JORA SISI OMAR v. JORA HARMIDAR OMAR

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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D E C I S I O N

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Introduction

1.  This is a probate action. The defendant by her summons dated 2 September 2015 (“the Summons”) applies for summary determination of certain issues pursuant to O33 r.3 and/or O14A r.1, Rules of the High Court (“RHC”). Mr Chong, with Ms Yip, for the defendant contends that the determination of such issues in the defendant’s favour can lead to the dismissal of the plaintiff’s claim and, on that basis, the grant of summary judgment on the defendant’s counterclaim pursuant to O.14 r.5 as well.

2.  There are altogether five issues calling for determination without a trial and they are set out in the Schedule to the Summons. Before this court deals with each of them in turn, it is necessary to outline the background facts which are not controversial unless otherwise stated.

Background facts

3.  As shown in the title of this action, the bone of contention concerns the estate of the late Mr Omar (“the Deceased”). The plaintiff contends that his estate should consist of a property known as 3/F, 170 Sai Wan Ho Street, Hong Kong (“the Flat”).

4.  In or about April 1944, the Deceased purportedly celebrated an Islamic marriage in Hong Kong with the late Madam Ng (“the Islamic Marriage”). The plaintiff disputes the validity of the Islamic Marriage.

5.  In or about 1954, the Deceased purportedly celebrated a modern Chinese marriage in Hong Kong (“the Chinese Marriage”) with Madam Wong. The defendant disputes the validity of the Chinese Marriage.

6.  The Deceased and Madam Wong had three children in the course of the Chinese Marriage, namely, the plaintiff, Andy Omar and Lucy Omar. The plaintiff was born in 1957 and she has been residing at the Flat since 1960.

7.  The Deceased had been a civil servant and a registered member of United Co-operative Building Society Limited (“the Society”) since its incorporation in 1957. The Society conferred on the Deceased the exclusive use and occupation of the Flat.

8.  In or about April 1960, the Deceased and Madam Ng jointly applied for an adoption order to adopt the defendant, who was then nine years old. The adoption order was made on 19 April 1960 (“the Adoption Order”) and it was registered with the General Register Office thereafter. The plaintiff challenges the validity of the Adoption Order by reason of the dispute over the validity of the Islamic Marriage. In short, she contends that Madam Ng was not qualified to apply for the Adoption Order.

9.  On or about 12 May 1960, the Deceased allegedly nominated Madam Ng to be his beneficial successor to his membership of the Society pursuant to the By-Laws of the Society No.7(2) (“the 1960 Nomination”). The plaintiff says the 1960 Nomination is invalid.

10.  In December 1977, the Deceased passed away. In the following month, Madam Ng applied for membership of the Society pursuant to the 1960 Nomination. Her application was accepted and she was registered as a member of the Society with effect from 16 January 1978 (“the 1978 Membership Registration”).

11.  In January 1979, Madam Ng nominated the defendant to be her beneficial successor to her membership of the Society (“the 1979 Nomination”). The plaintiff says that the 1979 Nomination is invalid.

12.  In March 1998, the Society was dissolved. In the following month Madam Ng passed away. The liquidation of the Society was commenced in May 1998.

The claims

13.  The plaintiff brought this action to challenge the validity of the Islamic Marriage and the Adoption Order. She also prays for a declaration to the effect that all the three natural children of Madam Wong and the Deceased are legitimate and they have entitlement under the grant of Letters of Administration.

14.  The defendant avers that even if the 1979 Nomination is found to be invalid, she is still entitled to inherit the membership of the Society as a chose in action vested in the estate of Madam Ng regardless of whether she died with a will in the form of the 1979 Nomination or intestate.

15.  The defendant contends in her counterclaim that all along the plaintiff has occupied the Flat with the bare licence granted by the Deceased, Madam Ng and her only. Now by her counterclaim she revokes the licence and seeks to recover possession of the Flat within a reasonable time.

General principles

16.  The applicable legal principles are not in dispute. Yeung JA in Lee Yiu Kwan v Ting Yin Wah, unreported, CACV 311/2002, 21.4.2004 set out certain passages in Hong Kong Civil Procedure 2004 Vol.1 for the principles governing the exercise of the discretion to deal with preliminary issues. In Hong Kong Civil Procedure 2017 Vol.1 gives a convenient summary of such principles by way of its commentary in §33/4/9A at p.773 as follows:

“Separate trial of a preliminary point of law—The Court of Appeal in Lee Yiu Kwan v. Ting Yin Wah (unrep., CACV 311 and 312/2002, 28 and 31/2003, [2004] H.K.E.C. 1222) set out a convenient summary of some of the principles relevant to the exercise of the court’s discretion to deal with preliminary issues of law with or without application of the parties (principles, along with supporting authorities, originally referred to in Hong Kong Civil Procedure 2014):

• (i) The question of law or construction to be determined by the court under the order should be stated or formulated in clear, careful and precise terms, so that there should be no difficulty or obscurity, still less any ambiguity, about what is the question that has to be determined.

• (ii) Where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination, for to do so would in effect be to give legal rulings in vacuo or on a hypothetical ruling, which the court will not do.

• (iii) An order for the separate trial of separate issues is a departure from the general rule that all disputes should be tried together, and therefore generally speaking, such an order should only be made in exceptional circumstances or on special grounds.

• (iv) Where costs can be saved by obtaining a ruling on a point of law which requires serious argument and consideration being disposed or before trial, the point should be raised in the pleading and application should be made under O.33 , rr.3 and 4(2) for the trial of this point as a preliminary issue.

• (v) The order, as a rule, will only be made if the objection raises a serious question of law, which, if decided in favour of the party objecting, would dispense with any further trial, or at any rate with the trial of some substantial issue in the action. The order should not be made in respect of matters to which by reason of the obscurity either of the facts or the law ought to be decided at the trial.

• (vi) The order for the trial of a preliminary point of law should not be made where there are facts in dispute, and if made may be set aside at the hearing.

• (vii) A point of law may in special circumstances be ordered to be set down and argued before the trial, although it is not raised on the pleadings.

• (viii) The order should make clear what is the precise point of law to be decided.

• (ix) Only such questions of law can properly be raised as preliminary issues as must necessarily arise in the action and the court will not decide fictitious questions or questions in which those who are interested, or are likely to be, are not present or are not in esse.

• (x) The House of Lords has strongly protested against the practice of the Court of First Instance allowing preliminary points of law to be tried before and instead of first finding the facts, since this course frequently adds to the difficulties of the Courts of Appeal and tends to increase the time and cost of legal proceedings.

• (xi) Where for the purposes of deciding questions of law it is necessary or desirable to ascertain the facts beyond those that appear in the pleadings, the court should not order the trial of those questions as a preliminary point of law, especially where the law is itself unsettled or obscure.

• (xii) An “issue” which involves dealing with the whole subject matter of the action without any evidence is not a preliminary point and should not be ordered to be tried as such.

The Court of Appeal confirmed that both Order 14A and Order 33 give discretion to the court to deal with preliminary issues of law without application from any of the parties whether raised by pleadings or otherwise but that the exercise of the discretion is subject to well-established principles. (Note: The Court of Appeal in Lee Yiu Kwan v. Ting Yin Wah & Another was referring to the Rules of the District Court, the wording of O.14A and O.33 of which are identical to O.14A and O.33 of the Rules of the High Court).”

17.  In view of Mr Chong’s reliance on the Limitation Ordinance, Cap. 347 (“the LO”) in this application, the decision of Waung J in Chan Jak Tung (t/a Forward & Co) v Baltrans Ltd [1997] 1 HKC 89 when the court was asked to deal with the limitation defences as preliminary issues is apposite. There, Waung J bore in mind the general principle that an order for the separate trial of separate issues is a departure from the beneficial object of the law that all disputes should be tried together, and therefore, generally speaking, such an order should only be made in exceptional circumstances or on special grounds. The applicant must satisfy the court that as a matter of case management or as an exercise of discretion that it is just and convenient to order separate trials for preliminary issues. The application should be based on a pure point of law on the basis of economy of time and expense.

18.  The case management culture has grown even stronger after the CJR. As noted in the commentary of Hong Kong Civil Procedure 2017 Vol.1 at §33/3/2, “a summons for determination of preliminary issues under O.33 r.3 should only be made in special circumstances or on special grounds due to saving costs and time. Such exceptional circumstances did not include a question of law or fact raised two years after the action had begun, see Secretary for Justice v Times Square Ltd [2011] 2 HKLRD 409.”  

19.  I note that this action came into being in July 2011. In 2013, the plaintiff herself made an application for summary determination of her claims by way of O.14 and/or O.14A and was opposed successfully by the defendant. On the other hand, as a result of the defendant’s striking out application, the pleadings of the plaintiff are now tolerably clear with many but not all of the irrelevant matters removed. In terms of progress, unfortunately this action is still at its early stage with the close of pleadings only.

20.  In light of these principles, it is imperative for this court to consider first whether or not this court should exercise its discretion to decide on the five issues separately before the trial of the action as preliminary issues and if so how they should be determined.

The five preliminary issues/questions of law identified by the defendant

First Issue

21.  The first question of law/ preliminary issue is whether the plaintiff’s challenge to the validity of the 1960 Nomination, the 1978 Membership Registration and hence the 1979 Nomination is time barred under the LO.

22.  This limitation issues are raised in the Amended Defence and not specifically dealt with by the plaintiff in her pleadings.

23.  I do not think that I should deal with these limitation issues as preliminary issues. Nor can they be described as a pure question of law under O.14A.

24.  Mr Liang, for the plaintiff, submits that the plaintiff does not seek this court’s determination of the validity of the 1960 and 1979 Nominations and the 1978 Membership Registration and so these are not matters properly placed before this court.

25.  I am unable to accept his submission. Though the plaintiff does not ask for a declaration of the invalidity of the 1960 and 1979 Nominations and the 1978 Membership Registration, such issues are clearly raised in her pleading and the defendant’s denial makes them live issues in these proceedings. They are relevant to the question as to whether or not any proprietory interest in the Flat and/or the rights associated with the membership of the Society are still vested in the estate of the Deceased.

26.  Going back to the pleaded case of the plaintiff, her position is that the validity of the 1960 Nomination depends on the validity of the Islamic Marriage. She avers that there was no valid marriage subsisting between the Deceased and Madam Ng and therefore Madam Ng was not within the definition of “beneficial successor” as defined in the By-Laws of the Society. It follows that the 1960 Nomination, together with the 1978 Membership Registration is invalid. Neither Madam Ng (and her estate) nor the defendant has any right or interest in the Flat as a result.

27.  Whether the Islamic Marriage is invalid is a mixed question of law and fact. The plaintiff raises some factual allegations purportedly capable of invitiating or disproving the Islamic Marriage. I need not set out her allegations here and they do call for determination at trial.

28.  In his reply submission, Mr Chong refers to the Marriage Reform Ordinance, Cap.178 (“the MRO”), which came into effect on 7 October 1971. He submits that the MRO in any event has validated the Islamic Marriage albeit taking place well before its operative date. He then submits that by virtue of the Islamic Marriage, Madam Ng must be the spouse of the Deceased within the meaning of sections 2 and 7 of the By-Laws of the Society. Under the latter provision, only the spouse or a parent or a descendant could be nominated by a member to be his beneficial successors in the event of his death or becoming a lunatic.

29.  I am reluctant to go further into this issue, which is not framed as a legal or preliminary issue in the Schedule at all, as accepted by Mr Chong. In any event, I do not accept the validity of the Islamic Marriage has become a non-issue because of the MRO at this stage. The defendant can of course pray in aid the MRO at trial to argue for its validity if she so wishes.    

30.  In the circumstances, I am unable to accept that these limitation issues can be resolved in a vacuum and is cost effective in the interests of case management. I refuse to determine them as preliminary issues or a pure question of law.

31.  Even if I am to dispose of these limitation defences, I am not convinced by Mr Chong’s submission that section 9 of the LO is the applicable provision. That provision governs the accrual of right of action in case of future interests relating to land. What is at issue here is clearly something else even though a member of the Society might be entitled to some rights and interests in land. I cannot see how the challenge of the plaintiff to the validity of the 1960 and 1979 Nominations and the 1978 Membership Registration is time barred under any provisions in the LO.

Second issue

32.  The second issue framed by the defendant is whether or not upon the dissolution of the Society, the right of Madam Ng’s membership in the Society became a chose in action and the personal property of Madam Ng and if so upon her death in 1998 and by virtue of the 1979 Nomination became the chose in action of her estate or bequeathed to the defendant.

33.  Given my observations above, the validity of the purported membership of Madam Ng of the Society depends on the validity of the 1960 Nomination and, ultimately, the validity of the Islamic Marriage. There is no reason why this court should determine the nature of the purported membership before the determination of its very validity.

34.  I am unable to deal with this issue as a preliminary issue or a question of law accordingly.

35.  Given this conclusion, I need not deal with the objections raised by Mr Liang. I would however indicate my reservation about his submission that this court has no jurisdiction to determine with the validity of the 1960 and 1979 Nominations and 1978 Membership Registration by reason of sections 49(1) and (4) of the Co-operative Societies Ordinance, Cap. 33 (“the CSO”). It is submitted that these two provisions confer the Society an exclusive jurisdiction to decide on any dispute touching the business of the Society. I cannot be convinced at this stage that on the true construction of these provisions of the CSO, the plaintiff cannot seek this court’s determination of the validity of 1960 and 1979 Nominations and 1978 Membership Registration in light of her suspicions about the validity of the Islamic Marriage.

Third, fourth and fifth issues

36.  All these three issues relate to the Adoption Order and can be conveniently dealt with together.

37.  The third issue is about the locus standi of the plaintiff to challenge the validity of the Adoption Order. Mr Chong submits that she does not have the locus. Even if she has, the fourth issue is whether her challenge is time barred under the LO. Lastly, the final issue is even if the plaintiff can overcome both the locus and the limitation issues, whether she can set aside the Adoption Order made in 1960 and registered with General Register Office thereafter.

38.  I first explain why the validity of the Adoption Order is a live issue here. The legal basis of the plaintiff’s challenge comes from section 3(2) of the Adoption Ordinance, 1956, which provides,

“An adoption order may be made on application of two spouses authorizing them jointly to adopt an infant.”

39.  The plaintiff claims that the Adoption Order is not valid because the Deceased and Madam Ng were not spouses within the meaning of the said provision. Again she relies on the alleged invalidity of the Islamic Marriage.

