TSUEI SHENG CHEN AND ANOTHER v. TSUEI KA YEE GRACE

HCA 3388/2016

[2019] HKCFI 362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 3388 OF 2016

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DECISION

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INTRODUCTION

1.  The 1^st plaintiff (“Father”) and the 2^nd plaintiff (“Mother”) (collectively, “Parents”) were the parents of a daughter Joyce, a son Simon and another daughter Grace who is the defendant (“D”). The Parents were/are the registered owners of a property known as Flat C, 8^th Floor, Miami Mansion, Nos 13 and 15 Cleveland Street, Hong Kong (“Property”).

2.  In the present action, the Parents sued D for the following reliefs:

(a)	an order to evict D from the Property and to require D to deliver vacant possession of the Property to the Parents within a reasonable period of time as the court would direct;
(b)	an injunction to restrain D, whether by herself or by her agents and/or representatives or otherwise from (i) assaulting, intimidating, threatening the Father and/or Mother, directly or indirectly contacting the Father and/or the Mother except through the Parents’ solicitors, and/or engaging in any of the above/other conduct which would reasonably cause the Father and/or Mother to be concerned about the personal safety and well-being of one or both of them, (ii) interfering with the possession, use, occupation and/or enjoyment of the Property or any part thereof by the Father and/or Mother, and (iii) entering or using the Property (or any part thereof) without the consent of the Father and/or Mother;
(c)	damages for trespass to person;
(d)	damages for wrongful occupation of the Property;
(e)	interest, costs and further/other relief.

3.  On 28 February 2018, the Parents filed a summons for summary judgment in respect of the following reliefs (“Parents’ Summons”): (a) a declaration that the Parents are the legal and beneficial owners of the Property, and (b) an order that D do deliver vacant possession of the Property to the Parents within a reasonable period of time as the court would think fit, with costs to be paid by D to the Parents. At the hearing of the Parents’ Summons on 29 November 2018, the Parents decided not to seek the relief in (a) above by way of application for summary judgment, leaving such relief to be pursued at trial.

4.  On 10 May 2018, D filed a summons to strike out the Parents’ SoC and to dismiss their claim in the present action (“D’s Summons”).

5.  On 14 November 2018, D filed a summons for leave to adduce her further affidavit deposed on the same day in support of D’s Summons (“Leave Summons”).

6.  On 21 December 2018, I handed down written judgment as follows (“Judgment”):

   (a)   in respect of the Parents’ Summons, I granted an order that D shall deliver vacant possession of the Property to the Parents within 35 days from the date of the order under the Judgment with costs order nisi that D shall pay the Parents’ costs of and occasioned by the Parents’ Summons (including all costs reserved if any) to be taxed forthwith if not agreed (“O14 Order”);

   (b)   in respect of D’s Summons, I dismissed such summons with costs order nisi that D shall pay the Parents’ costs of and occasioned by D’s Summons (including all costs reserved if any) to be taxed forthwith if not agreed (“Refusal to Strike Out Order”); and

   (c)   in respect of the Leave Summons, I dismissed such summons with costs order nisi that D shall pay the Parents’ costs of and occasioned by such summons to be taxed forthwith if not agreed (“Refusal of Leave Order”).

7.  For convenience, I shall adopt herein the abbreviations in the Judgment. By now, the costs orders nisi in paragraph 6(a)-(c) above had become absolute.

8.  On 4 January 2019, D filed a summons for leave to appeal in respect of the “strike out” decision (“Appeal Summons”). On the same day, D filed an affirmation in support of Appeal Summons (“D’s 4/1/19 Aff”). The Appeal Summons was scheduled to be heard by this court on 25 February 2019 at 2:30pm (“25/2/19 Hearing”).

9.  In D’s 4/1/19 Aff, D (a) stated that “[if] there are disputes of facts between the parties, the proper venue for resolution of those contradictions and disputes is trial” (see paragraph 88 of the Judgment), but the present action had not yet proceeded to trial, and (b) urged the court to “postpone the judgment regarding “strike out” till the end of the trial. Let us know when the trial takes place”. At the hearing on 30 January 2019 (“30/1/19 Hearing”), D confirmed that the “strike out” decision mentioned in the Appeal Summons referred to the Refusal to Strike Out Order.

10.  On 8 January 2019, D filed a summons seeking an order to vacate the 25/2/19 Hearing in respect of the Appeal Summons with no order as to costs of the application (“Vacate Summons”). The Vacate Summons was scheduled to be heard before this court at the 30/1/19 Hearing. At the 30/1/19 Hearing, D confirmed that the application made by way of the Vacate Summons was to vacate the 25/2/19 Hearing, but not to withdraw or abandon the Appeal Summons itself.

