Miss LEUNG SO HUNG SIEM v. Mr CARSON WEN AND OTHERS

HCA 121/2017

[2019] HKCFI [2302]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

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D E C I S I O N

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The application

1.  This is the application by the plaintiff (“P”) by Summons dated 11 July 2019 (the “Summons”) for leave pursuant to section 14AA of the High Court Ordinance to appeal against my Decision handed down on 29 March 2018 (“My Decision”).

2.  For background of the case, the facts leading to my Decision, and my reasons for the same, I refer to My Decision.

No explanation for the delay

3.  The present application for leave was only taken out on 11 July 2019.  It is some 15 months out of time.

4.  In the Summons, there is a section which bears the heading “Lapse of time”.  No reason (or at least and with respect no comprehensible reason) for the delay has however been provided therein.

5.  Amongst the many documents which P has filed before me in purported support of her application, there is one which bears the heading “Reasons on the delay of filing the leave application on Mar 29, 2018’s orders by Deputy Judge Keith Yeung on Mar 7, 2018’s appeal hearing Against Nov 17, 2017’s orders by Master KH Hui”.  No discernable reason for the delay has been provided therein.  Towards the end of that document, P said:

“ On July 11 2019, I filed the Summons to apply for further appeal on HCA 121/2017 after receiving the Hon Mr Justice Ng’s final seal order dated July 5, 2019 on HCSD 40/2018.”

6.  I fail to see how an Order in a separate application to set aside a statutory demand has anything to do with the delay.

The proposed appeal has no merits

7.  I have nonetheless considered the Summons.  I have also considered the oral submissions P made to me.  No discernable ground of appeal has been presented to me.

8.  In her affirmation dated 28 August 2019 (one of several filed for the purpose of the hearing before me), P mentioned a request:

“ to withhold the Judgments on Mar 29, 2019 with new evidence and existing evidence supported by Court Rules and Written decision from Judges on hearings related to ‘Perjury’ ‘Fraud’ ‘defamation’ ‘Breach of Contract by leaking of Confidential information and legal costs to be paid by defendants as contracted on April 29, 2015’. ”

9.  Quite apart from the fact that my Decision was handed down on 29 March 2018 but not 29 March 2019, I had difficulty understanding what P was seeking to do.  During the hearing I requested P to explain to me what she meant by seeking to “withhold the Judgments”.  She informed me that she, relying on Order 19 rule 9, sought to set aside or vary My Decision.  She pointed me to a paragraph of a judgment from the Eastern Caribbean Supreme Court, Territory of the Virgin Islands.  In that paragraph, Sancus Group Limited, abbreviated as Sancus Group, was mentioned.  P then said that “Sancus Group” in fact existed.

10.  Order 19 rule 9 concerns setting aside judgments entered in default of pleadings.  It has nothing to do with this application.  I have no power to set aside My Decision or the Order I made in consequence.  The Judgment from the Eastern Caribbean Supreme Court has no relevance to this application or any intended appeal.

11.  I repeat also paragraph 24 of my Decision, that “[P] had before Master K H Hui agreed to the provision of the 2^nd F&B. She did in fact do so.  This appeal, apart from being unmeritorious, also has no real purpose to serve”.

12.  The proposed appeal has no prospect of success.

Conclusion

13.  For the above reasons, I dismiss the application.

Costs

14.  I see no reason why P should not bear the costs of this application.  Ms Chung, counsel for D1, D4 and D5, sought summary assessment.  I have considered the Statement of Costs submitted to me.  In my view, the claimed sum of HK$39,058 is a reasonable and appropriate one.  I order that the total costs of HK$39,058 should be paid by P to the solicitors acting for D1, D4 and D5 within 28 days from the day hereof.

The plaintiff appeared in person

Ms Wallis Chung, instructed by Siao, Wen and Leung, for the 1^st, 4^th and 5^th defendants

HCA 121/2017

[2019] HKCFI 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

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D E C I S I O N

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1.  On 16 July 2018 I heard and determined an appeal brought by the plaintiff against an order made by Master Lui on 26 April 2018 by which the Master struck out the writ and statement of claim. In the written reasons for dismissing the plaintiff’s appeal I recorded that the Notice of Appeal from the Master, which was filed on 23 May 2018, was out of time. I recorded also that no explanation for the delay in making the application had been put in evidence, and that the plaintiff had been made aware in other circumstances of the need to comply with time limits in court proceedings.