40.  The validity of Adoption Order is relevant to this probate action in two respects. First, the plaintiff disputes the beneficial interest of the defendant in the estate of the Deceased if she is proved not to be an adopted daughter of the Deceased. On the other hand, the defendant is arguably not a descendent within the meaning of section 7 of the By-Laws of the Society, either and hence the 1979 Nomination cannot be valid. I note that there is no definition of “descendant” under the By-Laws except the residence requirement which is inapplicable here.

41.  On the issue of locus, Mr Chong first argues that the Adoption Order is an order in rem and only those parties privy to the order could challenge its validity. He submits that such persons capable of challenging the making of an Adoption Order are limited by the statute. He prays in aid Rule 16 of the Adoption Rules, Cap.290A and section 5(5) of the Adoption Ordinance, Cap. 290.

42.  I with the assistance of Mr Chong have perused these two provisions. They, and Mr Chong agrees, do not specify any descriptions of persons who can challenge an adoption order.

43.  Mr Liang submits that it is obvious that the plaintiff has the locus to cast doubt on the validity of the Adoption Order as it has a bearing on the beneficial ownership of the estate of the Deceased, which is an issue of this probate action and it concerns the estate which the plaintiff is seeking to administer. I agree.

44.  Moreover, Mr Liang draws to my attention the historical facts. On two separate occasions, in HCAG001961/04 on 5 March 2004, Deputy Registrar J Wong directed that the Probate Registry could not further process the application for grant of letters of administration pending the determination of, among other issues, the validity of the Adoption Order. 

45.  On 17 May 2010, in HCAG005447/10, Madam Deputy Registrar Levy directed that a probate action might to be commenced in light of the dispute of the validity of the Adoption Order.

46.  Whoever affected by the Adoption Order should be allowed to challenge its validity. I can resolve the preliminary issue as to whether the plaintiff has the locus standi to challenge the validity of the Adoption Order in her favour though I do not for one moment think that it is a straightforward matter.

47.  In regard to the limitation argument, the short answer is that Mr Chong fails to identify any provision in the LO which specifies the time within which a challenge to the Adoption Order can be made. Whether a court will set aside an order after a long delay of more than 50 years is another matter but I do not see any merit in the time bar argument. I again resolve this issue in the plaintiff’s favour.

48.  In his argument of the last issue, Mr Chong invites this court’s attention to Re B [1995] Fam 239 CA. There, on adulthood, an adopted son found out that he was not a Jew. His Jewish adoptive parents had long found out this but nonetheless continued to raise him as their adopted son. They had been clearly misled at the time of the adoption application though. In 1994, the adopted son applied to the High Court to set aside the adoption order made in 1959 and the judge refused his application not on limitation grounds.

49.  The Court of Appeal upheld the dismissal of his application. First, it upheld the judge’s conclusion that the Adoption Act 1976 did not provide for general challenge to an adoption order other than an appeal and so the judge had no jurisdiction to set aside the adoption order. Second, whist it was accepted that a court can set aside an order by reason of a procedural irregularity or fraud, the reason advanced by the adopted son was not cogent enough to constitute a ground to set aside the adoption order.

50.  Mr Chong prays in aid the following dictum of Sir Thomas Bingham MR at p.252F,

“An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of eh hearing or has not for some other reasons heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud.”

51.  I agree with the dictum of Sir Thomas Bingham MR and too find it to be instructive. However, in this probate action, I fail to see why the plaintiff is debarred from raising any challenge to the validity of the Adoption Order altogether without asking for it to be set aside. If her challenge is upheld, whoever in charge of the administration of the estate of the Deceased may apply to set it aside with the joinder of all the necessary parties.

52.  Therefore, I am unable to agree with Mr Chong and I conclude that the fifth issue should be resolved in the plaintiff’s favour again.

53.  Lastly, I have to deal with the application for summary judgment on the counterclaim. That is premised upon the dismissal of the plaintiff’s claim. Obviously, given my foregoing conclusions and in particular, my acceptance of the existence of live issues relating to the beneficial ownership of the Flat in light of the plaintiff’s challenge to the validity of the 1960 and 1979 Nominations and the 1978 Membership Registration, the application for summary judgment cannot succeed.

Conclusion and Order

54.  Both Mr Liang and Mr Chong have raised many legal arguments and made references to factual disputes. Suffice it to say that I have considered them all and I believe I can safely reach the foregoing conclusions without the disposition of all of them here.

55.  Save those issues over which I have indicated my express determination, I refuse to resolve the preliminary issues and/or questions of law formulated or posed in the Schedule. I also refuse the defendant’s application for summary judgment on her counterclaim.

56.  Accordingly, I dismiss the Summons. Costs should follow the event and I make an order nisi that the defendant should pay the plaintiff’s costs of and occasioned by the Summons forthwith. I opine that summary assessment is appropriate. I direct that the plaintiff should lodge with this court her statement of costs within 21 days from the date hereof and the defendant should lodge with this court her list of objections (if any)　within 14 days thereafter. I further order that the time for any application to vary the costs order nisi to run only after the parties have been notified the outcome of this court’s summary assessment.

57.  Lastly, I thank all counsel for their assistance in this matter. 

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 19 OF 2011

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DECISION

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Introduction

1.  This is an application of the plaintiff for leave to appeal against my decision handed down on 18 May 2015 (“the Decision”) whereby this court dismissed the plaintiff’s appeal against the decision of Master M Wong dated 24 October 2014. The master dismissed her application for a review of taxation of the bills of costs of the defendant dated 22 May 2013 (“the Bill”).

2.  The plaintiff’s present application was made out of time, after more than 3 months subsequent to the handing down of the Decision. The plaintiff seeks to justify her delay with reference to her lack of legal assistance and her other commitments. She also refers to the fact that her computer has been out of order. None of the grounds advanced by her can satisfy this court that she has a good excuse. On this ground alone, leave to appeal should be refused.

3.  Nevertheless, this court proceeds to consider the merits of her application.

Purported grounds

4.  I have set out the background facts relating to the plaintiff’s appeal in the Decision and I shall not repeat the same here. Simply stated, the plaintiff’s complaint is that the master, in reviewing his taxation of the Bill, failed to pay heed to her contention that the costs order which Poon J (as he then was) made against her was merely obtained by the defendant using deceptive means.

5.  The plaintiff has filed her written grounds for her intended appeal consisting of 26 pages. At the hearing, the plaintiff repeats to this court her core allegations that the defendant’s counsel misled the judge and wrongly obtained the costs order against her. She highlights the vulnerability and susceptibility of a busy judge to lawyers’ misleading submissions. 

6.  Having heard her submission and reviewed all her written grounds, I stand by my firm view that all of her allegations of improper conduct have nothing to do with the integrity of the Bill and have no bearing on the taxation of the Bill. The plaintiff could have appealed against the costs order but she opted not to do so. She cannot challenge the costs order through the backdoor in the taxation proceedings. I am unable to see how the master could disallow all the items in the Bill as urged upon him by the plaintiff on the ground that the costs order should never have been made at all.

7.  Moreover, I am not convinced that the Order I made in the Decision should be impugned.

8.  In the premises, I am not satisfied that the plaintiff is able to meet the threshold under section 14AA(4) of the High Court Ordinance, Cap. 4. In other words, I do not accept that she has a reasonable prospect of success and/or there is some other reason in the interests of justice why her appeal should be heard.

Conclusion and Order

9.  For the reasons given, I dismiss the plaintiff’s application. I further make an order that the plaintiff should pay the defendant her costs of this application, to be taxed if not agreed.

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 19 OF 2011

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DECISION

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Introduction

1. This is an appeal of the plaintiff against the Decision of Master M Wong dated 24 October 2014 (“the Decision”) whereby her application for a review of taxation of the bills of costs of the defendant dated 22 May 2013 (“the Bill”) was dismissed.

2. The Bill relates to the costs of the defendant of three summonses. The plaintiff issued two of them and the defendant issued the remaining one. The plaintiff’s applications were made under O.14, O.14A and O.18 r.19 whereas the defendant’s application was made under O.18 r.19. Poon J heard all three applications on 12 March 2013.

3. By the Judgment dated 25 March 2013, Poon J allowed the defendant’s application and dismissed the plaintiff’s applications. Poon J further ordered that the plaintiff do pay the defendant her costs of the three applications forthwith (“the Costs Order”). As a result, the defendant produced the Bill.

4. Master M Wong first taxed the Bill on 26 May 2014. Dissatisfied with the taxation, the plaintiff applied for a review on 29 September 2014. Her application was dismissed by the Decision and hence the plaintiff mounts this appeal.

The relevant provision

5. O62 r.35A, Rules of the High Court (“the Order”) provides that a judge on his second review of the taxing master’s decision is not required to conduct a taxation de novo, but only considers the reasons for the taxing master’s decision to ascertain whether or not the taxing master erred in principle, took into account irrelevant matters or failed to take into account relevant matters.

6. The nature of this appeal is thus defined by the Order.

The grounds of the plaintiff

7. At the hearing, the plaintiff made a lot of complaints about the defendant’s conduct in these proceedings. She contends that the Judgment of Poon J was wrongly procured by misleading materials supplied by the defendant and misconceived submissions made on her behalf. In other words, the Costs Order was procured by deception. The plaintiff asserts that if Master Levy, who had followed their disputes for more than 10 years, had heard the applications instead of Poon J, the outcome would have been very different and she should have been granted judgment against the defendant.  

8. Following from that, the plaintiff goes on to say that Master M Wong should not merely focus on the figures in the Bill. He should not have dismissed her complaints as irrelevant. She argues that Master M Wong should have taken into consideration all the circumstances of the matter including in particular the improper conduct of the defendant and should have disallowed the entire Bill.

9. The plaintiff makes it clear that she does not complain about any individual items of the Bill. Her complaint is about the Bill in its entirety. She reiterates that she is not arguing about dollars and cents and it is a question of all or nothing. 

10. About the Decision, the plaintiff complains about the untruthfulness of such documents produced by the defendant such as chronology, skeleton argument and list of authorities referred to in the Bill. She maintains that the costs of such documents should not be borne by her.

11. Concerning the counsel fee sought to be recovered by the defendant, the plaintiff complains that counsel of the defendant only gave her a large pile of authorities shortly prior to the hearing before Poon J. She also alleges that his legal submissions were deliberately misleading. She argues that Master M Wong should not have merely reduced his brief by HK$10,000 and he should have disallowed all the counsel fee.

12. The plaintiff further complains about the absence of the defendant’s solicitors at the call-over hearing on 17 June 2013. She accepts that an adverse cost order (HK$200) was already made against the defendant as a result.

13. Lastly, she complains that the defendant’s legal representatives wrongfully submitted that her legal aid application was refused. This submission gave a false impression that her application for stay of execution was unmeritorious.

14. These are her major complaints made at the hearing and I have heard her out. It is clear to me that none of them falls within the ambit of the Order. This is not an appeal against the Judgment of Poon J including the Costs Order. The plaintiff explains that she has decided not to do so because of the legal advice she has received. She then has to bear the consequences following from her decision including her liability to pay costs to the defendant under the Costs Order. The defendant was entitled to present the Bill and have it taxed in accordance with the established principles.

15. Nothing advanced by the plaintiff can cause me any concern about the correctness of the taxation of Master M Wong. I cannot accept her submission that Master M Wong in any way erred in principle in that he failed to take into account the alleged improper conduct of the defendant and her legal representatives. I am of the view that her allegations of improper conduct have nothing to do with the integrity of the Bill and have no bearing on the taxation of the Bill. Master M Wong cannot be faulted in his taxation of the Bill. 

Conclusion and Order

16. In the premises, I see no ground to interfere with the discretion of Master M Wong exercised in the Decision. The appeal of the plaintiff must be dismissed. I further make an order nisi that the plaintiff should pay the defendant her costs of this appeal forthwith, to be taxed if not agreed.

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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REVIEW OF TAXATION

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Background

1.  This is a review application made by the plaintiff in respect of my taxation of the defendant’s bill of costs dated 22 May 2013 (“the Bill”).

2.  By the order of Poon J dated 25 March 2013, the plaintiff was ordered to pay forthwith the defendant’s costs of the plaintiff’s summons filed on 28 September 2012, the plaintiff’s summons filed on 30 October 2012 and the defendant’s summons filed on 5 October 2012, including all costs reserved, to be taxed if not agreed.

3.  The Bill was prepared by the defendant pursuant to the said order of Poon J and was taxed by me on 26 May 2014.

4.  The plaintiff is dissatisfied with my taxation and filed an application by way of summons dated 6 June 2014 to review my taxation made on 26 May 2014 pursuant to Order 62, rule 33 of the Rules of the High Court.

5.  A list of objections was delivered by the plaintiff on 10 July 2014 specifying the items of the Bill to which she has objections on review and the grounds of such objections.  The defendant delivered the answer to the plaintiff’s list of objections on 4 August 2014.

6.  At the review hearing on 29 September 2014, the plaintiff submitted many matters not related to the grounds of objections stated in the list of objections.  As indicated to the plaintiff at the hearing, I will not deal with those matters not related to the stated grounds of objections.  In any event, many of those matters submitted by the plaintiff at the hearing were not relevant to taxation but were in relation to her dissatisfaction with Poon J’s decision.  Thus, for the purpose of this review, I will only deal with the plaintiff’s objections as per her list of objections.

7.  In her list of objections, the plaintiff also seeks clarification of the calculation of the taxing fee of $9,756.00.  As the calculation of taxing fee was done after taxation and did not form part of my decision on taxation, it should not be a subject matter for the present review application.  It is also inappropriate for me to give legal advice to the plaintiff on how the taxing fee should be calculated.  Thus, I will not deal with this request for clarification. 

8.  According to the list of objections, the plaintiff objects to the taxation of items 1, 2, 4.1, 13, 14.1, 14.2, 19, 23, 24, 30.1, 30.2 and 30.3 of Section A, items 3 of Section B.1, items 1 to 3 of Section B2 and item 3 of Section C of the Bill.  I shall deal with these objections as stated below.