11.  On 17 January 2019, D filed a summons to stay execution of my order dated 21 December 2018 (“Stay Summons”). Although the Stay Summons did not specify whether the stay of execution was sought in respect of the O14 Order, Refusal to Strike Out Order and/or Refusal of Leave Order, given the nature of these 3 judgment/orders and the nature of an application for stay of execution, the Stay Summons would be relevant to the O14 Order. This was confirmed by D’s affidavit filed on the same day in support of the Stay Summons (“D’s 17/1/19 Aff”). D’s 17/1/19 Aff stated as follows: “The order dated 21^st December in the previous year end stating delivery of my home (the subject property) within 35 days can be extended. More days and nights are needed due to lack of resources and help which I need. Please give me additional days”. The Stay Summons was scheduled to be heard before this court at the 30/1/19 Hearing.

12.  On 18 January 2019, D filed her Notice of Appeal in CACV32/2019 (“Notice of Appeal”) against the O14 Order whereby it was adjudged “[D] moves from home on 25^th January this year”, and she asked the Court of Appeal to set aside the O14 Order and prayed for an order that she would not have to “move from home on 25^th January this year”. D’s grounds of appeal in the Notice of Appeal are set out in paragraph 30(a)-(e) below.

13.  Thus, the Appeal and Vacate Summonses concerned the Refusal to Strike Out Order, and the Stay Summons concerned the O14 Order.

APPEAL AND VACATE SUMMONSES

14.  As explained above, the Vacate Summons merely asked for the 25/2/19 Hearing in respect of the Appeal Summons to be vacated, but the Appeal Summons would remain outstanding and due to be heard in due course. After hearing submissions from D and Mr Chok, counsel for the Parents, at the 30/1/19 Hearing, I dismissed the Vacate Summons, which meant the Appeal Summons would be heard at the 25/2/19 Hearing (and such hearing date/time would continue to be valid).

15.  I also delivered oral reasons for the aforesaid decision in respect of the Vacate Summons at the 30/1/19 Hearing. Essentially, what D wanted was to vacate the 25/2/19 Hearing but to continue and maintain the Appeal Summons, which meant the Appeal Summons would have to be heard at a later date in any event. But D did not give any substantive or convincing reason for adjourning the hearing of the Appeal Summons to a later date. Given the nature of the Appeal Summons, which was an application for leave to appeal to the Court of Appeal against the Refusal to Strike Out Order, it should be dealt with expeditiously. I saw no viable justification for vacating the 25/2/19 Hearing and adjourning the hearing of the Appeal Summons to a later date. I therefore dismissed the Vacate Summons.

16.  Mr Chok applied for costs of and occasioned by the Vacate Summons on indemnity basis. D submitted she should not pay such costs, but did not offer any substantive reason for not paying costs of and occasioned by the Vacate Summons. In my view, since the Vacate Summons was dismissed, there was no reason why costs should not follow event. Thus, at the 30/1/19 Hearing, I ordered D to pay the Parents’ costs of and occasioned by the Vacate Summons (including all costs reserved if any) to be taxed if not agreed on party and party basis. As explained at such hearing, I was not persuaded there was sufficient basis for costs to be awarded on indemnity basis.

STAY SUMMONS

17.  Legal principles The Stay Summons referred to Order 45 rule 11 of the RHC as the legal basis upon which D made such application. But since D filed the Notice of Appeal, I would also consider Order 59 rule 13 of the RHC as possible alternative legal basis for the Stay Summons.

18.  Order 45 rule 11 of the RHC provides inter alia that “a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just”.

19.  According to Hong Kong Civil Procedure 2019,[1] “matters which have occurred since the date of the judgment or order” referred to “matters which went to the validity of the judgment and which, if established before the Court, might justify the court in saying that this was a judgment on which on the material now before it, it would not allow to be executed”.[2] In Credit Lyonnais v SK Global Hong Kong Limited, Ma CJHC (as he then was) made clear that the existence of an inherent jurisdiction to stay execution must not be confused with the exercise of it, and the exceptional nature of the jurisdiction to order a stay only arises in circumstances where inter alia new evidence emerges after the relevant judgment or order showing that it was not valid.[3]

20.  Order 59 rule 13(1)(a) of the RHC provides that “[except] so far as the court below or the Court of Appeal or a single judge may otherwise direct – (a) an appeal shall not operate as a stay of execution or of the proceedings under the decision of the court below ……” Hence, the mere lodging of the Notice of Appeal against the O14 Order would not operate as any stay of execution. Unless and until the O14 Order is set aside on appeal (if at all), the O14 Order was the final determination of D’s obligation to deliver vacant possession of the Property to the Parents within 35 days from the date of such order.

