay of execution of the orders vis-a-vis that party does not affect Mr Wong’s situation.  In any event, by a Consent Summons filed on 1 March 2019, the court ordered that the liquidators do transfer the properties to FPD and Mr Tin respectively and dismissed the rest of the liquidators’ summons.  

10.  Finally, looking at the questions in the Notice of Motion, we do not consider that any are questions of great general or public importance, nor do we see any reason to give leave under the “otherwise” limb.

Order

11.  For these reasons, we would dismiss the Notice of Motion with costs to the respondents which we would summarily assess at $38,000 in total.  Mr Tin’s own costs are to be taxed in accordance with Legal Aid Regulations.