2.  Having heard submissions from the plaintiff as to the proposedappeal, I declined to extend time for that appeal.  I also concluded that there was no merit in the proposed appeal and the appeal was dismissed.

3.  On 4 October 2018 the plaintiff served a notice of appeal seeking to appeal against the decision of 16 July 2018, and the Court of Appeal consequently gave consideration to the question as to whether leave to appeal was required; see [2019] HKCA 94; [2019] HKEC 178.  The decision made on 16 July 2018 being an interlocutory order, leave to appeal was required: see section 14AA of the High Court Ordinance and the judgment of the Court of Appeal.  No such leave to appeal having been sought or obtained, the appeal was struck out and dismissed by the Court of Appeal on 8 January 2019.

4.  On 31 January 2019, the plaintiff filed her summons seeking leave “out of time” under section 14AA.  Under that section:

“ (4) Leave to appeal for the purpose of subsection (1) shall notbe granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

5.  Directions were given for an exchange of submissions on the summons with appropriate evidence in support, and providing for the application to be dealt with without a hearing.  Submissions and evidence were exchanged in accordance with the timetable given in those directions.

6.  When an appeal against an interlocutory order is brought within time it is necessary for the court considering the grant of leave to consider the factors prescribed in section 14AA of the High Court Ordinance; namely the prospects of success of the proposed appeal and, if appropriate,whether some other reason exists which, in the interests of justice, supportsleave being granted.  See for example SMSE v KL [2009] 4 HKLRD 125 at [17]. It is trite that the grant or refusal of leave (when the time limits have been complied with) is a matter of discretion, and that therefore circumstances may militate against the grant of leave even when the requirements of section 14AA have been met: see for example Hong KongTelecommunications (HKT) Ltd v Secretary for Commerce and Economic Development[2018] HKCFI 2385; [2018] HKEC 3089.

7.  Order 59, rule 2B provides that an application for leave to appeal against an interlocutory judgement or order is to be made within 14 days from the date of the relevant judgement or order.  More precisely, the rule provides that such an application “may only be made” within that time period.  The power to extend time under Order 3, rule 5(1) or (2) “should not apply to an application for leave to appeal”: see Hong Kong Civil Procedure 2019, 59/2B/2.

8.  As is acknowledged by the plaintiff’s summons the application which is made for leave to appeal is one which is made out of time.  The plaintiff is acting in person, and has pursued, in error, an appeal before the Court of Appeal without leave.  No other factors appear in evidenceto explain the lengthy lapse of time between the decision given in July 2018 and the summons being taken out in January 2019.  That combination of circumstances does not, in my judgement, provide a basis upon which the requirements of Order 59, rule 2B can be avoided by the plaintiff.  In my judgement leave cannot be granted for that reason. 

9.  Further, having considered the application and the evidence relied on, there is no discernible prospect of the plaintiff meting the requirements of section 14AA.  Leaving to one side the repeated failures to comply with time limits the underlying claim which the plaintiff seeks to bring, at least so far as is contained in the Statement of Claim simply discloses no cause of action.  The proposed appeal, in my judgement has no prospect of success, nor is there any other reason why the appeal should be heard.

10.  For the above reasons the plaintiff's application for leave to appeal is dismissed, with costs to the defendants.

HCA 121/2017

[2018] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

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REASONS FOR DECISION

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1.  On 26 April 2018 Master Lui ordered that the writ and the Statement of Claim should be struck out as against all defendants. The hearing on 16 July 2018 was the plaintiff’s appeal against that Order. The appeal was opposed on behalf of the 1^st, 4^th and 5^thdefendants. These are my reasons for the dismissal of the plaintiff’s appeal.

2.  The plaintiff in this matter is a litigant in person making a very substantial money claim against various individuals and organizations.  A writ and a Statement of Claim have been served (on 16 January 2017) and amended (on 7 February 2017).