Items 1 and 2 of Section A

9.  The plaintiff objects to items 1 and 2 of Section A of the Bill as follows: -

“- the summons & the affirmation were sent to the Defendant’s agent KH as 1 whole set of document

- the contents of the summons were 2 pages in 1.5 line spacing

- the contents of the affirmation were 6 pages also in 1.5 line spacing

- the contents of the 3 exhibits attached to the affirmation were things already very well known to the KH for almost 9 months

-it does not take an hour to consider a few pages & something already known, KH has been practicing for 18+ years, 20 minutes is more than enough”

10.  Item 1 of Section A is for the work done by the defendant’s solicitor, Ms Kelly Ho (“KH”), in considering the plaintiff’s summons dated 28 September 2012.  The summons has 4 pages (not 2 pages as suggested by the plaintiff) and 10 paragraphs in total.  The spacing of 1.5 lines is just the standard format for court documents.  The summons covers applications under Order 14A and Order 14 of the Rules of the High Court and many grounds for the applications were stated in the summons.  The defendant claimed for 15 minutes for this work and I allowed 15 minutes as claimed.  I do not think that 15 minutes is excessive or unreasonable for a solicitor to spend in considering a summons of this length and nature.

11.  Item 2 of Section A is for the work done by KH in considering the plaintiff’s supporting affirmation for the said summons.  The affirmation has 7 pages (not 6 pages as suggested by the plaintiff) and 28 paragraphs together with 3 exhibits.  Again, the spacing of 1.5 lines is just the standard format.  Even though KH might be familiar with the background of the case and was admitted as a solicitor in 1994, it is still necessary and proper for her to consider the affirmation in details so as to see if the contents support the plaintiff’s applications.  The time claimed by her is 1 hour and I allowed 45 minutes.  I do not consider 45 minutes being excessive or unreasonable for such work.  The suggestion of 20 minutes by the plaintiff is just far too low for an affirmation of this length and nature.

12.  It is not clear why the plaintiff mentioned that the summons and the affirmation were sent to KH as one whole set of documents, which is in fact what should be done normally.  In any event, the time for considering the summons and the affirmation can be separately charged and I see no problem with that.

13.  Thus, I do not agree that the taxed amounts for items 1 and 2 of Section A of the Bill should be revised at all.

Item 4.1 of Section A

14.  The plaintiff objects to item 4.1 of Section A of the Bill as follows: -

“- this false affirmation & the 12 irrelevant exhibits only serve a dirty purpose, i.e. created confusion & to drag on for KH own commercial benefits in this non arguable in law & fact probate action

- the core of this affirmation is paragraph 6 a made out dirty lie stating that “the Plaintiff orally agreed to strike out her own pleading”

- the real fact was: the Plaintiff issued summons on 3^rd April 2012, she invited Master K. Levy (the one who gave direction to start this action) to help her & end this non arguable in law & fact probate action on Court own motion in the hearing dated 26^th April 2012 because nothing has been defended & the impossible is being pointlessly claimed

- considering statement of claim, defence to counterclaim & so-called exhibits that stated relevant laws & hard facts is irrelevant & absolutely has nothing to do with KH’s dirty lie that served her dirty purpose

- KH has been practicing for 18+ years, draft many dirty lies to divert Court’s attention & glossed it with irrelevant materials which also included her 3 PERSONAL ORDERS does not need to take 4 hours, 30 minutes or less is more than enough”

15.  This item is for drafting the affirmation of KH dated 4 October 2012 in support of the defendant’s summons filed on 5 October 2012 for striking out many parts of the plaintiff’s pleadings.  The affirmation has 6 pages and 19 paragraphs, as well as 12 exhibits.  The time claimed by KH for this item is 8 hours and I taxed it down to 4 hours.  I consider 4 hours being reasonable time for preparing an affirmation of this length and nature.  The plaintiff’s suggestion of 30 minutes or less is obviously insufficient for doing such work.

16.  The plaintiff’s main objections are that the affirmation is false and contains irrelevant exhibits, but such objections cannot be established in view of Poon J’s decision in allowing the defendant’s summons and many parts of the plaintiff’s pleadings were struck out as sought by the defendant.

17.  I therefore do not agree that the amount taxed by me for this item should be revised.

Item 13 of Section A

18.  The plaintiff objects to item 13 of Section A of the Bill as follows: -

“- the contents of the Plaintiff’s Defence were 8 pages in 1.5 line spacing: the contents merely stated the laws & facts already known to KH

- KH has been practicing for 18+ years, it does not take her 45 minutes to read a few pages, this does not make sense, 15 minutes or less is enough”

19.  This item is for KH’s work in considering the plaintiff’s “DEFENCE to Defendant’s application for O18, R19”, which is in effect the plaintiff’s written submission in respect of the defendant’s striking out application as mentioned above.  It has 9 pages (not 8 pages as suggested by the plaintiff) and 22 paragraphs.  KH claimed 1 hour for this work and I taxed it down to 45 minutes.

20.  Although some of the laws and facts stated in this document would be known to KH, it is still proper and necessary for KH to consider the submissions put forward by the plaintiff in this document.  I think it is appropriate to spend 45 minutes for considering submissions of this length and nature.  The plaintiff’s suggestion of 15 minutes or less is clearly insufficient for this work.

21.  Hence, there is no reason to revise the amount for this item.

Item 14.1 of Section A

22.  The plaintiff objects to item 14.1 of Section A of the Bill as follows: -

“- this affirmation & the 15 so-called exhibits are irrelevant to the validity of the 1960 joint adoption

- the 1960 joint adoption has to be valid according to S4(3) & 3(2) Adoption Ordinance, No. 22 of 1956, i.e. valid according to the relevant laws not the standard procedures prove by the 15 exhibits

- this affirmation has evaded the relevant laws, diverted Court attention to the irrelevant and it only serve a dirty purpose, i.e. created confusion & to drag on for KH own commercial benefits in this non arguable in law & fact probate action

- KH has been practicing for 18+ years, it does not take 2 hours to draft a few pages to evade laws and divert Court attention knowingly & intentionally, 30 minutes or less is enough”

23.  This item is for drafting the defendant’s affirmation dated 8 November 2012 in opposing the plaintiff’s application for disposal of case on point of law under Order 14A and summary judgment under Order 14 of the Rules of the High Court. The affirmation has 10 pages and 37 paragraphs.  It has 15 exhibits, but the time for considering the 15 exhibits was separately charged under item 14.2 of Section A as discussed below.  KH claimed 3 hours for drafting the affirmation (not including the consideration of the exhibits), but I taxed it down to 2 hours.  I think 2 hours for drafting this affirmation is appropriate in view of its length and nature.  The plaintiff’s suggestion of 30 minutes or less is certainly not enough.

24.  The plaintiff’s suggestion that this affirmation and the 15 exhibits were irrelevant is unfounded as the defendant did succeed in opposing the plaintiff’s application under Order 14A and Order 14.

25.  There is no reason to revise the taxed amount for this item.

Item 14.2 of Section A

26.  The plaintiff objects to item 14.2 of Section A of the Bill as follows: -

“- KH must know the 15 exhibits only prove standard procedures & they are irrelevant to the validity of the 1960 joint adoption

- it does not take 30 minutes to reconsider the irrelevant & the obvious to serve a bad purpose, in fact 5 minutes is more than enough”

27.  As aforesaid, this item is for considering the 15 exhibits attached to the defendant’s affirmation dated 8 November 2012.  KH claimed 1 hour 30 minutes for this item, but I taxed it down to 1 hour.  I think 1 hour for considering 15 exhibits is reasonable and the plaintiff’s suggestion of 5 minutes is just unrealistic.

28.  There is also no basis for the plaintiff to suggest that the 15 exhibits were only to prove standard procedures and irrelevant to the issue in question in view of the dismissal of the plaintiff’s applications.

29.  I therefore do not agree that the taxed amount for this item should be revised.

Item 19 of Section A

30.  The plaintiff objects to item 19 of Section A of the Bill as follows: -

“- the Opposition was the made out affirmation & the 15 irrelevant exhibits listed as items 14, 14.1 to 14.3 on page 3 of this bill

- the Plaintiff was bound to state the laws & facts in her Reply dated 12/12/12 & these were nothing new to KH

- it does not take 3 hours or 1 & 1/2 hours for KH to read the affirmation of 22 pages in 1.5 line spacing, 20 minutes or less is enough”

31.  This item is for considering the plaintiff’s affirmation in reply to the defendant’s opposition to the Order 14A and Order 14 applications.  The affirmation has 23 pages (not 22 pages as suggested by the plaintiff) and 71 paragraphs together with 8 exhibits.  The time claimed by KH was 3 hours and I taxed it down to one and a half hours, which I think is reasonable in view of its length and nature.  Even though some of the laws and facts might be known to KH, it is still proper and necessary for KH to go through the affirmation in details. The plaintiff’s suggestion of 20 minutes is clearly insufficient.

32.  Thus, the amount taxed should not be revised.

Item 23 of Section A

33.  The plaintiff objects to item 23 of Section A of the Bill as follows: -

“- the Defendant’s skeleton argument had evaded the relevant laws & distorted hard facts; the list of 7-point made out false arguable issues only served to create confusion that misled the Court

- the Defendant’s chronology was selectively made out to mislead the Court

- the Defendant’s 2^nd list of authorities was released to the Plaintiff on 12^th March 2013 morning, i.e. a few minutes before the hearing

- it does not take 1 hour to consider what are made out to mislead the Court as well as to trick & trap the Plaintiff: the worst job was knowingly & intentionally done, the one hour was hardly necessary, 10 minutes or less is enough”

34.  This item is for considering the defendant’s skeleton argument, chronology of material events and list of authorities prepared by the defendant’s own counsel.  The skeleton argument has 21 pages and 70 paragraphs.  The chronology of material events has 2 pages and there are 14 paragraphs in the Hong Kong Civil Procedure referred to by counsel in the list of authorities.  The time claimed by KH was 2 hours and I taxed it down to 1 hour.  I think it is necessary and proper for KH to go through these documents even though they were prepared by the defendant’s own counsel.  As the skeleton argument is rather lengthy and contains many legal arguments, I think 1 hour for considering all these documents is not excessive or unreasonable.  The plaintiff’s suggestion of 10 minutes or less is just unrealistic.

35.  There is also no basis for the plaintiff to allege that the defendant’s arguments and chronology had evaded the relevant laws and hard facts or that they were false arguable issues only served to create confusion that misled the Court when Poon J has found in favour of the defendant.

36.  Thus, there is no reason to revise the taxed amount for this item.

Item 24 of Section A

37.  The plaintiff objects to item 24 of Section A of the Bill as follows: -

“- Plaintiff’s skeleton argument was a very clear cut 3 & 1/2 pages 1.5 line spacing document

- Plaintiff had only listed 6 relevant authorities

- Plaintiff’s chronology merely restated facts already very well known to KH

- KH has been practicing for 18+ years, in reading the aforesaid, 20 minutes or less is enough”

38.  This item is for considering the plaintiff’s skeleton argument, list of authorities and chronology of events.  The skeleton argument has 4 pages (or 3 & ½ pages as suggested by the plaintiff).  The list of authorities contains 6 authorities.  The chronology of events has 5 pages.  KH claimed for 1 hour and I taxed it down to 45 minutes.  It is proper and necessary for KH to go through these documents in details especially the cases cited by the plaintiff and a period of 45 minutes for considering these documents is not excessive or unreasonable.  The plaintiff’s suggestion of 20 minutes or less is just too low.

39.  I see no reason to revise the taxed amount for this item.

Item 30.1 of Section A

40.  The plaintiff objects to item 30.1 of Section A of the Bill as follows: -

“- the Defendant is a Muslim by conversion, she must know the 1944 Islamic marriage could not be valid under the law of HK, as a direct result the 1960 joint adoption must also be invalid. She is clear that her claim has been officially rejected. The worst job was planned & already implemented. Discussing & reporting the dirty job only take a very short time. 10 minutes or less is enough”

41.  This item is for the communication between KH and the defendant.  The time involved was 47 minutes and I allowed it in full.  This is the actual time KH spent with her client and I see no reason for the plaintiff to suggest that the time should be shortened to 10 minutes or less just because the defendant is a Muslim by conversion and must know that the 1944 Islamic marriage or the 1960 adoption could not be valid under the laws of Hong Kong.  In any event, it is proper and necessary for KH to advise the defendant and not to assume that the defendant knew the laws.

42.  Thus, the taxed amount should not be revised.

Item 30.2 of Section A

43.  The plaintiff objects to item 30.2 of Section A of the Bill as follows: -

“when was the communication done & how ? Clarification is needed.”

44.  This item is for the communication between KH and the plaintiff.  It concerns the correspondence passing between the defendant’s solicitors and the plaintiff, namely 7 letters dated 5 October 2012, 7 November 2012, 12 November 2012, 18 January 2013, 28 February 2013, 4 March 2013 and 7 March 2013 respectively from the defendant’s solicitors, and 7 letters dated 16 September 2012, 28 September 2012, 18 October 2012, 1 November 2012, 7 November 2012, 13 December 2012 and 8 March 2013 respectively from the plaintiff.  These letters are mainly for service of documents.  KH claimed for 1 hour and 7 minutes and I taxed it down to 45 minutes.

45.  As the plaintiff is merely asking for clarification, I do not see any reason to revise this amount any further.

Item 30.3 of Section A

46.  The plaintiff objects to item 30.3 of Section A of the Bill as follows: -

“- preparation was done & the worst job was about to be implemented, a one hour 14 minutes or a 45 minutes communication was still too excess: 15 minutes is enough”

47.  This item is for the communication between KH and the defendant’s counsel, Mr K M Chong, which is mainly for sending documents to counsel.  KH claimed 1 hour and 14 minutes and I taxed it down to 45 minutes.  There is no reason to suggest that this amount is too excessive or should be reduced to 15 minutes or less.

