HO KWOK WA v. YIP YUK KWAN AND ANOTHER

HCA 1096/2013

[2020] HKCFI 2930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1096 OF 2013

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REASONS  FOR  DECISION

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Introduction

1.  This is an appeal by the Plaintiff (“P”) from the determination by Master S. P. Yip of a preliminary issue as to whether or not there had been a settlement of this action between P and the 1st Defendant (“D1”)(“the Preliminary Issue”). The Master determined that no such settlement had been reached.

2.  On the hearing of P’s appeal I allowed the appeal on the grounds that the Master did not have jurisdiction to determine the Preliminary Issue. I also gave the following directions:

3.  Consequent on allowing the appeal I have given the following directions

3.1   There be a trial of the Preliminary Issue as to whether P had settled the whole action with D1;

3.2   The trial of the Preliminary Issue be set down for hearing before a Judge, to be heard in open court on a date to be fixed in consultation with counsel’s diaries with an estimated length of hearing of 1 day;

3.3   leave to P to file further affirmations within 28 days;

3.4   leave to D1 to file affirmations in reply within 28 days thereafter;

3.5   leave to P to file affirmations in reply within 28 days thereafter

3.6   no further affirmations to be filed without leave;

3.7   all deponents to attend the trial of the Preliminary Issue for cross examination failing which their respective affirmations shall not be admissable as evidence;

3.8   there be no order as to the costs of the appeal.

3.9   the costs of the hearing before the Master be in the cause of the trial of the Preliminary Issue.

4.  I now give my reasons for allowing the appeal.

BACKGROUND

5.  In 2011 D1 commenced divorce proceedings against P in which D1 was the Petitioner and P was the respondent.

6.  In the divorce proceedings, an issue arose as to the validity or otherwise of the will of P’s deceased father. The family judge made an order for the trial of a preliminary issue as to this question.

7.  In 2013, P commenced this action against D1 and P’s mother, the administratrix of the estate of P’s late father, seeking a declaration that the will of P’s deceased father is invalid.

8.  On 7 November 2018, D1 took out a summons for leave to set the action down for trial.

9.  On the first hearing of D1’s summons for leave to set the action down for trial, P (who appeared in person) contended that a settlement had been reached between the parties and that accordingly the action should not be set down for trial. The hearing was adjourned in order to allow P to seek legal advice and/or representation in the matter.

10.  Ultimately, on 1 February 2019,  at the adjourned hearing of D1’s summons for leave to set the action down for trial (at which P again appeared in person), Mr. Registrar S. Kwang (“the Registrar”) made the following order:

“1.  Any supplemental affirmation to be filed and served by parties must be filed and served within 14 days from today.

2.  No further affirmation to be filed and served without the leave of the Court. Any affirmation filed without leave be expunged from Court records.

3.  The Preliminary Issue as to whether the Plaintiff has settled the whole action with the 1st Defendant be argued before a Master with 2 hours reserved on affidavit evidence. No witness be called.

4.  The Summons filed on 7th November 2018 for setting down the case for trial be adjourned pending the determination of the Preliminary Issue.

5.  The 2nd Defendant be excused from attending the hearing on the Preliminary Issue.

6.  Costs be reserved.”

11.  It would appear that the idea that the question as to whether or not there had been a settlement should be resolved as a preliminary issue was mooted by the Registrar rather than by either of the parties and the order that the Preliminary Issue should be argued before the Master was made by the Registrar of  his own motion. 

12.  The Preliminary Issue came on for hearing before Master S P Yip on 8 April 2019 and on that day the Master determined that P had not settled the action with D1.

THE PRELIMINARY ISSUE

13.  It is now common ground between the parties that the hearing held before the Master which led to him determining the Preliminary Issue in favour of D1 was in the nature of a trial and that, accordingly, RHC Order 36 rule 1 is applicable. This provides as follows:

“Trial before, and inquiry by, master

In any cause or matter other than a criminal proceeding by the Crown, the Court may, with the consent of the parties, order that the cause or matter, or any question or issue of fact arising therein, be tried before a master or that the master do inquire and report thereon and, in the case of inquiry and report, giving consequential directions.”

14.  It is P’s case that at no time did he consent to an order for the trial of the Preliminary Issue or to such a trial being held.

