HILL CONCEPT LTD v. YUEN YUN OR FORMERLY KNOWN AS YUEN TIN YUN

DCCJ 4215/2023

[2025] HKDC 1255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4215 OF 2023

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BETWEEN

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DECISION

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Background

1.  This is the Defendant’s application by way of summons dated 2 December 2024 for leave to appeal (“the Application”) against my decision of 26 November 2024 (“the Decision”) as per [2024] HKDC 1999, that took place on 24 April 2025 (“the Hearing”).

2.  This decision adopts those same terms and abbreviations used in the Decision and refers to the substantive facts and findings made thereof. Notably, the Decision ordered that summary judgment be entered for the Plaintiff for damages to be assessed for breach of the Sale and Purchase Agreement and the Licence as well my ordering that the Defendant’s counterclaim be struck out.

3.  As a preliminary point, the Defendant did not appear at the Hearing and was “represented” by his mother, Madam Wong, who previously appeared before DDJ Alan Kwong (as he then was).

4.  The reason for the Defendant’s absence and for Madam Wong representing him at the Hearing was dubious. In summary, the Defendant wrote and faxed a letter written in English to the Judiciary and solicitors for the Plaintiff two days before the Hearing stating that he “would like to apply [for] my mother, Madam Wong Kong Heung to be my [representative] for the [hearing]” due to his illnesses and since “my mother is the key person in the Sales and Purchase Agreement processing, I am afraid that she is the most suitable person to handle my hearing on 24 April 2025.” (“the Defendant’s Letter”).

5.  At the Hearing, advocate for solicitors for the Plaintiff, Miss Hayley Yeung initially objected to Madam Wong’s “representing” the Defendant at the Hearing given the last minute “application” by the Defendant’s Letter. After some discussion, Miss Yeung narrowed down her opposing submissions by making more focussed references to Hong Kong Civil Procedure 2025 (“the White Book”) at, inter alia, 80/2/10 and 80/6/8 at the hearing in support of her opposing submissions. Miss Yeung ultimately did not object, in the circumstances faced at the Hearing, to allow the court to proceed with hearing submissions of Madam Wong where notably Miss Yeung in her reply was fair in the treatment of Madam Wong’s submissions.

6.  Solicitors for the Plaintiff both correctly and helpfully prepared a hearing bundle for the Hearing despite it was the Defendant’s responsibility to do so given the Application was being lodged by him.

7.  As per Kwan Kam Ping (關錦萍) v Angel Face Beauty Creations (International) Ltd (唐安麒美顏創造中心(國際)有限公司) [2025] 2 HKLRD 512, where the plaintiff acted in person, the defendant’s solicitors sent a letter to court before trial, noting that the plaintiff had not prepared a pre-trial review bundle in accordance with paragraph 129 of the Practice Direction 18.1. In Kwan Kam Ping (ibid) where the defendant had not been ordered nor directed to prepare or lodge a pre-trial review bundle, nor would their client be required to lodge one under the relevant practice direction, they were instructed by their client not to lodge a pre-trial review bundle.

8.  It was held by DDJ Kenneth KY Lam that whilst it is obviously true that ordinarily speaking, all bundles are to be prepared by the plaintiff or applicant and that rule does not change just because they choose to act in person, the court held that the defendant’s solicitors seemed to have forgotten that as officers of the court, their paramount duty was to assist the court and this overrode their client's instructions. Reference was made to JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437, [2023] HKCFI 403 and Order 1A, rule 3 of the Rules of the District Court (Cap.336H) for the duty of a solicitor as an officer of the court to assist the court. It was held in Kwan Kam Ping (ibid) that it was wholly unrealistic for the defendant’s solicitors to expect the Court to be seeking assistance from the plaintiff instead of them.

9.  In relation to the Application, an appeal from a decision pursuant to section 63A(2) of the District Court Ordinance provides:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that… (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.”

10.  Ma Bik Yung v Ko Chuen [2009] 3 HKC 359 held that a reasonable prospect of success is whether the applicant for leave can show an arguable case with reasonable chances of success on appeal. KNM v HTF and Ors., HCMP 288/2011, the Court of Appeal via the judgment of Hon Fok JA (as he then was) went on at §9 and §23 respectively that:

“§9. The relevant test of whether an appeal has a reasonable prospect of success… therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

§23. By way of preface, however, it is pertinent to note that the proposed grounds of appeal all seek to attack findings of fact made by the Judge after an evaluation of the evidence adduced before him. In the circumstances, unless the applicant can show that the Judge misunderstood the evidence, or failed to appreciate its effect, or overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, this court will not interfere with those findings of fact.”