3.  The plaintiff’s Notice of Appeal was filed on 23 May 2018 (although mis-dated 23 March 2018) and was, therefore out of time.  No explanation for the delay in making the application was in evidence.  The plaintiff, appearing in person, offered an explanation orally, that the delay was through ignorance on her part.  The explanation was, by itself, insufficient, but the factors requiring consideration where an appeal is presented out of the time include the length of the delay and the question of prejudice to the other party, as well as the potential merits of the proposed appeal.

4.  The length of the delay was not great, although the plaintiff had been made aware in other circumstances of the need to abide by time limits.  There was no apparent prejudice to the defendants, and the delay was in the order of two weeks.

5.  In considering the potential merits of the appeal, however, it was apparent that there were none.

6.  It is trite that a pleading may be struck out as disclosing no reasonable cause of action, or as being such as may prejudice or embarrass the fair trial of the action, or as may constitute an abuse of the process of the court.  The principles are well understood, and no repetition of them is necessary here.

7.  The plaintiff’s Statement of Claim is, in large measure, unintelligible.  The defendants have, on two occasions, sought further and better particulars of that pleading, but this has done little to improve the position.  The plaintiff’s claim against the 3^rd defendant was stuck out on 21 July 2017 and, on 3 July 2018, Deputy High Court Judge K Yeung SC dismissed the plaintiff’s application for leave to appeal out of time.  The learned deputy judge has set out the relevant legal principles in his decision, and has also recounted the “explanation” of her claim (against the 3^rddefendant) that was offered by the plaintiff.  A similar “explanation” (as against the 1^st, 4^th and 5^thdefendants) was given to me by the plaintiff.

8.  The Statement of Claim must, however, be considered on its own terms, bearing in mind that the plaintiff has had ample opportunity to clarify any initial uncertainty through the provision of particulars.  The “particulars” however confuse, not clarify, not only as to the date on whichalleged agreements were made, but also as to the alleged capacity of parties making the alleged agreements.  On the face of the pleading it cannot be said that the pleading, taken with the particulars, discloses a cause of action. 

9.  The basis for the claim, its terms, and the identification of the transactions in respect of which an entitlement on the part of the plaintiff to fees is said to arise is hopelessly inadequate.  The defendants are placed in the invidious position of being asked to defend a claim which cannot properly be understood.

10.  When the evidence is considered the unsustainability of the pleaded claims becomes all the more apparent.  The written agreement signed by the 1^stdefendant (but nobody else) was signed for and on behalfof a company, not in his personal capacity.  The 4^th defendant did not existwhen it is alleged to have become a contracting party, and the 5^th defendant, who is the 1^st defendant’s assistant, is only alleged to have been peripherally involved.

11.  In the circumstances I had no doubt that the plaintiff’s claim is one which should not be allowed to proceed, falling foul of all of the “prohibitions” in Order 18, rule 19.

12.  There being no merit in the proposed appeal, accordingly I declined to extend time, and the appeal was dismissed.  A summary assessment of costs in favour of the defendants was made.

HCA 121/2017

[2018] HKCFI 1505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

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____________________

D E C I S I O N

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The appeal

1.  This is the appeal by the plaintiff against the Order of Master J Wong made on 21 July 2017 (“Master J Wong’s Order”) whereby the Court (1) stuck out the plaintiff’s claim against the 3^rd defendant (“D3”); and (2) ordered the plaintiff to pay D3 costs of the proceedings and the application with certificate for counsel, summarily assessed at HK$114,945 to be paid within 3 months.

2.  The relevant Notice of Appeal was filed by the plaintiff acting in person on 27 November 2017 (“the Notice of Appeal”).  By that notice, the plaintiff also seeks to appeal against a separate and later decision of Master K H Hui made on 17 November 2017 (1) allowing the summons dated 29 June 2017 taken out by the 1^st, 2^nd, 4^th, 5^th and 6^th defendants for Further and Better Particulars of the Further and Better Particulars previously given by the plaintiff on 5 June 2017; (2) extending the time for those defendants to file and serve their Defence and Counterclaim to 28 days from the date the plaintiff filed the Further and Better Particulars ordered; and (3) costs of the application including the hearing summarily assessed at HK$37,000 be payable by the plaintiff within 28 days from the date of the decision.  I have separately dealt with that part of the Notice of Appeal — see my Decision of 29 March 2018.