21.  The applicable principles for stay of execution of a judgment pending appeal had been set out by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd [4] and by the Court of Appeal in Toeca National Resources BV v Baron Capital Ltd.[5] It is for the applicant to show good reasons for the stay.

22.  A relevant factor is the merits of the appeal. But the existence of an arguable appeal (ie an appeal with reasonable prospect of success) is the minimum requirement before the court would even consider granting a stay. Conversely, the existence of a strong likelihood that the appeal would succeed would usually, by itself, enable a stay to be granted because this would constitute a good reason for a stay. Where there existed only an arguable appeal, the applicant would need to provide the court with additional reasons as to why a stay was justified; for example, that the appeal would be rendered nugatory. Correspondingly, if it could not be shown that an appeal would be rendered nugatory if a stay were not granted, the court would require the appellant to demonstrate strong grounds of appeal or a strong likelihood of success.

23.  Order 45 rule 11 According to D’s 17/1/19 Aff, the reason D put forward for the requested stay of execution was that “[more] days and nights are needed due to lack of resources and help which [D] need”. D’s 17/1/19 Aff did not say how many more days D would require before she would vacate the Property. At the 30/1/19 Hearing, D said she wanted another 105 days, but if that was not possible, she wanted another 53 or 52 days. I agree with Mr Chok, counsel for the Parents, this was not a valid ground to invoke Order 45 rule 11 of the RHC as it had nothing to do with the validity of the O14 Order.

24.  In paragraph 71 of the Judgment, I had given consideration to what reasonable period of time should be allowed for D to pack up her possessions and vacate the Property. I declined the Parents’ suggestion of 14 days and considered 35 days would be appropriate given (a) the familial relationship between D and the Parents, (b) the age of the Parents and their need to settle their affairs as soon as possible, and (c) D’s awareness since December 2016 that the Parents required her to vacate the Property. In short, D was given 35 days from the O14 Order to arrange her affairs and to vacate the Property.

25.  At the 30/1/19 Hearing, D claimed she did not understand what the Parents were thinking in evicting her from the Property. D said she had no full-time job, and claimed that income from any part-time job would only be sufficient to cover her breakfast, lunch/brunch and transportation expenses, and would not be sufficient to pay for rental deposit and advance rent of her alternative accommodation. D pointed out that she had lived at the Property for many years, and she needed time to come to terms about (a) leaving some of her possessions behind at the Property and/or (b) the Parents throwing away those possessions when they eventually sold the Property.

26.  D also submitted that 35 days were too short a time for her to vacate the Property as she would need time to secure finance and assistance from friends and to look for alternative accommodation that would fit a bed, writing desk and wardrobe (which meant she would have to leave behind her piano at the Property which she suspected would be thrown away if and when the Parents sold the Property). Also, given the Christmas and New Year holidays, and the then upcoming Chinese New Year, there was practical difficulty for her to leave the Property because professional movers would not work during those periods. D claimed she did not want to became a street-sleeper or to depend on social welfare.

27.  In my view, 35 days for D to vacate the Property could not be said to be an unreasonable period. In any event, by the time this Decision is handed down, D would already have 2½ months to arrange for her departure from the Property. Even taking into account the intervening public holidays, I do not find any persuasive basis to give D further time.

28.  Although D claimed she lacked resources and assistance, she did not provide in D’s 17/1/19 Aff particularised information with supporting documents as to (a) what efforts she had actually made to find alternative accommodation so that she could move out of the Property with her possessions, (b) what was her actual financial status (as no bank statements/passbooks were disclosed), (c) when she expected she would be able to vacate the Property (as there was nothing to show with certainty that she would actually leave the Property in another 105 or 52 days), and (d) what and when she expected future assistance would be available to her for vacating the Property (as she did not identify her friends whom she said would help her and/or did not state exactly when they would extend their help whether financially or otherwise).