48.  Thus, no revision is made for this item.

Item 3 of Section B.1

49.  The plaintiff objects to item 3 of Section B.1 of the Bill as follows: -

“- K.M. Chong is not a senior counsel, the hearing on 12^th March 2013 was less than 2 hours: he had only cheated & lied, it was not legal professional work, what he had done does not justify a bill of 80K or 70K

- C.K. Mok & Co. did preparatory work not him & the unnecessary costs of this non arguable case are already listed in this bill via different labels

- the Defendant’s case is defected by legislations: this K.M. Chong had knowingly & intentionally evaded the laws by submitting that: “license place was not necessary for marriage” & “S21 Cap. 33 is not valid because a sentence been deleted in the by law.” By the standard of any reasonable man, this is cheating & lying not professional service

- the Defendant’s claim was already rejected by the Liquidator & the HK government in 1998 but in 10^th May 2002 she still gave the Liquidator the false impression that she still want to claim the Plaintiff’s 53-year old home that is being occupied by a few generations, she had done nothing for over a decade, such situation had been affecting ten families & related parties: K.M. Chong knowingly & intentionally distorted facts by submitting that the Liquidator had been stood up until the writ of this probate action was served. By the standard of any reasonable man, this is cheating & lying not professional service

- no Hong Kong Ordinance & no practice direction has given special entitlement to any Counsel to evade laws & distort facts in order to mislead the Court, then turn round & send a made out costly bill to the victim who had suffered grave injustice

- 1/2 of 70K is still a very high amount for such unbelievable work if law & order still exist in HK”

50.  This item is for Mr K M Chong’s brief fee.  The actual brief fee was $80,000.00 and I taxed it down to $70,000.00.  Although Mr Chong is not a senior counsel, he is a senior junior.  I think this case may not need a counsel of  Mr Chong’s seniority to attend, but even for a less senior junior to attend, $70,000.00 for the brief fee is by no means excessive or unreasonable.  There were 3 summonses involved, and the brief fee covers the preparation work, not just the attendance at the hearing on 12 March 2013.  Although the defendant’s solicitors, Messrs C K Mok & Co also did some preparatory work, it does not mean that Mr Chong did not do any preparation work.  Indeed, Mr Chong together with another junior counsel, Ms Yvonne Yip, had prepared a skeleton argument of 21 pages and 70 paragraphs for the hearing and he did not charge separately for the preparation work.  The defendant did not charge the plaintiff for Ms Yip’s brief fee either, as no certificate for two counsel was allowed.  Thus, assuming a less senior counsel was doing the work, I think it is justifiable for that counsel to charge $70,000.00 for the brief fee including all the preparation work.

51.  There is no basis for the plaintiff to accuse Mr Chong cheated and lied or that Mr Chong knowingly and intentionally evaded the laws.  In any event, such allegations could not be used to reduce counsel’s fee. 

52.  I therefore see no reason to revise the taxed amount for this item.

Items 1 to 3 of Section B.2

53.  The plaintiff objects to items 1 to 3 of Section B.2 of the Bill as follows: -

“- bill items 14 & 14.1 to 14.3 on page 3 only help to drag on & waste my time but prove nothing

- bill items B2, 1 to 3 is an unnecessary extension of bill items 14 & 14.1 to 14.3 on page 3: all these items refer to the same irrelevant thing

- it is stated again: the Defendant’s affirmation & the 15 so-called exhibits are totally irrelevant to the validity of the 1960 joint adoption

- it is stated again: procedures does not help to prove the validity of the 1960 joint adoption

- these items are as unbelievable as K.M. Chong’s costly bill

- 1/2 of 5K is still high for this unbelievable work

54.  These 3 items are for disbursements paid to a Notary Public in Canada for notarization of the Defendant’s affirmation dated 8 November 2012, the Chinese Consulate General in Canada and Fedex Express respectively.   They were all incurred for the preparation of the said affirmation but different from KH’s charge for her professional work.  So they were not unnecessary extension of items 14.1 to 14.3 of Section A of the Bill as contended by the plaintiff.  As discussed above, I do not find that this affirmation is irrelevant to the proceedings, and hence the defendant is entitled to the costs for preparing this affirmation including the disbursements under these 3 items.

55.  It is therefore not necessary to revise the amounts under these 3 items.

Item 3 of Section C

56.  The plaintiff objects to item 3 of Section C of the Bill as follows: -

“- 5 minutes is more than enough”

57.  This item is for KH to approve the Bill.  KH claimed 1 hour for this work and I taxed it down to 30 minutes.  The Bill has 11 pages.  It is unrealistic for the plaintiff to suggest that KH needed only 5 minutes to approve it.  I think 30 minutes for approving the Bill is reasonable.  Thus, there is no need to revise the taxed amount.

Conclusion

58.  In the circumstances, I do not find that there is any valid ground for reviewing my taxation and hence the review application must be dismissed.

59.  I therefore order as follows:-

(1) The summons dated  6 June 2014 be dismissed; and

(2) Costs order nisi: The plaintiff do pay the defendant costs of the said summons forthwith to be taxed if not agreed.

HCAP19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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D E C I S I O N

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I. Background

1.  On 26 July 2011, the plaintiff commenced the present action against the defendant in respect of the estate of Omar Abdool Kadar, deceased (“Deceased”).

2.  The Deceased and Madam Harmidar Ng Yuk (“Madam Ng”) celebrated their marriage at a mosque in Hong Kong on 19 April 1944 (“Marriage”). The defendant was born on 7 April 1951, but she was not the natural daughter of the Deceased or Madam Ng.  Since 17 January 1952, she had been living with them.  By an adoption order dated 19 April 1960 (“Adoption Order”), the Deceased and Madam Ng adopted her as their daughter (“Adoption”).

3.  In/about 1954, the Deceased had a relationship with a Madam Wong Miu Mee (“Madam Wong”).  She bore him three children including the plaintiff.

4.  Upon the registration of the United Co-operative Building Society Limited (“Society”) in 1957, the Deceased was registered as a member, and the Society conferred on him as a member the exclusive right and possession of 3/F, 170 Sai Wan Ho Street, Hong Kong (“Property”), which is the subject matter of dispute in the present action.

5.  Sections 17 and 21 of the Co-operative Societies Ordinance Cap 33 (“Ordinance”) provide that:

“17. (1) On the death of a member, a registered society may transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such persons as may appear to the committee to be the heir or legal representative of the deceased member, or may pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member’s share or interest, as ascertained in accordance with the rules or by-laws:

Provided that-

(a) in the case of a society with unlimited liability such nominee, heir or legal representative, as the case may be, may require payment by the society of the value of the share or interest of the deceased member ascertained as aforesaid;

(b) in the case of a society with limited liability, the society may transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and by-laws for membership of the society, or on his application within six months of the death of the deceased member to any person specified in the application who is so qualified.

(2) A registered society shall pay all other moneys due to the deceased member from the society to such nominee, heir or legal representative, as the case may be.

(3) All transfers and payments made by a registered society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person

……

21. In order to be qualified for membership of a co-operative society a person, other than a registered society, must-

(a) have attained the age of 18 years;

(b)    be resident within or in occupation of land within the society’s area of operations as described by the by-laws.”

6.  Under clause 7 of the By-Laws of the Society, a member may nominate in writing either the spouse or parent or descendant to be his beneficial successor in the event of his dying or becoming a lunatic.

7.  By a nomination in writing dated 12 May 1960, the Deceased nominated Madam Ng to be his beneficial successor to his membership of the Society (“1960 Nomination”).  After the Deceased died in 1977, pursuant to the 1960 Nomination, Madam Ng succeeded the membership of the Deceased with the Society, and she was so registered in 1978.

8.  On 2 January 1979, Madam Ng nominated the defendant as her beneficial successor to her membership with the Society (“1979 Nomination”).  The Society was dissolved on 12 March 1998.  Madam Ng passed away on 25 April 1998.

9.  The plaintiff had been residing at the Property since 1960.  On 26 July 2011, she commenced the present action against the defendant.  In her Statement of Claim (“SoC”), she contended inter alia that:

(a) Madam Wong is the lawful wife and relict of the Deceased, and the plaintiff and her two siblings are the lawful and natural children of the Deceased.

(b) Madam Wong and the Deceased celebrated a modern marriage in 1954.  Alternatively, Madam Wong is a lawful concubine of the Deceased.  But even if Madam Wong and the Deceased were not lawfully married, their natural children (including the plaintiff) are legitimate children of the Deceased.

(c) When the Deceased passed away in 1997, Madam Ng, Madam Wong, the defendant, the plaintiff and her siblings were entitled to his estate, but Madam Ng passed away in 1998 and Madam Ng renounced her right.

(d) The plaintiff, who resided/resides at the Property, is entitled to succeed to the estate of the Deceased, derived from his membership with the Society, in her capacity as his heir, descendant and/or legal representative.

(e) By reason of various matters, the Marriage, being an Islamic marriage, was invalid.  Since the Marriage was invalid, Madam Ng was not the Deceased’s spouse, and the 1960 Nomination was therefore invalid. Madam Ng should not have been registered as a member of the Society in 1978.

(f) Because Madam Ng was not the Deceased’s spouse, they could not have satisfied the statutory requirement in section 5(2) of the Adoption Ordinance Cap 290, ie the adoptive parents must be two spouses.  Hence, the Adoption was invalid.

(g) Since the Adoption was invalid, the defendant was not Madam Ng’s adopted daughter legally, so the 1979 Nomination was invalid.

(h) The defendant concealed the existence of Madam Wong and her children, and made a false declaration that she resided at the Property.  In fact, she emigrated to Canada in 1973 and had never resided at the Property, so she did not satisfy the live-in requirement under section 21 of the Ordinance to qualify as a member of the Society.

(i) The plaintiff reserved her right to claim adverse possession as a result of her competing claim and actual occupation of the Property since 1960.  Since she occupied/occupies the Property, she has a better right than the defendant to the Property.

The plaintiff sought inter alia a declaration that the Marriage and the Adoption were invalid, and an order that letters of administration in respect of the Deceased’s estate be granted to her with consequential reliefs and costs.

10.  On 14 February 2012, the defendant filed her Defence and Counterclaim (“D&C”), and contended inter alia that:

(a) The defendant had not been residing at the Property since 20 July 1973, and the plaintiff had been residing at the Property as the licensee of the Deceased and the successors to his membership of the Society.  The defendant denied the plaintiff had any right of claim on the basis of adverse possession.

(b) Latest by 19 April 1944, Madam Ng had converted to Islam.  The Marriage was entered into in accordance with the personal laws of the Deceased and Madam Ng, ie the law of Islam, and it was a valid marriage.  Alternatively, between 1944 and 1977 the Deceased and Madam Ng lived together as man and wife under the same household at the Property, and the common law presumption of husband and wife applied.  The Adoption was therefore valid, and the Adoption Order was properly registered with the General Register Office on 30 April 1960.  Hence, the defendant being the lawful adopted daughter of the Deceased and Madam Ng was entitled to succeed to the estate of the Deceased as his issue, and the plaintiff had no locus to challenge the validity of the Marriage and/or the Adoption.  Alternatively, the plaintiff’s challenges were time-barred.

(c) Upon the death of the Deceased, Madam Ng was registered as a member of the Society by virtue of the 1960 Nomination, and had since been a member of the Society.  Such registration was regular and pursuant to the Ordinance.  Before Madam Ng passed away and the 1979 Nomination took effect, the Society was dissolved on 12 March 1998.  Upon the dissolution of the Society, the right to succeed to Madam Ng’s membership became a chose in action.  Upon Madam Ng’s death, such right became part of her intestate estate which only the defendant was entitled to succeed.  Further or alternatively, the plaintiff’s claim against the defendant was time-barred in any event.

(d) The defendant denied that Madam Wong is the lawful wife and relict of the Deceased or that she would be entitled to succeed to the estate of the Deceased.  The defendant further denied that Madam Wong had entered into any form of marriage in 1954 with the Deceased and/or had acquired her status as a concubine of the Deceased.

(e) The defendant denied there was any false declaration or fraudulent concealment of material facts.

Further, the defendant averred that the plaintiff was previously permitted by the Deceased, Madam Ng and the defendant to use and occupy the Property as her residence rent-free due to blood and family ties between the parties, but by service of the counterclaim the defendant revoked the plaintiff’s licence to use and occupy the Property.  The defendant counterclaimed for delivery up of vacant possession of the Property by the plaintiff within 30 days.

11.  On 13 March 2012, the plaintiff filed a substantial Reply and Defence to Counterclaim (“R&DC”) that repeated what had been averred in the SoC and also set out other matters.

12.  On 28 September 2012, the plaintiff applied by summons for summary disposal of the action pursuant to Orders 14 and 14A of the Rules of the High Court (“RHC”) (“28/9/12 Summons”).  On 5 October 2012, the defendant applied by summons to strike out of certain parts of the SoC and the R&DC (“5/10/12 Summons”).  On 30 October 2012, the plaintiff applied by summons to strike out certain parts of the D&C (“30/10/12 Summons”).

13.  On 15 November 2012, Master Levy adjourned the 28/9/12, 5/10/12 and 30/10/12 Summonses (collectively, “Three Summonses”) to be heard by Poon J.

14.  The hearing of the Three Summonses came before Poon J on 12 March 2013.  By his written decision handed down on 25 March 2013 (“Decision”), the learned judge (a) found in favour of the defendant in respect of the 5/10/12 Summons and struck out parts of the SoC and R&DC, (b) dismissed the 28/9/12 and 30/10/12 Summonses, and (c) ordered that the plaintiff do pay forthwith costs of the Three Summonses including all costs reserved to be taxed if not agreed (“1^st Cost Order”) (“25/3/13 Order”).

15.  On 2 April 2013, the Director of Legal Aid (“DLA”) filed a Memorandum of Notification of an Application for Legal Aid (“LA Application Memo”) advising that the plaintiff had applied for legal aid.

16.  On 23 May 2013, the DLA filed a LA Application Memo advising that the plaintiff had applied for legal aid.

17.  On 6 June 2013, the plaintiff applied by summons for stay of execution of the 25/3/13 Order pending determination of the plaintiff’s application for leave to appeal against such order to the Court of Appeal (“CA”) and, if leave was granted, pending the determination of the appeal (“Stay Summons”).  On 30 October 2013, the Stay Summons was dismissed by Poon J, and the plaintiff was ordered to pay costs of the application forthwith to be taxed if not agreed (“2^nd Cost Order”) (“30/10/13 Order”).  On the same day, the learned judge also delivered oral reasons for the 30/10/13 Order (“Judgment”).

18.  On 4 November 2013, the DLA filed a LA Application Memo advising that the plaintiff had applied for legal aid to prosecute an appeal against the 30/10/13 Order.  On 2 and 6 January 2014 respectively, the DLA filed Memorandum of Notification that a Party Has Been Refused Legal Aid in respect of plaintiff’s applications for legal aid for the proceedings and for prosecution of an appeal against the 30/10/13 Order.  On 9 January 2014, legal aid was granted in favour of the plaintiff as from that date.

19.  On 13 January 2014, the plaintiff (acting in person) applied by summons for “stay of taxation upon appeal against [the 25/3/13 and 30/10/13 Orders] on the ground that counsel opinions have been sought with merits found” (“Summons”).  On the same day, the plaintiff filed her affirmation in support (“Affirmation”).