3.  The Notice of Appeal, in so far it concerns Master J Wong’s Order, was filed out of time.  On 27 February 2018, I gave inter alia the following written directions, that:

“ The plaintiff is directed to make an application for extension of time for appealing. The application for extension of time and the appeal, should extension be granted, will be heard at the same time during the new hearing date to be fixed (see paragraph 58/1/9 of Hong Kong Civil Procedure 2018 (a copy attached)).”

The plaintiff’s claim against D3

4.  The writ was issued on 16 January 2017.  It was amended once on 7 February 2017. The Amended Statement of Claim was prepared by the plaintiff in person.  Their contents are not easy to comprehend.  In broad terms, it is a claim by the plaintiff for outstanding introduction fees in the sum of HK$2,500,000,000.00 (HK$2.5 billion) which she said she was entitled to receive for having introduced certain investors to the 1^stdefendant (“D1”).

5.  D3 is a firm of solicitors.  It is not clear on the face of the pleadings what the plaintiff’s claim is against them.  It is not expressed to be contractual. There are no pleaded facts in support of any case that D3 were party to any contract which they have breached.  Nor is it expressed to be tortious.  There are no pleaded facts in support of any case that D3 for example owed her any duty which D3 have breached.  Mr D’Souza hasvery helpfully gone through the Amended Statement of Claim and reproducedin a schedule the contents of those parts of the Amended Statement of Claim where D3 are mentioned.  There are 9 such mentions (emphasis added):

•   “ 3)   Meeting at Mr Wen’s Jones Day Office dated May 12, 2015 ‌… At the request of Ms Siem Leung, meeting in debriefing and confirmation of the pages of legal contract by Mr Wen …” [page 4 of the Amended Statement of Claim]

•   “ Due Diligence done by the plaintiff, Ms Siem Leung, about the new business and the signed contract by Mr. Carson Wen of Sancus Group:-

1)   I have done the KYC (known your client background) and conducted company visit to your Jones Day office and obtained your debriefing of the contract terms you have signed to me;”            [page 6]

•   “ Contract terms:

…

3)   HK Listed company buying and selling—HK$10 million flat or 5% of the total considerations (current market fee quote), whichever is highest, paid by the buyers to me, net of professional fee and FAs fee, through:

a)   shares injection, exchanged by your portfolio of PRCinvestors, Jones Day’s clientele, using BVI company ‌… at your request instead of direct buying and selling of shares …

…

4)   Any other business subjected to fee commission arranged by your company and its subsidiaries, i.e. Sancus Group, Jones Day, the New Wealth Management platform and Investment Banking platform …” [page 8]

•   “ Conclusion:

As you have mentioned during the debriefing of the contract at your Jones Day’s office dated May 12, 2015, that you would like to dispose the PRC Government Joint Venture Putian Real Estate Private Equity Investment that you owned 40% for more than 3 years, the earliest the possible, in order to reinvest into other new projects, I therefore, finished most of my introductions with investors before June 2015.  Records of my introductions with investors by emails, whatsapp and meetings available upon your request plus other business associates, FAs, accountants, lawyers, consultants, brokers, financial advisors from PB and Corporate and Investment Bank that I am working on continuously that can be your potential business partners/Investors/party for the purpose of a potential transaction (collectively, the ‘Representatives’), and being part of the responsibilities of an agent’s job, for Sancus Group, Jones Day’s investors and your newly set up Bank of Asia (BVI) Ltd.”     [pages 9 – 10]

•   “ You disconnected with me and ignored all my emails communications since Aug 2015 after I found out the following incidents and questions raised:

…

4)   After I reported to the Law Society for investigation via Jones Day Dec 2015 you ignore with no response as well;”     [page 10]

•   “ If your intention is to invite me to introduce my long history tycoon clients to you as investors to Sancus Group, Jones Day, Bank of Asia (BVI) Ltd, and all the relevant information are true and genuine …”    [page 11]

•   “ The Claim Amount is projected and based on our contract and agreements:

1)   …

2)   Any other Private Equity Investment through subsidiaries of Sancus Group, Jones Day, Bank of Asia (BVI) Ltd range 1–3%”   [page 12]

6.  Those parts of the Amended Statement of Claim reproduced above represent the sum total of the plaintiff’s pleaded case against D3.  They do not, individually or together, inform D3 or the Court what the plaintiff’s case is against D3.