29.  I am not persuaded D has made out a case for stay of execution under Order 45 rule 11 of the RHC.

30.  Order 59 rule 13 In relation to the merits of D’s appeal, the Notice of Appeal gave the following grounds:

(a)	D wanted to “clarify about the illness that caused the past conflicts and misbehaviour. [D] and the [Parents] are one true family”.
(b)	“聆訊當日, 有一大疊在法官前用的文件未送到[D], [solicitors for the Parents] 沒有按時送遞到對方, 當中有對[D]有用的手稿, 手稿來自[the Mother]. (發現後, [D]在28/12/2018已去信[this court], 律師樓亦被通知).”
(c)	The Parents accepted D might have illness, and the Mother wanted D to see doctors and seek diagnosis or advice.[6] “仔細閱讀, 疑問重重, 難道因被告有病, 就迫遷出家, 沒有經濟基礎之下, 在街自生自滅?”
(d)	D was distracted by the Parents’ affirmation evidence about selling and buying matter, but “[this] is not an issue. This is not about ages of the [Parents]. The judgment should not be made because of the age of the [Parents]”.
(e)	“This is all about abandonment of [D] with false accusations. Abandonment of her with a piece of sheet in the land registry dated 09.1965[7] …… due to her possible illness. The emotion [D] used to have may be over reacted that caused fearfulness because of her ignorant of her illness. [D] needs for her mother’s acceptance not abandonment”.

31.  Under (b) above, D complained she did not receive the hearing bundle (mailed to her by post on 27 November 2018) until after the Hearing, and she had written a letter to inform this court about this on 28 December 2018. Since the Judgment had been handed down on 21 December 2018, and since it was inappropriate for D to unilaterally write to the court in respect of inter partes matters, D was informed by letter dated 2 January 2019 that this court would not grant any directions in respect of her letter.

32.  However, the index to the hearing bundle clearly showed there was nothing new therein. It comprised of pleadings, orders, summonses, affidavits and exhibits, all of which had been previously served on D or were in fact documents she herself filed/served. I am unable to see how there would be any surprise for D, especially when she well knew the existence, nature and hearing of D’s, Parents’ and Leave Summonses, and had filed affirmations in support or in opposition of such summonses (as appropriate). Further, not having the hearing bundle at the Hearing did not deter D from making detailed oral submissions to the court.

33.  As for the handwritten Parents’ Note, Mother’s Note and Father’s Note, they were actually adduced by D and exhibited to the D 2^nd and 3^rd Affs, and D had addressed on the same at the Hearing (see paragraphs 48-50 of the Judgment). As for the Mother’s handwritten note dated 23 April 2016, it was nothing more than an indication to let D stay at the Property on bare licence, which was subsequently revoked by the 22/12/16 Letter.

34.  In my view, there was no arguable merit to this ground of appeal.

35.  Under (d) above, D claimed she was distracted by the Parents’ affirmation evidence about buying and selling the Property. In my view, there was no arguable merit to this complaint. Obviously, the Parents would have to refer to their purchase of the Property in 1965 to demonstrate their legal and beneficial rights in the Property. At the 30/1/19 Hearing, D submitted she was not aware of such purchase and did nothing wrong since she was only born in 1966. But the crux of the matter was not whether she knew about the purchase of the Property at the very time it was bought. Rather, the crux was that she refused to vacate the Property when the Parents as owners of the Property terminated her bare licence to stay/live at the Property. As for selling the Property, even if the Parents alluded to possible intention to sell the Property in their affirmation evidence, it would only be a reflection of their rights over the Property as legal and beneficial owners. If D considered “[this] is not an issue”, she was free to point out this in her affirmations in opposition and at the Hearing. But instead she laboured on the proposal for the Parents to sell the Property (see paragraphs 48-55 of the Judgment), and even urged the Parents to sell the Property. But for reasons set out in paragraphs 56-65 of the Judgment, D had no right to dictate any sale of the Property or to occupy or reside at the Property pending any such sale. If, as D now says, sale of the Property was not an issue, she would not have legal right to remain at the Property when the Parents terminated her bare licence.

36.  D also complained this court should not have granted the O14 Order “because of the age of the [Parents]”. But a study of the discussions and analysis in Part VI of the Judgment that led to the O14 Order plainly showed such judgment/order for D to deliver up vacant possession of the Property to the Parents was not based on the age of the Parents, but on their registered, legal and beneficial ownership of the Property and their termination of D’s bare licence to occupy the Property against which D failed to raise any triable issue or arguable defence. This court only took into account the age of the Parents as part of the overall circumstances when considering the reasonable time for D to pack up her things and vacate the Property. I refer to paragraph 24 above.