20.  On 16 January 2014, the assigned solicitors Messrs Pang, Wan & Choi filed Notice to Act on behalf of the plaintiff.

21.  On 23 January 2014, Master Levy refused the plaintiff’s Summons for stay of taxation, and ordered the plaintiff to pay costs of the Summons to the defendant summarily assessed at $51,500 to be paid forthwith (“MasterOrder”).

22.  On 6 February 2014, the plaintiff filed her Notice of Appeal against the Master Order (“Appeal”).  The Appeal was heard before me on 29 April 2013 (“Hearing”).

II.  Preliminary matters

23.  The plaintiff’s legal aid certificate did not extend to cover the prosecution of the Summons and the Appeal, and hence the plaintiff was unrepresented at the hearing before Master Levy on 23 January 2014 and at the Hearing.  It is also apparent from the plaintiff’s written submissions that she had applied for legal aid (which had not been granted by the time of the Hearing) for an appeal against the 25/3/13 and 31/10/13 Orders.

24.  By her written submissions and at the Hearing, the plaintiff complained about late service of the supplemental hearing bundle by the defendant’s solicitors, and their failure to serve their written skeleton submissions that had been lodged with the court.

25.  Pursuant to Practice Direction 5.4,[1] the hearing bundle for the Hearing should have been prepared and lodged/served by the plaintiff.  The plaintiff did not lodge/serve any hearing bundle, and the supplemental hearing bundle was lodged/served by the defendant to facilitate the Hearing.  In any event, the supplemental hearing bundle comprised documents which had been previously filed in the present action and known to the plaintiff.  The plaintiff was also able to lodge written submissions in respect of those documents prior to the Hearing.  I am unable to discern any prejudice as a result of any late service of the supplemental hearing bundle as alleged by the plaintiff.  However, it would have been helpful if copies of the Summons and Affirmation were also included in the hearing bundle.

26.  The plaintiff also alleged that the defendant’s solicitors had failed to serve their written skeleton submissions for the Appeal, but Ms Ho, solicitor for the defendant, disagreed.  There was no need to resolve this dispute as it was overcome by Ms Ho confirming she would rely on her oral submissions at the Hearing.

III.  Master’s appeal

27.  It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.

IV.  No appeal against the 25/3/13 and 30/10/13 Orders

28.  Since the 25/3/13 Order was an interlocutory order, leave to appeal is required.[2]  Order 59 rule 2B(1)(a) and (2) of the RHC provide that:

“(1) Subject to paragraph (4) and any other enactment, an application for leave to appeal against –

(a) an interlocutory judgment or order of the Court;

……

may only be made to the Court in the first instance within 14 days from the date of the judgment or order.

(2) So far as is practicable, the application must be made to the judge …… against whose judgment or order leave to appeal is sought.”

Order 59 rule 2B(4) of the RHC provides that “[if] the [CA] allows, the application may be made direct to the [CA] within 14 days from the date of the judgment or order”, but as explained in Hong Kong Civil Procedure 2014 Vol 1 para 59/2B/2 at pp 1050-1051,

“…… Whilst O.59, r.2B(4) permits an application to be made to the [CA] directly, para.13 of Practice Direction 4.1 – Civil Appeals to the [CA] dated February 12, 2009 directs that such an application should be made in good time so that where the [CA] refuses to entertain the application, an application can timeously be made to the court below. The Practice Direction does not seem to envisage a party to apply under O.59, r.2B(4) for leave directly from the [CA] should he fail to apply for leave to appeal from the Court below within the specified time.”

29.  This means that any application for leave to appeal against the 25/3/13 Order should have been brought to be heard by Poon J.  But the 14‑day time limit under Order 59 rule 2B(1) of the RHC to obtain leave in the first instance from the learned judge had long expired. [3] The further 14‑day time limit under Order 59 rule 2B(3) of the RHC for the application to be made to the CA after refusal in the first instance had also long expired.  A direct application (with the approval of the CA) to the CA within 14 days of the 25/3/13 Order under Order 59 rule 2B(4) had likewise expired.  Yet up till now the plaintiff had not made (a) any application for leave to appeal against the 25/3/13 Order to either Poon J or the CA, or (b) any application to the CA for extension of time for appeal against such order.

30.  However, the plaintiff all along was well aware of her right to seek leave to appeal against the 25/3/13 Order (including the 1^st Cost Order) or, indeed, her need to seek such leave if she wished to overturn such order.  First, by the Stay Summons, the plaintiff had applied for stay of execution of the 25/3/13 Order (including the 1^st Cost Order) pending determination of her application for leave to appeal against such order to the CA, and if leave was granted, pending determination of the appeal.  Secondly, Poon J in paragraph 2 of the Judgment held that by then (ie 30 October 2013) the plaintiff still had not made any application for leave to appeal against the 25/3/13 Order, and any application for stay in the absence of a pending appeal could not be supported.

31.  By now, the plaintiff is more than 10 months out of time in respect of any application for leave to appeal against the 25/3/13 Order.[4]  The court below has no power to grant extension of time for leave to appeal against such order.[5] But to date, the plaintiff had yet to make any application to the CA for such extension of time.

32.  Likewise, for the 30/10/13 Order (including the 2^nd Cost Order), there is to date no application for leave to appeal against such order despite lapse of the prescribed time for such purpose (and by now the plaintiff is more than 5 months out of time)[6] and/or no application for extension of time to do so.

33.  The fact there is no pending application for extension of time for leave to appeal against the 25/3/13 and 30/10/13 Orders and/or any undertaking by the plaintiff to forthwith issue such application would be fatal to the Summons which sought stay of the taxation proceedings “upon appeal against [the 25/3/13 and 30/10/13 Orders]”.  Even if there were merits in respect of any potential appeal against such orders (which I disagree), it would be irrelevant if there was in fact no appeal.  In the absence of any application for extension of time for leave to appeal against such orders (let alone any pending substantive appeal), it is unnecessary to consider the merits of any potential appeal for the purpose of the Summons.  As Chung J said in Re HY & HT Lee Brothers & Company Limited (which concerned an application for stay of taxation of the respondents’ costs or alternatively stay of execution of the taxed costs pending the outcome of pending appeals to the CA in CACV307/1999 and CACV328/1999),[7] “…… if in fact no appeal is intended to be brought against the costs orders, there would simply be no valid reason to ask for a stay”.[8]

34.  This is also borne out by Order 59 rule 13(1)(a) of the RHC, which provides that “[except] so far as the court below or the [CA] or a single judge may otherwise direct – (a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below; ……” Chung J in Re HY & HT Lee Brothers & Company Limited held that Order 59 rule 13 of the RHC applied to an application for stay of taxation pending appeal against the interlocutory order, and “[even] if that rule does not apply, the Court should adopt principles applicable thereunder when determining these applications”.[9]  Plainly, Order 59 rule 13(1)(a) of the RHC contemplates that there is in fact a pending appeal against the interlocutory order, but here there is no application for extension of time to apply for leave to appeal against the 25/3/13 and 30/10/13 Orders let alone any pending substantive appeal against such orders.

35.  In my view, this is enough to dismiss the Appeal. But in case I am wrong, I will assume that intention to appeal is sufficient (but I disagree), and go further to consider the legal principles for stay of taxation.

V.  Stay of taxation

36.  It is plain from Order 59 rule 13 of the RHC that the jurisdiction to grant stay of execution of an interlocutory order rests with the court below (ie Poon J in the present case) and/or the CA, and not with the taxing master whose duty is to tax the bill and not to determine liability.  In the circumstances, even if there is a pending appeal against an interlocutory order (of which there is none in the present case), it is not a ground for the taxing master to stay taxation of costs pending such appeal in the absence of a stay of execution by the judge granting such interlocutory order and/or by the CA. [10]

37.  Indeed, it is not even a sufficient ground for adjourning the taxation of costs under Order 62 rule 26(1) of the RHC, which provides that “[the] taxing master by whom any taxation proceedings are being conducted may, if he thinks it necessary to do so, adjourn those proceedings from time to time”.  As explained by DHCJ To (as he then was) in Plus Lucky Limited v Chin Yuk Lun Francis & anor,[11] an application to adjourn the taxation hearing to a date after a pending appeal against an interlocutory order on the basis that (a) the appellant thought he/she had good grounds of appeal based on counsel’s advice and/or (b) the costs of taxation would be wasted if his/her appeal should succeed was in fact a disguise for an application to stay taxation pending appeal, and it was “not an adjournment for the expedient and efficient disposal of the taxation” permitted under Order 62 rule 26 of the RHC.  The learned judge rejected submissions that “the adjournment was not in effect an application for stay of execution.  The taxing master has no jurisdiction to adjourn the taxation hearing pending appeal under Order 62, rule 26(1) of the RHC ……”

38.  This is borne out by the authorities.  In Re Schindler (Hong Kong) Ltd & ors,[12] Kaplan J refused an order for consolidation and ordered D to pay S’ costs of the application.  D appealed against the order, and such appeal was due to be heard.  S obtained an appointment for taxation of their costs pursuant to the order.  The master adjourned the

taxation sine die until after the appeal had been disposed of.  Kaplan J noted “the fact remains that the appeal does not act as a stay of the order and no application for a stay was made to me or to the Court of Appeal” (my emphasis).  The learned judge held that it would be an improper exercise of discretion for the master to adjourn the taxation which in effect operated as a stay of execution of his order.  He allowed the appeal and overturned the master’s decision to adjourn the taxation hearing on the basis of S’ undertaking not to enforce the cost order when taxed until after the determination of the appeal.

39.  In Lo Wo & ors v Cheung Chan Ka Joseph & anor,[13] the 2^nd defendant lodged notice of appeal to the CA against a judgment and costs order in favour of the plaintiff, and applied to the master to stay the taxation hearing because of the appeal.  Waung J held that the master rightly dismissed the application “because, as is well-known, an appeal normally does not operate as a stay and the court does not easily deprive a successful litigant from the fruit of the judgment.  In fact there was, earlier on 9 June 2000, an application by counsel for the 2^nd defendant for a stay of enforcement of the judgment which [the learned judge] refused” (my emphasis).  The master proceeded with the taxation and when it was not completed he adjourned to date after the hearing of the appeal.  Waung J held that:

“…… It seems to me that the master was entirely wrong in that order because by so doing, he was in fact granting a stay of the taxation hearing or depriving the plaintiffs the right to the normal taxation hearing which follow an order for costs. Whether one calls the order bad on the basis of lack of jurisdiction because he has no jurisdiction to grant the stay or wrongful exercise of discretion, seems to me does not matter here very much. It was the wrong order to make and he should not have made it. He should simply order the date to be adjourned to the earliest possible date to be fixed, so that the taxation can be completed. It seems to me that he was persuaded, whether by the difficulty of the taxation or by other matters, to make the erroneous order.” (my emphasis)

40.  In Plus Lucky Limited, the defendants appealed against the order of Master Bharwaney (as he then was) adjourning taxation proceedings pending the hearing and determination of the respondent’s appeal against the order of DHCJ Woolley dated 12 July 2002 ordering her to pay the defendants’ costs in the action that was instituted by the plaintiff.  DHCJ To (as he then was) held that:

“11. The taxing master’s duty is to tax the bill of costs. His role is to assess the quantum of costs and not to determine liability which is a matter for the trial judge. The discretion to adjourn the taxation proceedings may only be exercised if he thinks it necessary to do so i.e. to do so for the expedient and efficient disposal of the taxation. Hence, to adjourn taxation proceedings pending appeal solely for the purpose that in the event that the appeal is allowed, the taxation proceedings can be dispensed with, clearly falls outside the realm of necessity within which the taxing master may exercise his discretion to adjourn the taxation proceedings. To hold otherwise would be to give the taxing master the jurisdiction to grant stay of execution, a power which has been reserved to the trial judge or the Court of Appeal under Order 59, rule 13 and which has never been intended to be delegated to a taxing master. For a taxing master to adjourn taxation proceedings pending appeal would amount to an usurpation of the trial judge’s or the Court of Appeal’s function to rule on applications for stay, if applied for; or would amount to a by-pass of the trial judge or the Court of Appeal, if no application has been made. Thus, in my view, a taxing master has no jurisdiction under Order 62, rule 26(2) to adjourn taxation proceedings which operates as a stay of execution pending appeal.” (my emphasis)

41.  In summary, the above authorities highlight two matters.  First, there is necessarily a pending appeal against the interlocutory order (without which, in my view, there is no valid reason to ask for a stay).  Secondly, where there is no application to the judge who made the interlocutory order or to the CA for stay of execution of such order, or where such application for stay of execution has been dismissed, the taxing master has no jurisdiction (or should not exercise his/her discretion) to stay taxation proceedings pending appeal against such order.  Whilst the taxing master has power to adjourn the taxation proceedings under Order 62 rule 26 of the RHC, to do so for the purpose of awaiting the outcome of any pending appeal is a wrong exercise of discretion since it amounts to usurpation of the jurisdiction to stay execution which is reserved to the judge below or the CA and not delegated to the taxing master.