11.  The Application was supported by the Defendant’s affirmation in English also dated 2 December 2024 which stated, inter alia, the following grounds, namely:

(1) The Defendant was and is suffering from illnesses which results in the Defendant who “cannot dominate my thinking and speech after medication… I cannot defence during the hearings…”;

(2) The Decision only considered the Sale and Purchase Agreement and submissions of Plaintiff’s counsel;

(3) Madam Wong “is the most suitable person to handle my hearings”, and

(4) The Defendant “would like to have a fair trial in this case.”

12.  Relating to the coordinate points raised in the Defendant’s said affirmation:

(1) No exhibits were attached to the Defendant’s said affirmation confirming his condition, although the Defendant’s Letter had some documents attached thereof. The provenance and reliability of such said documents remain unknown and in fact only showed some appointment dates, a list of medication and a type of identification card. Nor is there any medically certified person confirming his alleged illnesses and/or treatment;

(2) I refer to the Decision where I considered all relevant submissions and evidence presented to me and deny the Defendant’s allegations made against this court;

(3) I repeat paragraph 5 of this decision, in fact would reiterate that at the previous hearing relating to the Decision I allowed the Defendant to consult Madam Wong during the hearing of the Decision, made express additional time for the Defendant to make submissions, additionally I did not notice the Defendant was somehow compromised in making his submissions; and

(4) The issue(s) and outcome of the Application are determinative of the same.

13.  Beyond what was mentioned in the Defendant’s said affirmation, at the Hearing there was essentially nothing which Madam Wong raised that substantively challenged the Decision with any substance which is required under the law as aforesaid. In fact, save as to be explained hereinbelow, nothing which Madam Wong raised at the Hearing was anything different from what was argued before this court pursuant to the Decision.

14.  The only matter that Madam Wong submitted at the Hearing which had any minor difference from previous submissions made at the hearing relating to the Decision was that she stated in a highly challenging and indirect manner that she (and the Defendant) felt there were matters that went unresolved.

15.  Madam Wong complained at the Hearing that the police (and the Plaintiff) did not follow up on investigating what Madam Wong (and the Defendant) personally perceived as being suspicious circumstance(s) regarding some unidentified persons on behalf of the Emperor Group or debt collectors supposedly carrying out some unknown but untoward actions toward the Defendant at the Property which caused the Defendant and Madam Wong to be intimidated and/or harassed.

“我哋唔知道, 為當時我哋報咗警, 之後警察 [黎]度只係備案,佢唔肯同我哋去追查, 因為我哋係希望佢用個人面識別, 各方面係追查到呢間公司點解冇批准, 而係有一個清潔工帶佢哋去我哋屋企嘴度, 咁呢度我哋係懷疑佢同英皇, ...因為如果唔係有英皇或者有[一]個管理處…批准，... 係代表佢哋就係識一啲陌生人去上門, 去我哋屋企咽度, … 我唔知佢哋係咪… 各方面追數公司, 所以我去報警…, 因為當時我哋屋企應該係冇人 ，所以我哋就係唔知佢嚟到係做乜，因為佢哋收題就係走咗…同呢單案係絕對有關係喋... [即係騷擾] 或者係恐嚇我哋.”

16.  The aforesaid circumstances which Madam Wong stated have no evidential foundation whatsoever nor does such alleged circumstances relate to any meaningful aspect of the Decision.

17.  The finding of facts and ruling by this court in the Decision were explained in detail but Madam Wong on behalf of the Defendant failed to identify any error, let alone put forward any grounds to show that the finding(s) in the Decision were plainly wrong and unreasonable given the evidence before the court.

18.  In conclusion, this court is not satisfied that the Application has a reasonable prospect of success. The Defendant has not shown that there was some other reason in the interests of justice why the Application should be granted on any basis.

19.  The Application is dismissed.

20.  I grant a costs order nisi that the Defendant pay costs of and occasioned by the Application to the Plaintiff to be taxed if not agreed on a party and party basis. This order nisi shall become absolute unless an application is made to vary it within 14 days of the handing down of this decision.

21.  The hearing bundle for the Application and the vast majority of the related documents filed were filed in English. Should the Defendant require translation of this decision into Punti, he may contact my clerk to arrange for an appointment for a court interpreter to verbally translate this decision to him at the District Court Building at a mutually convenient time. Furthermore, the Plaintiff must serve on the Defendant a Chinese translation of the sealed copy of the order made herein.