D3’s application for striking out

7.  On 10 March 2017, D3 took out a summons (“D3’s Summons”) for an order that the Amended Writ of Summons and the Amended Statement of Claim be struck as against them on the grounds that (a) they disclose no reasonable cause of action against D3; (b) they are frivolous; and/or (c) they are an abuse of the process of the Court.

8.  D3’s Summons is supported by the affidavit of Mr Robert Thomson dated 9 March 2017.  He is a partner of D3.  He confirms that the plaintiff has never been a client of D3, and that D3 have never entered into any agreement with the plaintiff.  He further deposes that D1 was employed as an Of-Counsel at the Hong Kong office of D3 and his employment ended on 31 December 2016.  In D1’s private capacity, D1 conducted business through companies he controlled or owned.  D3 have no dealings with the companies through which D1 conducted his private business.  He further says that D1 was not authorized to enter into any agreement for and on behalf of D3.  Mr Thomson has caused D1’s emails in his email account with D3 to be checked, and there was no email between him and the plaintiff.

9.  D3’s Summons first came before Master K Lo for call-over on24 March 2017.Directions for filing of evidence were given.  The learned Master further ordered for case management purposes that (1) the time for D3 to file and serve their Defence, if any, be extended for 28 days from the date of determination of the application for striking out; and (2) D3’s Summons be adjourned to a date to be fixed for argument with 2 hours reserved (“Master K Lo’s Order”).  The plaintiff subsequently on 17 July 2017 filed a Notice of Appeal (which was out of time) and sought to appeal against Master K Lo’s Order.  That appeal was heard by Deputy Judge Yee on 22 November 2017.  By his Decision handed down on 21 December 2017, His Lordship refused to grant the plaintiff leave to appeal out of time.  I will come back to this aspect of the case later. 

10.  The plaintiff on 18 April 2017 filled her affirmation in reply.  Amongst other things, she says that:

“ 9. On April 29 2015, a contract was signed by [D1] to me and the contract was being discussed, explained to me at the office of [D3] on May 2015.

10. During the 3^rd meeting with [D1] and [D5], at my request of referring back the buying and selling of HK listed company shares deals, [D1] clearly mentioned to me that he will provide legal service on his PRC clients in purchasing the HK listed company, by way of injection of shares, at US$9,500 per hour legal fee, through service provided by [D3] and [D5] was introduced and appointed by him assisting the whole process of the transaction and business thereafter, in related [sic] to HK listed companies buying and selling business with his PRC clients.

…

19. To avoid any confusion, a) I did not ever mentioned [sic] there was email communication between [D3], b) I don’t know the Job Description of [D1] in [D3] and whether he was also a Partner of the company during 2006–2016 c) I did not ever mention [D3] will pay for the introduction fee instead of the buyers as [D3] will only act as the legal adviser of the deal, as told; d) I don’t know how [D1] transacted his private business with his PRC investors while being employed by [D3] without competition on business; e) I don’t know [D1] so well as to compare with his ten years of working relationship with [D3]; f) Last, based on the mentioned a) b) c) d) e), and, they are ALL Professional Lawyers, I don’t understand why [D3] need to make an affidavit dated Mar 9 2017 on items no. 5, 6, 7, 8, 9 based on the content of my Writ of Summons delivered and I found no reasons [D3] can be out of the picture of these claims.”  

11.  D3’s Summons came before Master J Wong for substantive hearing on 21 July 2017.  Having heard the plaintiff appearing in person and Mr D’Souza for D3, the learned Master allowed the application and ordered the Amended Writ and the Amended Statement of Claim as against D3 to be struck out.