42.  It has been suggested that the court has inherent jurisdiction to stay/adjourn a taxation hearing, but such jurisdiction has to be carefully exercised and only upon good cause being shown for the stay/adjournment.  “The burden of showing good cause rests squarely on the shoulders of the party seeking to stay the taxation hearing.  What constitutes a good cause has to be determined according to the particular circumstances of the case.  There can be no hard and fast rule.  Essentially, it involves balancing two principles: firstly, the principle that a successful litigant should not be deprived of the fruits of his litigation, and secondly, the principle that there must be justification for putting at risk the considerable time to be spent and the large amount of costs to be incurred on the taxation which would be wasted in the event that the appellant is successful on appeal.”[14]

43.  As regards the first principle that the successful litigant should not be deprived of the fruits of his litigation, DHCJ To (as he then was) said that “[an] intending appellant who wishes to escape from the application of this general rule or who does not wish to put at risk the costs of taxation which may be wasted in the event of his successful appeal should apply to the [judge below] or to the [CA] for stay of execution pending appeal pursuant to Order 59, rule 13.  That rule gives the [judge below] or the [CA] the discretion to order a stay of execution and to impose terms on which a stay is ordered.  That is the first machinery an appellant should invoke to protect his interest.  ……” (my emphasis)[15]

44.  As regards the second principle that the court should take procedural steps which will avoid the expenditure of unnecessary time and expense involved in an unnecessary taxation of costs, which principle is one of practicality, common sense and good case management, “…… it must be subject to the first principle which is concerned with more substantive legal principles such as the taxing master’s jurisdiction, the successful party’s right to the fruits of his success and the importance that a taxing master should not be allowed to usurp the function of the higher court to rule on applications for a stay” (my emphasis).[16]

45.  DHCJ To (as he then was) held that in considering what constitutes good cause in light of the two principles, the merits of the appeal against the interlocutory order should be ventilated before the judge on an application for stay of execution and is clearly irrelevant to the consideration of whether there is good cause for adjourning/staying taxation proceedings pending appeal.  The proper approach has been set out in Plus LuckyLimited in which DHCJ To (as he then was) said:

“17. I agree with the view of Keith JA.[17] It is impracticable for a taxing master sitting on a taxation hearing to consider merits of a pending appeal. Nor is it practicable for a judge hearing an appeal from the master’s order to embark on such an exercise. I am not over emphasizing the superiority of the judge to the master. Putting the situation to the extreme, assuming that an appellant was unsuccessful in the [CA] and he obtained leave to appeal to the Court of Final Appeal in view of the amount of claim involved, it is not up to the taxing master to refuse to proceed with taxation because in his view the appellant has a strong and arguable case, that it is likely that the [CA] has erred, that the taxation proceedings involve excessive complexity and that it is likely that these costs of taxation will be wasted. These are matters which should be properly ventilated before the [CA] on an application for stay of execution. If the appellant does not see fit to apply for stay of execution, it is not for the taxing master to rush to his rescue. Based on the limited jurisdiction of a taxing master in a taxation hearing, merits of the appeal should be ignored by the master in considering whether to stay taxation hearing.

18. As this involves balancing the wasted costs on the one hand and the delay to the successful litigant kept out of his money on the other, the conduct of the parties, in particular the delay on the part of the appellant in prosecuting the appeal is a critical consideration. In Re HY & HT Lee Bros and Co Ltd, Keith JA indeed considered delay on the part of the appellant in prosecuting his appeal a critical factor. Given the limited jurisdiction a taxing master has in adjourning a taxation hearing as opposed to the wider jurisdiction of the trial judge or the [CA] in granting a stay of execution, I think the complexity of the taxation, the amount of time and costs involved in the taxation and the opposing party’s ability to pay the wasted costs are factors which may also be taken into account in the balancing exercise. The list of factors is not exhaustive. Much depends on the facts of the individual case. But merits of the appeal is clearly irrelevant. That should be ventilated before a judge on an application for stay of execution.” (my emphasis)

46.  It is plain and obvious from the above legal principles that any stay/adjournment of taxation proceedings envisages a pending appeal against the interlocutory order without which there is no valid reason to contemplate any stay/adjournment of the taxation proceedings that are derived from the provision on costs in the interlocutory order.  The reference/reliance on Order 59 rule 13 of the RHC in the above authorities is apposite.  Here, there is no such appeal, and for reasons explained in Part IV above, the Appeal is liable to be dismissed, and it is unnecessary to consider the above legal principles.

47.  But even if intention to appeal is sufficient and the above legal principles are applicable (which I disagree), by the Stay Summons the plaintiff had already applied to the court below (ie Poon J) in June 2013 for stay of execution of the 25/3/13 Order (including the 1^st Cost Order) pending determination of any application for leave to appeal against such order to the CA and, if leave was granted, pending the determination of the appeal.  Poon J dismissed such application by the 30/10/13 Order for the following reasons:

(a)  “…… 原告人直至今天仍沒有申請上訴許可針對[the 25/3/13 Order] 提出上訴。如果並無上訴許可申請，此暫緩執行命令的申請，看來是站不住腳”;

(b) “但無論如何，即使有上訴許可申請，法庭要考慮是否批准暫緩執行命令時，要考慮上訴理據是否充份，是否有合理的勝訴機會。聽過原告人口頭陳述，及看過她呈交的資料和陳詞，再考慮到[the 25/3/13 Order]和[the Decision]，本席認為原告人並沒有任何合理上訴的機會”;

(c)  “至於原告人提到的第二點理由，即如果不暫緩執行命令，上訴就會變成無意義，本席並不同意，因為現在餘下需要處理的主要是訟費問題而訟費的決定並不會影響到上訴或令上訴變成無意義。就算不暫緩執行命令，上訴仍可繼續進行，如果上訴庭不同意[the 25/3/13 Order]，將[the 25/3/13 Order]撤銷，即使沒有暫緩執行[the 25/3/13 Order]，這不會影響上訴，令上訴變成無意義”.

48.  As a result, there is no stay of execution of the 25/3/13 Order (including the 1^st Cost Order).  In face of the dismissal of the Stay Summons, the plaintiff cannot try her luck again by attempting to stay taxation, which is nothing more than an attempt to bypass or a collateral attack against the 30/10/13 Order that had already dismissed the application for stay of execution of inter alia the 1^st Cost Order, and to date there is no application for extension of time to apply for leave to appeal against the 30/10/13 Order and/or no renewed application for stay of execution against the 25/3/13 Order to the CA by the plaintiff.  In such circumstances, it is not for the taxing master or this court upon the Appeal to consider the merits of any appeal against the 25/3/13 and 30/10/13 Orders, which had not even been made.

49.  According to the Summons, the Affirmation and her written submissions, the plaintiff claimed that the DLA had obtained counsel’s opinion that affirmed the merits of her case.  But as DHCJ To (as he then was) said in Plus Lucky Limited, “…… [to] invoke the court’s inherent jurisdiction, the Respondent[18] has the burden of showing good cause for the stay.  The Respondent submitted that as advised by Senior Counsel, she has strong and arguable case on appeal and referred me to the six-page Supplementary Notice of Appeal.  The Supplementary Notice of Appeal demonstrates that this is not the appropriate venue for consideration of merits.  I wholly ignore merits of appeal”.[19] Plainly the merits of any potential appeal cannot constitute a good cause for any stay/adjournment of taxation proceedings (a) in the absence of a pending appeal, (b) in view of the dismissal of the application to stay execution of the 25/3/13 Order, and (c) in the absence of any application to stay execution of the 30/10/13 Order.

50.  In respect of the argument that without a stay an appeal would be rendered nugatory, the supporting affirmation for the Summons gave no detail or evidential support for such contention.  The only real complaint that can be made about the matter proceeding to taxation is that time and costs would be wasted in the event that the plaintiff were be able to (a) obtain time extension to make application for leave to appeal against the 25/3/13 and 30/10/13 Orders, (b) obtain leave to appeal and (c) succeed in the appeal, but as explained by Poon J in the Judgment,[20] the loss in the value of costs or time expended on taxation proceedings would not render any appeal nugatory.  In any event, I have not been given details of the taxation proceedings apart from (a) a bare assertion that the taxation would be complex and (b) the costs/fees claimed by the defendant under the 1^st Cost Order were about $260,000.  The plaintiff did not address on the particulars of complexity of such taxation.  In my view, the taxation of the 1^st Cost Order that involved the Three Summonses for one substantive hearing before Poon J would not be complex, and with the 1^st Cost Order granted in March 2013 and the relevant bill lodged in mid-2013, there can be no doubt that the plaintiff had ample time to prepare for the taxation.

51.  It has been suggested that since the defendant lives overseas, it would be difficult to recover any costs paid to her in case the plaintiff were be able to (a) obtain time extension to make application for leave to appeal against the 25/3/13 and 30/10/13 Orders, (b) obtain leave to appeal, and (c) succeed in the appeal.  The plaintiff in her written submissions suggested that the defendant had left behind some bad debts amounting to $45,000 which had been unpaid since, but such assertion is not supported by affirmation evidence or verified by documentary evidence.  More importantly, the plaintiff has chosen to sue the defendant who happens to live overseas, and if she is dissatisfied with any cost order made in favour of the defendant, it is incumbent upon her to make and progress any application for leave to appeal against such cost order with due expedition.

52.  In my view, any difficulty that the plaintiff now faces is her own making in failing to seek leave to appeal against the 25/3/13 Order or to seek extension of time for such purpose (although she plainly knew of the need or her right to do so),[21] and she cannot rely on her own default to argue there are merits to an appeal which she has not made or there is good cause for deferring taxation and keeping the defendant out of her money.

53.  The plaintiff argued there are reasonable grounds to support an application to the CA for extension of time to appeal against the 25/3/13 and 30/10/13 Orders because she applied for legal aid on 27 March 2013 (ie one day after the Decision was released to her), and such application was pending processing until the end of 2013 when counsel’s opinion was received.  Legal aid was granted in early January 2014 for the main action because her case has merits, and hence there is reasonable explanation for the delay.  She claimed that instead of waiting for legal aid for her intended appeal which is still being considered, she “would start to prepare for the appeal as soon as possible instead of just waiting for result”.

54.  Section 15 of the Legal Aid Ordinance Cap 91 provides as follows:

“(2) Where an action has been commenced or where an appeal has been lodged in respect of any proceeding and any party, …… makes an application for legal aid, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court in which the action is commenced or in the court in which the appeal is lodged, as the case may be, a memorandum of such notification.

(3) Where any party to an action, …… makes an application for legal aid to prosecute an appeal or proceedings in the nature of an appeal, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court …… against whose judgment or order it is intended to appeal, a memorandum of such notification.

(4) Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run.”

55.  Regulation 7A of the Legal Aid Regulations Cap 91A provides that “[the] period during which any proceedings are stayed by section 15 of the Ordinance shall be 42 days”.  Such legal aid statutory stay is limited to 42 days irrespective whether legal aid has been granted/refused or pending processing.  The plaintiff did not refer this court to any order granting extension of the period of statutory stay.

56.  In the circumstances, taking into account the two LA Application Memo filed on 2 April and 23 May 2013 respectively, the 42‑day legal aid statutory stay expired by mid-May 2013 and early July 2013 respectively, and the 14-day deadline for the plaintiff to apply for leave to appeal against the 25/3/13 Order expired latest by late July 2013.  In my view, the plaintiff well knew there was no stay after the expiry of the statutory period otherwise it would have been unnecessary for her to seek stay of execution of the 25/3/13 Order by the Stay Summons, and the court would not have been in a position to hear the Stay Summons in October 2013.  More importantly, Poon J by the Decision had reminded the plaintiff of the absence of any appeal against the 25/3/13 Order.

57.  Likewise, even taking into account the LA Application Memo filed on 4 November 2013 (ie shortly after the 30/10/13 Order), the 42-day statutory stay expired by mid-December 2013, and the 14-day deadline for the plaintiff to apply for leave to appeal against the 30/10/13 Order expired by the end of December 2013.  In my view, the plaintiff well knew that the legal aid statutory stay had expired and that she should have taken steps to pursue any appeal in relation to the 25/3/13 and 30/1/13 Orders irrespective of the outcome of any legal aid application.  The fact that the plaintiff was granted legal aid for the main action does not mean that legal aid should likewise be granted for any appeal against the 25/3/13 and/or 30/10/13 Orders.  Here, the plaintiff acting in person all along has been active in conducting her litigation and making applications to the court, and was well aware of the need/right to appeal against the 25/3/13 and 30/10/13 Orders, and she all along claimed she had viable grounds of appeal and good reasons for extension of time for leave to appeal.  The plaintiff has not satisfactorily explained why she could not have applied for leave to appeal in person (as she now intimates she may do) earlier.

58.  In my view, on the issue of delay, which DHCJ To (as he then was) in Plus Lucky Limited said was “a critical consideration”,[22] the balance is against the plaintiff.  She cannot complain that the risk of wasted time and costs of taxation when such risk arose out of her failure to apply for leave to appeal or extension of time to appeal against the 25/3/13 and 30/10/13 Orders with promptitude or at all.

59.  In the end, none of the issues is resolved in favour of the plaintiff, and she has failed to discharge her burden in showing good cause, especially bearing in mind that the second principle is subject to the first principle,[23] and under the first principle Poon J by the 30/10/13 Order and the Judgment had already refused to stay execution of the 25/3/13 Order.

60.  Further, a stay would cause delay to the taxation proceedings, and I cannot say that such delay would not cause any prejudice to the defendant, especially when the stay was sought for an indefinite period “upon appeal against [the 25/3/13 and 30/10/13 Orders]” when there are no such appeals as yet or at all.

61.  In my view, the plaintiff in effect was seeking a second bite of the cherry by again seeking a stay of execution of the 1^st Cost Order, which had been dismissed by Poon J.  The taxing master had no jurisdiction to grant any stay of the 25/3/13 Order which was reserved to Poon J being the judge who had dealt with the Three Summonses, or to grant an adjournment under Order 62 rule 26 of the RHC as the application was outside the realm of necessity within which he/she might exercise his/her discretion.  Even if the taxing master had such discretion as part of the court’s inherent jurisdiction, the discretion should not have been exercised in favour of the plaintiff since she failed to show good cause.  The first principle fell away since there was no appeal against the 25/3/13 and 30/10/13 Orders and the plaintiff’s application for stay of execution by the Stay Summons had been dismissed, and the second principle (which in any event was subject to the first principle) also fell away for reasons explained above.

62.  In the absence of any pending appeal against the 25/3/13 and 30/10/13 Orders, with Poon J’s dismissal of the plaintiff’s application for stay of execution of the 25/3/13 Order (including the 1^st Cost Order) under the Stay Summons, and in the absence of any application for stay of execution of the 30/10/13 Order (including the 2^nd Cost Order), it would be inappropriate to consider the merits of any appeal.  I reject the plaintiff’s suggestion that Master Levy erred by ignoring the invalidity of the Islamic Marriage and/or the suitability of Order 14A of the RHC for determination of this issue.  Master Levy was correct in refusing the plaintiff’s application by the Summons to stay taxation “upon appeal against [the 25/3/13 and 30/10/13 Orders]”.  This is again sufficient for me to dismiss the Appeal.

VI.  Stay of execution

63.  As explained in Part V above, the dismissal of the application for stay of the 25/3/13 Order (including the 1^st Cost Order) under the Stay Summons and the absence of application for stay of execution against the 2^nd Cost Order meant the merits of any potential appeal against the 25/3/13 and 30/10/13 Orders were irrelevant.  Even if the merits of any such potential appeal were relevant (but I disagree), Poon J in the Decision had already considered such merits, and found the plaintiff’s grounds for such potential appeal against the 25/3/13 Order wanting.[24]  It is not for this court to revisit the matter which had already been determined.