15.  By summons issued on 7 July 2020, D1 applied to the Registrar for an order that the order of the Registrar made on 1 February be amended by adding the words “with the consent of the parties” in the preamble, contending that, in effect, P did consent to the order for the trial of the Preliminary Issue. That application was dismissed by the Registrar by order dated 21 October 2020.

16.  At the hearing of P’s appeal against the order of the Master of 8 April 2019, whereby the Master purported to determine the Preliminary Issue in D1’s favour, Counsel for D1 did not pursue the argument that P had consented to the order for the Preliminary Issue and it was accepted by Counsel for both P and D1 that the Registrar had no jurisdiction to order the trial of the Preliminary Issue and the Master had no jurisdiction to determine it.

THIS APPEAL

17.  The question then arIses as to whether P’s appeal from the Master’s Order lay to the Court of First Instance or to the Court of Appeal. This turns on RHC O. 58 r. 2(a) which provides as follows:

“Appeals from certain decisions of masters to the Court of Appeal”

An appeal shall lie to the Court of Appeal from any judgment, order or decision (other than an interlocutory judgment, order or decision) of a master, given or made

“(a) on the hearing or determination of any cause, matter, question or issue tried before him under Order 14, rule 6(2) and Order 36 rule 1…”

DISCUSSION

18.  In Lam Shing Chin v Luen Hing Fat Textile Ltd [1989] 2 HKC 485 Bokhary J (as he then was) considered the jurisdiction of a judge in chambers to entertain an appeal against an order for imprisonment, made purportedly under O. 49B r. 1B(1)(c) and, in this context, the proper interpretation of RHC O. 58 r. 2. In doing so, the learned judge said as follows:

“ it seems to me that the rules of the court [O.58 r.2], in providing that specific matters have to go to the Court of Appeal, did not have in contemplation judgments, orders or decisions made wholly without jurisdiction, as I think the present order was. I am quite unable to read the rules so that the matter before me is specifically covered and therefore taken out of the general power of a judge in chambers to hear appeals from Master.”

19.  I respectfully agree with these observations. Adopting a purposive interpretation of RHC O. 58 r. 2, it is my view that:

19.1   the scope of the rule is limited to substantive appeals from a determination by a Master after a trial conducted by him and does not apply to a challenge to the Master’s jurisdiction, and, in any case

19.2   RHC Order 58 r. 2 is concerned with appeals from any judgment, order or decision of a master given or made on the hearing or determination of (inter alia) a preliminary issue tried before him “under” Order 36 rule 1, i.e. a trial by a  master of a preliminary issue with the consent of the parties. It seems to me that a trial by a  master of a preliminary issue without the consent of the parties is not a trial of a preliminary issue “under” Order 36 rule 1 within the meaning of that rule.

20.  I am fortified in the views I have expressed in the preceding paragraph by observations made by Le Pichon JA (as she then was) in Kwok Ying Lung v Ko Chi Hung & Anor [2001] 3 HKC 480, viz:

“In Kwok Ying Lung [PLOA#10], Le Pichon JA (as she then was), said that “absent the consent of the parties … to the originating summons being heard by the Master rather than the judge which consent had to appear on the face of the order, there would not have been jurisdiction to entertain these appeals.”

21.  I should also mention the decision of Deputy High Court Judge L. Chan in Chiu Yu Fong (Administratrix) v Lau Kwong Wing [2011] 1 HKC 295 which concerned an appeal from the decision of a Master, reached after what the learned Judge concluded was a trial, conducted without the consent of the plaintiff. The Learned Judge held that, in the absence of consent, the Master did not have jurisdiction to conduct the trial and resolve the dispute between the parties as he did. The learned Judge allowed the appeal on this ground, observing as he did so, that, if the parties had given their consent under RHC Order 36 rule 1, the plaintiff’s appeal would have gone to the Court of Appeal direct (obviously having in mind the provisions of RHC Order  58 rule 2).

CONCLUSION AND ORDER

22.  For the above reasons:

22.1   I have concluded that, to the extent that P’s appeal from the order and determination of the Master consists of a challenge to the Master’s jurisdiction (as it does), I have jurisdiction to entertain it.

22.2   P’s appeal should be allowed as it is clear that the Master did not have jurisdiction to conduct the trial he did of the Preliminary Issue.

22.3   The Order of the Master dated 8 April 2019 be set aside.