LEE SUN KIU alias HO LI SAN KIU v. HO KAY FUK

CACV 292/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 292 OF 2004

(ON APPEAL FROM HCA 195 OF 2001 AND HCA 3998 OF 2002)

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.  On 20 August 2004, Lam J, after a trial which lasted 10 days, dismissed the plaintiff’s claims which were made on the basis that she was a member of certain Tso/Tongs in the New Territories.

2.  The plaintiff was 95 in 2004.  At the trial, she was represented by solicitors and counsel.

3.  The plaintiff appealed.

4.  The appeal came up for hearing on 28 November 2006 before Yeung JA, Yuen JA and Waung J.

5.  The plaintiff was unrepresented in the appeal.

6.  Earlier on 22 September 2006, by a letter which bore what purported to be the fingerprint of the plaintiff, she asked that she be permitted to be represented by her grandnephew Mr Ho Chun-wing.

7.  Mr Ho appeared in court on 28 November 2006, and applied for leave to represent the plaintiff.  However, in the course of the hearing on 28 November 2006, the court discovered that the plaintiff could not even give an appropriate answer when she was asked her name, and it appeared she was unaware of what was going on at the time.

8.  As a result, on 28 November 2006, the court made the following order under Order 80 of the Rules of High Court:

“The appeal be stayed for a period of 3 months and in the event that no application is made under O. 80 Rules of the High Court (Cap. 4A) within that period, the said appeal is to be dismissed, with liberty to apply on the question of costs.”

9.  On 11 January 2007, Mr Ho applied by summons for an order that:

“… Mr Ho Chun-wing (何俊榮) to represent the Plaintiff under Order 80 Rules of High Court (Cap. 4A)”

10.  That application was dismissed by Yeung JA on 20 March 2007 (“the decision”).

11.  Mr Ho was dissatisfied with the decision and by summons dated 30 March 2007, applied to us under O. 59 r. 14(12) which provides:

“An appeal shall lie to the Court of Appeal from any determination by a single judge, not being the determination of an application for leave to appeal, and shall be brought by way of fresh application made within 10 days of the determination appealed against : … ”

12.  As Yeung JA pointed out in the decision, in Mr Ho’s affirmation, affirmed by him on 13 February 2007, at para. 28 he said:

“I affirm that the plaintiff does not speak much, but she is definitely not a mentally incapacitated person within the meaning of Mental Health Ordinance, Cap. 136.”

13.  That being the case, Yeung JA held that no order could be made under O. 80.

14.  Moreover, on that occasion, the learned judge also tried to make inquiry of the plaintiff in order to understand her wishes.  But as the learned judge said in para. 7 of his decision, she did not know where she was and she kept on repeating 「住老人院也要花錢」.

15.  Mr Ho appeared before us.  He did not put his written submissions as well as his oral submission on the basis that the plaintiff came within O. 80.  Rather his complaint was directed to the order of 28 November 2006.  What he wished to do was to proceed with the plaintiff’s appeal.

16.  There could be no appeal to us from the order of 28 November 2006, so we are not in a position to entertain Mr Ho’s complaints which were directed to that order.  Neither can we deal with Mr Ho’s wish to proceed with the appeal.

17.  As for the decision under appeal, with respect, it is unassailable.  On the evidence presented to Yeung JA, he could not have made an order under O. 80.

18.  That being the case, this application to us must be dismissed with costs, such costs to be taxed if not agreed.