64.  Even if I am wrong and have to consider afresh whether to grant stay of execution (but I disagree), I agree with Poon J (as he explained in the Decision[25]) and Chung J (as he said in Re HY & HT Lee Brothers & Company Limited[26]) that the first consideration is whether there is any pending appeal since the starting point is Order 59 rule 13 of the RHC.[27]  Here, to date there is none (not even an application for extension of time to apply for leave to appeal), and one therefore does not even need to consider whether the plaintiff can justify a stay pending appeal with good reasons.

65.  Even if I am again wrong and have to consider whether good reasons exist to justify a stay any pending potential appeal (but I disagree), I now turn to the applicable legal principles.  Generally, even if there is a pending appeal (but there is none here), such appeal does not operate as a stay on the order appealed against, and the successful party is not to be deprived of the fruits of his success.  The relevant principles guiding such exercise of discretion of stay pending appeal (but here there is no pending appeal) are summarised in Star Play Development Ltd v Bess Fashion Management Co Ltd,[28] and I highlight the following points:

(a)  in determining the question whether or not an appeal would be rendered nugatory, irrespective of the nature of the order or judgment appealed from, the court will require evidence as to why the levying of execution will result in the appeal being rendered nugatory, eg an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal;

(b)    where it is said that the levying of execution would result in grave financial consequences or hardship of the appellant, the court will require good evidence to support this contention, and a bare assertion is unlikely to meet with much sympathy where more substantial evidence is available;

(c)  so far as the merits of the appeal is concerned, if the appellant can demonstrate the appeal has strong merits, a stay is readily granted, but conversely if the court is not satisfied that there exist arguable grounds of appeal (ie an appeal with reasonable prospects of success), no stay of execution will be granted; it should also be noted that the existence of merely an arguable appeal could not by itself amount to sufficient reason to justify a stay.

66.  Whilst (as explained above) the CA has power to extend time to apply for leave to appeal and to grant leave even where leave has not been applied for in the first instance,[29]  it is entirely in the discretion of the CA (not the court below) to grant or refuse such extension.  The factors which are normally taken into account in deciding how to exercise the discretion are: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing is extended; and (d) the degree of prejudice to the potential respondent if leave is given.[30]  Here, since the plaintiff had not observed the procedural requirements in the first instance (ie she is more than 10 and 5 months out of time for appeal against the 25/3/13 and 30/10/13 Orders respectively), strong grounds must be shown on any direct application to the CA particularly at such a late stage.[31]

67.  Even if I should consider the merits of any possible appeal (which I disagree), I need only form a tentative view of the prospects of success of appeal, and the application for stay should not be allowed to become a test run of any substantive appeal.[32] 

68.  One of the main arguments by the plaintiff (as alluded to in Summons itself and in the Affirmation) is that “counsel opinions have been sought [by the DLA] with merits found”.  However, at the Hearing

the plaintiff maintained legal professional privilege over the contents of such counsel opinion, which opinion has not been disclosed.  The court can only consider the arguments raised by the plaintiff without the benefit of such counsel opinion.

69.  The plaintiff focused her arguments on the 28/9/12 Summons and claimed that the present action was fit for summary disposal pursuant to Orders 14 and 14A of the RHC.  She maintained the contentions in paragraph 9 above, which she claimed would lead to a determination of the following two issues in her favour under Order 14A of the RHC, ie the Marriage was invalid, and (premised on such finding in her favour) the Adoption was invalid, and on such basis she sought summary judgment under Order 14 of the RHC against the defendant.

70.  The plaintiff argued that the Marriage being an Islamic marriage was necessarily invalid under Hong Kong law as it did not fulfil the statutory requirements under Hong Kong marriage legislation, hence Madam Ng was not the lawful spouse of the Deceased, which meant the Adoption was invalid since the defendant did not fulfill the statutory requirement under the Adoption Ordinance Cap 290 of having two spouses for her adoptive parents, and which (together with the fact that the defendant did not satisfy the live-in requirement under section 21 of the Ordinance) in turn rendered the 1979 Nomination invalid.

71.  The plaintiff submitted that the question of whether or not the Marriage was invalid was a pure point of law that ought to be resolved under Order 14A of the RHC.  But Poon J held that such issue was not suitable for determination under Order 14A of the RHC in that (a) the validity of the Marriage (and there is no dispute that it was an Islamic marriage) was to be determined by Islamic law which called for expert evidence but none was proffered by the plaintiff, and (b) the validity of the Marriage was also fact sensitive involving the circumstances of how it was actually celebrated at the time, consequently the second issue as to the validity of the Adoption was not appropriate for determination under Order 14A of the RHC, and it also followed that the plaintiff’s application for summary judgment under Order 14 of the RHC must fail.

72.  On the primary issue of the validity or otherwise of the Marriage, the defendant contended that the Marriage was entered into by the Deceased and Madam Ng in accordance with their personal law, ie the law of Islam, and hence it was a valid marriage.  I agree with Poon J that expert evidence is required,[33] and such need for expert evidence is borne out by the plaintiff’s own reliance on a published article by the Incorporated Trustees of the Islamic Community Funds of Hong Kong, which trustees she claimed are expert authority on Islamic affairs in the local context, and also other learned texts.  

73.  The plaintiff also made serious complaints as to the defendant’s failure to satisfy the live-in requirement under section 21 of the Ordinance.  However, it is the defendant’s contention that this was irrelevant because before Madam Ng passed away and the 1979 Nomination took effect, the Society was already dissolved on 12 March 1998 whereupon any right to succeed to Madam Ng’s membership became a chose in action that fell under her intestate estate which only the defendant was entitled to succeed.  The defendant also relied on limitation defences.  I agree with Poon J that these are matters which ought to be properly canvassed at trial, and not determined by summary disposal and/or striking out applications.

74.  Since the plaintiff was not able to demonstrate strong grounds to challenge Poon J’s decision on the primary issue of whether or not the Marriage was amenable to Order 14A determination, it follows there are no strong grounds to challenge the secondary issue as to the validity or otherwise of the Adoption and/or to support the summary judgment application, and the various issues of law and fact identified in paragraph 32-33 of the Decision should properly be ventilated at trial.  I must point out the suggestion that the plaintiff’s claim has some merits, which claim may ultimately find favour with the court at trial, does not mean she is able to satisfy the more stringent threshold required for summary disposal under Orders 14 and 14A of the RHC or for striking out pleas in the D&C under Order 18 rule 19 of the RHC.

75.  Having carefully considered the plaintiff’s other arguments in her supporting affirmation, in the grounds of appeal in respect of the Appeal, and in her written and oral submissions in relation to her challenge against the 5/10/12 and 30/10/12 Summonses, the plaintiff was essentially repeating the arguments set out in her SoC and R&DC and used in the course of the hearing of the Three Summonses before Poon J, following which the 25/3/13 Order was made.  I am not persuaded there had been arguable errors of law that suggest any appeal against the 25/3/13 Order can be classified as having a high likelihood of success.  Indeed, according to Poon J, there were no reasonable prospects of success, [34] which is the threshold for granting leave to appeal against interlocutory decisions.[35]  In examining whether the plaintiff has demonstrated other factors that may tilt in her favour, I also refer to the discussion in paragraphs 47 and 50-60 above, and find that on the issues of delay and prejudice the balance is against the plaintiff.

76.  As regards the 30/10/13 Order, a stay of execution is a discretionary relief.  The discretion whether or not to grant such relief is vested in the judge who heard the application.  As explained by Kwan JA in Excel Courage Holdings Limited & anor v Wong Sin Lai also known as

Wong Sin Lei and formerly known as Wong Tam Yee & ors,[36]

“55. ……. The appeal court must defer to the judge’s exercise of his discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The function of the appeal court is initially one of review. It will not disturb the judge’s exercise of discretion unless the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised; or he had wrongly taken into account irrelevant matters or failed to take into account relevant matters; or his exercise of discretion was plainly wrong. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to F; The Abidin Daver [1984] 1 AC 398 at 420A to C).”

As pointed out by Poon J in the Judgment, the fact that as at 30 October 2013 there was no pending appeal against the 25/3/13 Order went a long way to show there was little basis for a stay of execution.[37]

77.  All in all, I am unable to share the view that there are good prospects of the 1^st and/or 2^nd Cost Orders being overturned on any potential appeal.

VII.  Conclusion

78.  I am given to understand that after the Hearing and pending the handing down of this Decision, the taxing master proceeded with the taxation hearing for the taxation of costs in respect of the 1^st Cost Order on 26 May 2014.  Whilst I would have thought the fact that the Appeal having been heard and pending decision by this court might have constituted good cause for adjourning the taxation hearing pending the outcome of the Appeal (but not pending the outcome of any potential appeal yet to be made in respect of the 25/3/13 and 30/10/13 Orders), the taxing master’s decision nevertheless to proceed with the taxation hearing on 26 May 2014 did not prejudice the plaintiff in view of my conclusion in respect of the Appeal.  Accordingly, I dismiss the Appeal.  I also grant a costs order nisi that costs of and occasioned by the Appeal (including all costs reserved, if any) be paid by the plaintiff to the defendant to be taxed if not agreed.

HCAP 19/2011

香港特別行政區

高等法院原訟法庭

遺囑認證訴訟2011年第19號

判決書

1.  2013年3月25日，本席頒下命令，撤銷原訴人根據《高等法院規則》第14號命令、14A號命令及18號命令第19條提出的申請，批准許被告人剔除原告人的申索書及回應書和反申索答辯書部分內容，並且頒下訟費命令(“該命令”)。

2.  原告人現申請要求暫緩執行該命令，直至等候她申請上訴許可，或者如果上訴許可批准的話，直至等候上訴庭聆聽其上訴後作出決定為止。

3.  本席首先要指出，原告人直到今天仍沒有申請上訴許可針對該命令提出上訴。如果並無上訴許可申請，此暫緩執行命令的申請，看來是暫不住腳。但無論如何，即使有上訴許可申請，法庭要考慮是否批准暫緩執行命令時，要考慮上訴理據是否充分，是否有合理的勝訴機會。聽過原告人口頭陳述，及看過她呈交的資料和陳詞，再考慮到該命令和本席的判詞，本席認為原告人並沒有任何合理上訴的機會。

4.  至於原告人提到第二點的理由，即如果不暫緩執行命令，上訴就會變成無意義，本席並不同意，因為現在餘下需要處理的主要是訟費問題而訟費的決定並不會影響到上訴或令上訴變成無意義。就算不暫緩執行該命令，上訴仍可繼續進行，如果上訴庭不同意該命令，將該命令撤銷，即使沒有暫緩執行該命令，這不會影響上訴，令上訴變成無意義。因此，本席認為暫緩執行命令亳無理由，所以駁回原告人的申請。

（法官與雙方討論有關訟費申請事宜）

5.  訟費根據慣常原則來判定。被告人是勝方，原告人是敗方，原告人需要支付被告人訟費；訟費要即時支付，如果雙方不能就訟費金額達成協議，可交由法庭評定。

原告人：無律師代表

被告人：由莫超權律師行延聘的Ms Yvonne Yip律師代表

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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BETWEEN

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D e c i s i o n

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Applications

1.  Before the court are three applications :

(1) the plaintiff’s application for summary of disposal of the action pursuant to Order 14A and Order 14 of the Rules of the High Court;

(2) the plaintiff’s application to strike out certain parts of the defence and the counterclaim (“DCC”);

(3) the defendant’s application to strike out certain parts of the statement of claim (“SOC”) and the reply to defence to counterclaim (“RDCC”);

2.  The background circumstances may be summarized as follows.

Background

3.  Mr Abdool Kadar Omar (“the Deceased”) was an Islam.  He and Madam Harmidar Ng Yuk (“Madam Ng”) celebrated their marriage at a mosque in Hong Kong on 19 April 1944 (“the Marriage”).

4.  The defendant was born on 7 April 1951.  She was not the natural daughter of the Deceased or Madam Ng.  Since 17 January 1952, she had been living with the couple.  By adoption order dated 19 April 1960 (“the Adoption Order”), the Deceased and Madam Ng formally adopted the defendant as their daughter (“the 1960 Adoption”).

5.  In about 1954, the Deceased had a relationship with a Madam Wong Miu Mee (“Madam Wong”).  She bore him three children, Andy, the plaintiff and Lucy.

6.  On 16 February 1957, United Co-operative Building Society Limited (“the Society”) was registered.  The Deceased was registered as a member.  The Society owned a Government Housing Scheme.  It conferred on the Deceased, as member, exclusive right and possession of 3/F, 170 Sai Wan Ho Street, Hong Kong (“the Property”).

7.  Section 17 of the Co-operative Societies Ordinance, Cap 33 (“CSO”) provides :

“17. (1) On the death of a member, a registered society may transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such persons as may appear to the committee to be the heir or legal representative of the deceased member, or may pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member’s share or interest, as ascertained in accordance with the rules or by-laws :

Provided that -

(a) …

(b) in the case of a society with limited liability, the society may transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and by-laws for membership of the society, or on his application within six months of the death of the deceased member to any person specified in the application who is so qualified.”

8.  Section 21 of the CSO further provides :

“21. In order to be qualified for membership of a co-operative society a person, other than a registered society, must -

(a) have attained the age of 18 years;

(b) be resident within or in occupation of land within the society’s area of operations as described by the by‑laws.”

9.  Under Clause 7 of the By-Laws of the Society, a member may nominate in writing either the spouse or a parent or descendant to be his beneficial successor in the event of his dying or becoming a lunatic.

10.  By a nomination in writing dated 12 May 1960, the Deceased nominated Madam Ng to be his beneficial successor to his membership of the Society (“the 1960 Nomination”).  The Deceased died on 5 December 1977.  Pursuant to the 1960 Nomination, Madam Ng succeeded the membership of the Deceased with the Society and was so registered on 2 January 1978.

11.  On 2 January 1979, Madam Ng nominated the defendant as her beneficial successor to her membership with the Society (“the 1979 Nomination”).

12.  The Society was dissolved on 12 March 1998.  On 25 April 1998, Madam Ng passed away.

13.  It is not in dispute that the plaintiff has been living at the Property since 1960.  She commenced the present proceedings in July 2011.  Mr Chong, for the defendant, told me at the hearing that because of the present proceedings, the liquidator of the Society appointed under section 41 of the CSO has not taken any step to deal with the interest in the Property.