37.  Under (a), (c) and (e) above, D suggested that she possibly suffered from illness for which the Mother wanted her to seek treatment, that her possible illness might have caused past “conflicts and misbehavior”, and that emotions due to her ignorance of her possible illness might have led to over-reaction and caused fearfulness, ie the Parents left the Property for about 8 months after she received the Mother’s handwritten note dated 23 April 2016 (which urged her to seek medical treatment) such that she felt fearful and scared for their safety. In my view, these matters would not have amounted to any arguable defence or triable issue against the Parents’ termination of her bare licence to occupy the Property and/or against the Parents’ claim for her to deliver up vacant possession of the Property.

38.  As for D’s allegations that D and the Parents were one true family but the Parents (whom she described as “鄉下人”) abandoned her with false accusations and failed to give consideration to her situation, it must be remembered that the Parents’ Summons only sought summary judgment against D to deliver up vacant possession of the Property, and not for other claims such as damages for trespass to person and/or damages for wrongful occupation of the Property. The myriad allegations by the Parents against D (which D dubbed as “false accusations”) and the counter-allegations by D against the Parents were factual disputes that would require resolution at trial. But these matters were not relevant to dispute that resulted in the Order 14 Order.

39.  In my view, issues such as whether the Parents or the Mother abandoned D, whether D required the Mother’s acceptance, whether D wanted to be with her Parents as a family, and whether D’s behaviour was caused by possible illness would not inform the court’s deliberations in respect of the relief P sought by way of summary judgment. The Parents were entitled to possession of the Property by virtue of their legal and beneficial ownership, and upon termination of D’s bare licence.

40.  I also deal with several points made by D at the 30/1/19 Hearing:

(a)	D claimed the Parents made a without prejudice offer to her in March 2017 (see paragraph 14(b) of the Judgment), but complained that when such offer was not accepted the Parents merely confirmed the offer had lapsed without making any further proposal or counter-offer. In my view, there was no obligation for the Parents to make any further proposal or counter-offer. There was no merit to this complaint.
(b)	D submitted this court was biased in the Judgment because I adopted the abbreviations of “Father”, “Mother” and “Parents” for the 1st and 2nd plaintiffs and referred to her as “D”. I am unable to see how it could be said there was actual or apparent bias on the part of this court merely from the choice of abbreviation terms.
(c)	D questioned whether the Parents were true Christians because the Mother was not baptised in Hong Kong, and on such basis D questioned whether they could make valid affidavits. Such assertion was not found in D’s 17/1/19 Aff, and was nothing more than a bare assertion. Interestingly, D herself made D’s 17/1/19 Aff by affidavit but made D’s 4/1/19 Aff by affirmation, but D offered no explanation for her adoption of such different forms within a span of about 2 weeks.

41.  In all the circumstances, I am not persuaded the grounds in the Notice of Appeal or those put forward in D’s submissions at the 30/1/19 Hearing amounted to any arguable appeal with reasonable prospect of success, and hence I would not even consider granting a stay of the O14 Order.

42.  But in case I am wrong and there is an arguable appeal, I go further to consider whether there were additional reasons as to why a stay would be justified. D’s 17/1/19 Aff did not suggest that if a stay of execution was not granted the appeal under the Notice of Appeal would be rendered nugatory. If D eventually succeeded in her appeal, her loss could be compensated by damages, eg mesne profits of substituted accommodation and costs. I bear in mind there was no dispute the Parents were the registered, legal and beneficial owners of the Property, and there was no and/or no valid assertion by D of any proprietary interest in the Property. In my view, it could not be said that the appeal under the Notice of Appeal would be rendered nugatory or that D would suffer irreparable prejudice.

43.  Further, in considering stay of execution or extension of stay of execution, it is important not to forget the position of the successful party; it is always relevant to consider the prejudice that will be caused to the successful party in the event that a stay is granted. Here, the O14 Order recognised that the Parents were the legal and beneficial owners of the Property, who were therefore entitled to possession of the Property. According to the Father 2^nd Aff, the Parents had been living in hotel since about April 2016 as they could not live with D. The Parents were elderly and could not afford to reside indefinitely at hotel accommodation on their limited savings, and they feared further payment of hotel expenses over an extended period would reduce or deplete their savings. In my view, these were legitimate considerations.

44.  Taking all of the above matters into account, I see no basis for contending there were special reasons to stay execution of the O14 Order, and I am not persuaded I should grant any further stay of execution.

45.  For all of the above reasons, I reject and dismiss the Stay Summons. There is no reason why costs should not follow event. I therefore grant a costs order nisi that D shall pay the Parents’ costs of and occasioned by the Stay Summons (including all costs reserved if any) to be taxed forthwith if not agreed.

POSTSCRIPT

46.  Should D require translation of this Decision into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to her at the High Court Building at a mutually convenient time.