Pleadings

14.  The SOC is not easy to follow.  Stripped to its bare essentials, the plaintiff’s pleaded case runs like this.

15.  First, the plaintiff is entitled to succeed to the estate of the Deceased, derived from his membership with the Society, in her capacity as his heir or legal representative.

16.  Second, by reason of various matters including what effectively are legal submissions, the Marriage was invalid.  Since the Marriage was invalid, Madam Ng was not the Deceased’s spouse.  The 1960 Nomination was therefore invalid.  Madam Ng should not have been registered as a member of the Society in January 1978.

17.  Third, because Madam Ng was not the Deceased’s spouse, they could not have satisfied the statutory requirement of section 5(2) of the Adoption Ordinance, Cap 290, namely, that the adoptive parents must be two spouses.  The 1960 Adoption was therefore invalid.

18.  Fourth, since the 1960 Adoption was invalid, the defendant was not Madam Ng’s adopted daughter legally.  The 1979 Nomination was therefore invalid.

19.  Fifth, the defendant made false declaration that she resided at the Property when in fact she has never done so.  She does not satisfy the live-in requirement under section 21 of the CSO to be qualified as a member of the Society.

20.  The plaintiff sought a declaration that the Marriage is invalid, a declaration that the adoption of the defendant in invalid; and an order that a letter of administration of the Deceased’s estate be granted to her and consequential relief.

21.  The defendant pleaded in the DCC that latest by 19 April 1944, Madam Ng had converted to Islam.  The Marriage was entered into in accordance with the personal law of both the Deceased and hers – the law of Islam.  It was a valid marriage.  Alternatively, they had been living together as husband and wife since 1944, the common law presumption of husband and wife applied.  The 1960 Adoption was valid.  The Adoption Order had been registered with the General Register Office on 30 April 1960.  The plaintiff had no locus to challenge the validity of both the Marriage and the Adoption Order.  Alternatively, such challenges are time-barred.

22.  On her interest in the Property, the defendant pleaded that upon the death of the Deceased, Madam Ng was registered as a member of the Society and had since become a member thereof.  Upon the dissolution of the Society, the right to succeed Madam Ng’s membership became a chose in action.  Upon her death, such right became part of her intestate estate which the defendant is entitled to succeed.  The plaintiff’s claim against the defendant’s interest in the Property is time-barred any way.

23.  The defendant further alleged that the plaintiff had been allowed to stay at the Property for free because of the blood and family ties between the parties.  By service of the pleadings, she revoked the plaintiff’s licence to stay at the Property and counterclaim for delivery of vacant possession of the Property by the plaintiff within 30 days.

24.  In the RDC, the plaintiff repeated quite extensively what she had already pleaded in the statement of claim and made reference to some wholly irrelevant matters.

25.  I now deal with the three applications in turn.

Application for summary disposal

26.  By the Order 14A application, the plaintiff sought a determination of two issues :

(1)     that the Marriage was invalid (“the 1^st Issue”); and

(2)     that the adoption of the defendant did not fulfill the statutory requirement of two spouses under section 5(2) of the Adoption Ordinance, Cap 290 (“the 2^nd Issue”).

The 2^nd Issue is predicated on a finding in respect of the 1^st Issue in her favour.

27.  Acting on the basis that the court would agree with her on the Order 14A application, the plaintiff then sought summary judgment under Order 14.

28.  The plaintiff’s applications under Order 14A and Order 14 are wholly misconceived.  They can be disposed of shortly.

29.  It is common ground that the Marriage was an Islamic marriage and that its validity has to be decided by reference to the Islamic law.  This calls for expert evidence.  The plaintiff has however proffered none.  As a Muslim, she pleaded what she regarded as the applicable Islamic law, which was repeated in her submissions.  I do not think she is qualified or entitled to do so.  Further, I also agree with Mr Chong that the validity of the Marriage is fact–sensitive, involving the circumstances of how it was actually celebrated at the time.  The 1^st Issue is patently not a suitable question of law for determination under Order 14A.

30.  It must follow that the 2^nd Issue is not appropriate for determination under Order 14A either.

31.  It also follows that the plaintiff’s application for summary judgment under Order 14 must fail.

32.  Further, as rightly submitted by Mr Chong, the pleadings have given rise to numerous issues which cannot be resolved without a full trial.  Those issues include :

(1)     Whether the Marriage was valid;

(2)     Whether the 1960 Nomination was valid;

(3)     Whether the 1960 Adoption was valid;

(4)     Whether the plaintiff has locus to challenge the validity of the Marriage and the 1960 Adoption;

(5)     Whether Madam Ng’s registration as a member of the Society was valid;

(6)     Whether the 1979 Nomination was valid;

(7)     Whether upon dissolution of the Society, the 1979 Nomination became a chose in action which was capable of forming part of Madam Ng’s intestate estate upon her death.

33.  Finally, given the allegation of fraud against the defendant, the application for summary judgment also offends the fraud exception in Order 14, rule 2 (b).

34.  This is clearly not a case for Order 14.

35.  For the above reasons, both the plaintiff’s applications under Order 14A and Order 14 are dismissed.

Application to strike out the DCC

36.  The plaintiff did not specify in the summons the relevant parts of the DCC that she wanted to strike out.  She only did so in her affirmation filed in support of the application by grouping them into different categories.  I will deal with them accordingly.

(A) Paragraphs 37 to 40(b), 40(c) and 42

37.  In paragraphs 37 to 40(b), the defendant pleaded the fact that the Deceased and Madam Ng had entered into a valid marriage in 1944, alternatively, the common law presumption of husband and wife applied. In paragraphs 40(c) and 42, the defendant pleaded the fact that she had been lawfully adopted by the Deceased and Madam Ng in 1960. 

38.  The plaintiff contended that the defendant had made mistakes on facts and Islamic affairs, and these paragraphs are made out excuses to get round the laws.  However, the mere fact that the plaintiff considered these facts to be untrue is not a ground for striking out.

(B) Paragraphs 44 and 48

39.  These paragraphs concern the plea of limitation defence.  Plainly, they cannot be struck out.

(C) Paragraphs 12 and 36

40.  In these paragraphs, the defendant denied varies allegations pleaded in the SOC and pleaded certain matters to support her case.  The plaintiff said they should be struck out essentially because she is right in what she has pleaded and that she has the right to claim in her capacities as heiress and descendent.  These are not proper grounds for striking out.

(D) Paragraph 6

41.  In this paragraph, the defendant denied that the plaintiff has any right to claim adverse possession.  The plaintiff said she has the right to claim my home on the legal on the legal basis of adverse possession.  Again, this is not a ground for striking out.

(E) Paragraphs 49 to 50

42.  In these paragraphs, the defendant pleaded that Madam Ng nominated her as nominee to succeed Madam Ng’s membership with the Society, to take effect from Madam Ng’s death, and that the Society was dissolved on 12 March 1988.  The plaintiff said they should be struck out because the nomination was invalid, and that even should it be valid, the defendant failed to fulfil the live in requirement.  These matters have to be determined at trial.  They cannot be struck out.

(F) The Counterclaim in its entirety

43.  The plaintiff wanted to strike out the counterclaim because the defendant has been “living in a dream world” and that the counterclaim is unbelievable.  That assertion is not a ground for striking out.

(G) Paragraphs 8, 15 and 17

44.  The plaintiff wanted to strike out these paragraphs because they are false.  But again, it is a matter for trial and not striking out.

45.  The plaintiff’s application for striking out is entirely misconceived.  It is dismissed accordingly.

Application to strike out the SOC

46.  The defendant wanted to strike out :

(1) In the SOC :-

(i)  paragraphs 3, 4, 7, 14, 15, 27‑30, 42(ii)‑42(iv), 42(vi)‑(xi), 43(ii)‑43(viii), 43(x)‑(xii), 44(ii)‑(xi), 45(ii)‑(iv), 45(v)(a),45(vi), 45(vii)(a)-(b),45(viii)-(xi) (“Category 1”);

(ii)  paragraphs 34-40, 44(x), 46-50 (“Category 2”); and

(2) The RDC in its entirety, save for paragraphs 35, 42, and 45 (“Category 3”).

47.  Mr Chong submitted that Category 1 contains assertions of law or legal arguments, rather than assertions of facts.  As such they should not be included in the SOC.  In particular :

(1) Paragraph 3 pleads the “governing legislative instruments”;

(2) Paragraph 4 pleads the “specific legal requirements”;

(3) Paragraph 7 pleads general principles of equity;

(4) Paragraphs 14 and 15 are the plaintiff’s interpretation of the “governing legislative instruments”;

(5) Paragraphs 27 - 30 are the plaintiff’s legal arguments as to the application of the “governing legislative instruments”

(6) Paragraph 42(ii)-(iii) are the plaintiff’s elaboration of Islamic marriage;

(7) Paragraph 42(iv) refers to the plaintiff’s own research on the history of licensed venues for Islamic marriages in Hong Kong;

(8) Paragraph 42(vi)-(ix) are the plaintiff’s elaboration on the law on marriage in Hong Kong during the war period, customary marriage, and modern marriage and her legal arguments on how should the law be applied in the present case;

(9) Paragraph 42(x) is the plaintiff’s submission on how Islamic law should apply in the present case;

(10) Paragraph 42(xi) is the plaintiff’s submission and assertion that Islamic law recognized the marriage of the Deceased and Madam Ng, and citing a published article of the Chief Imam of Hong Kong;

(11) Paragraph 43(ii)-(iii) are her submissions on the capacity of Madam Wong as surviving spouse and concubine;

(12) Paragraphs 43(iv)-(vii) contains the plaintiff’s submissions on the legal requirements of modern marriage and their application in the present case;

(13) Paragraph 43(viii) pleads the law on concubinage, referencing Family Law in Hong Kong by Leonard Pegg;

(14) Paragraph 43(x) is the plaintiff’s submissions on the relevance and strength on the facts stated;

(15) Paragraph 43(xi)-(xii) are the plaintiff’s submissions on Madam Wong’s status of concubine;

(16) Paragraphs 44(ii)-(x) are her submissions on the legal principles concerning adoption law and their application in the context of an Islamic marriage in the present case;

(17) Paragraph 44(xi) are her submissions on the “wish and intention” of the Deceased, and her inclusion of the defendant at the probate application;

(18) Paragraphs 45(ii)-(iv), (v)(a) relate to her submissions on the law on registration of children;

(19) Paragraphs 45(vi) is the citation of Ng Ka Ling v Director of Immigration (1999) 1 HKLRD 315;

(20) Paragraphs 45(vii)(a)-(b), (viii)-(xi) contain the plaintiff’s assertions of various domestic legislations, including the Companies Ordinance, Fatal Accidents Ordinance, the Basic Law, various articles of the International Covenant on Civil and Political Rights, citing the case law of Wong Kam Ying v Man Chi Tai, and Tristam and Coote’s Probate Practice.

48.  I agree with Mr Chong that these paragraphs, which contain law and legal submissions, are objectionable.  They should be struck out.

49.  The ground for striking out Category 2 is irrelevance.

50.  Mr Chong’s analysis of Category 2 is as follows :

(1) Paragraph 34 is the plaintiff’s speculation and opinion on the defendant’s application for probate of Madam Ng’s estate;

(2) Paragraph 35 is a comparison between the size of the defendant’s property in Canada and the Property, and the plaintiff’s opinion that the defendant is aiming at a “windfall profit”;

(3) Paragraph 36 is the plaintiff’s opinion on how much is the Property worth, and how much is the defendant’s costs;

(4) Paragraph 37 is the plaintiff’s speculation on why other families living next to the Property did not sell their flats, and her opinion that developers are uninterested in the building;

(5) Paragraphs 38-39 contain the plaintiff’s view that certain civil servants had made mistakes;

(6) Paragraph 40 is the recollection of an incident involving a teenager Wong Kwan Heung (with no connection to the present case), and Plaintiff’s complaint that the Social Welfare Department failed to help her;

(7) Paragraph 44(x) deals with the plaintiff’s the defendant opinion that has been enjoying social benefits of Canada and has secured provisions from her family after marriage and that she would still enjoy these benefits and security after her adopted status is “cleared off”;

(8) Paragraphs 46-50 state that the plaintiff had spent considerable time and effort in preparing and researching for this case and that she would like to share these materials with the community for educational purposes.  The plaintiff also stated that the Chief Imam of Hong Kong had written an article based on the facts of this case and it has been published in the Hong Kong Law Society’s publications.  Further, the plaintiff opined that the “working styles” of “related civil servants and lawyers” have been questionable.

51.  I agree with Mr Chong.  These are all irrelevant pleas and should be struck out.

52.  On Category 3, Mr Chong submitted that the purpose of a reply is to enable a plaintiff to set up an affirmative case in answer to the facts pleaded by a defendant.  It is wholly unnecessary to repeat in extenso what he has already pleaded in the statement of claim.  I think as a matter of general principle, Mr Chong’s submission must be correct. Here, paragraphs 1 to 6, 9, 12 to 27, the second paragraph of 29, paragraphs 31 to 34 and the 1^st paragraph of 55 of the RDC are very much a reiteration of various paragraphs of the SOC.  (In his written submissions, Mr Chong has complied a very helpful summary setting out the repetitions.)  They should be struck out.

53.  Mr Chong next complained that paragraphs 7, 12, 22, 39, 40, 42 to 45, 47 to 49, 51, 53 to 54, 57 to 59, 61, 64 and 65 of the RDC all contain legal arguments.  They should be struck out.  I agree.

54.  Mr Chong then submitted that paragraphs 10 to 12, 28 to 29, 36 and 37, 60, 62, 66 to 68 of the RDC contain either the plaintiff’s own assessment of the strength of the parties’ case, her opinion and speculation on various matters or her sentiments.  These are all objectionable and should be struck out.  Again, I agree.

55.  Finally, Mr Chong contended that paragraphs 8, 21, 38 to 42, 52 and 2^nd and 3^rd paragraphs of 55 of the RDC contain wholly irrelevant matters.  Having gone through these paragraphs, I agree with Mr Chong.  They should be struck out.

56.  For the above reasons, I allow the defendant’s application for striking out.

Costs

57.  Costs should follow the event.  I order the plaintiff to pay forthwith costs of all the three applications, including all costs reserved, to be taxed if not agreed.

The plaintiff, appearing in person

Mr K M Chong and Ms Yvonne Yip, instructed by C K Mok & Co, for the defendant