The applicable legal principles

12.  I remind myself of the following legal principles which are relevant and applicable to the present appeal.

13.  On extending time to appeal, the Court has to consider all relevant factors, particularly (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the proposed appeal; and (4) the degree of prejudice to the other party — see Hong Kong Civil Procedure 2018, paragraph 59/1/9.

14.  On the nature of an appeal from a master to a judge in chambers, such an appeal is dealt with by way of 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.  The judge in chambers is in no way fettered by the previous exercise of the Master’s decision, and on appeal from the judge in chambers, the Court of Appeal will treat the substantial discretion as that of the judge, andnot of the Master—see Hong Kong Civil Procedure 2018, paragraph 58/1/2.

15.  On striking out:

(a)   “ It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ … There should be no trial upon affidavit.  Disputed facts were to be taken in favour of the party sought to be struck out.  Nor should the court decide difficult points of law in striking out proceedings.  The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.  If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable causeof action or that the proceedings are frivolous or vexatious, then, there should be no striking out. …”    (paragraph 18/19/4)

(b)   “ A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered …”    (paragraph 18/19/5)

(c)   “ No evidence is admissible on [an application to strike out as disclosing no reasonable cause of action]: the court simply looks at the statement of claim and determines whether, on the assumption that the facts pleaded in it are true, the plaintiff has a cause of action in law (see O.18, r.19(2)).”  (Polytechnic University v Next Magazine Publishing Ltd [1996] 2 HKLR 260, at 263H)

(d)   “ A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possible succeed.  A proceeding is vexatious when it is oppressive and/or lacks bona fides.”        (paragraph 18/19/7)

(e)   “ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material.”    (paragraph 18/19/9)

The appeal hearing—and the plaintiff’s submissions

16.  During the hearing on 5 June 2018, the plaintiff continued to appear in person.  She prepared for the hearing a small bundle of documents.  She drew my attention to documents within that bundle which she submitted were relevant or important.  I have considered them.

17.  At the beginning of the hearing, I reminded her of my directions given on 27 February 2018.  I explained to her briefly the law on time extension.  On the reasons for the delay in the filing of the Notice of Appeal, she orally gave me some explanations.  She said that as she had lodged an appeal against Master K Lo’s Order given during the call-over hearing, she thought there was no need for her to appeal against Master J Wong’s Order.  She said she thought that if Master K Lo’s Order went, so would Master J Wong’s Order.  She said further that she filed the Notice for the present appeal only when Deputy Judge Yee told her to do so during the appeal hearing on 22 November 2017.

18.  On the merits of her present appeal, the plaintiff submitted that in addition to the written agreement signed by D1, she also relied on two verbal agreements she said she had reached with D1:

(a)   She said that the first alleged verbal agreement was reached with D1 on 12 May 2015 when she met D1 at his office within the offices of D3.  In support of her case that the meeting did take place, she referred me to her email dated 11 May 2015 to D1 (asking “May I drop by your office and seek your (or someone as lawyer) advice on the legal terms in the contract I am going to sign with you?”), and D1’s reply of the same date(“Yes please come to my Jones Day office …”).  The effect of that verbal agreement, according to the plaintiff, and in so far as I can understand it, was that D1 told her there was no need for her to sign on the written agreement signed by D1;

(b)   The 2^nd verbal agreement according to the plaintiff was reached between her and D1 on 23 June 2015, to the effect that D3 would be the lawyers involved in the deal and that fees in the amount of US9,500 per hour would be charged.

19.  The plaintiff told me that there was nothing new about the two verbal agreements, and that she had incorporated the terms of the same in her Amended Statement of Claim.

20.  The plaintiff further submitted that as agreements were reachedinside the offices of D3, and that D1 was a partner of or otherwise employed by D3, she has a case against D3.

21.  On the employment history of D1, the plaintiff pointed me to a certain article apparently downloaded from the website of D3 suggesting that D1 was a partner of D3.  I noted that that article was dated 12 September 2006.  Mr D’Souza informed me that D1 had ceased to be a partner of D3 by 1 January 2015, and that by 31 December 2016, he had ceased even to be an Of-counsel.

Discussion

22.  I have summarized above the explanations which the plaintiff gave me on the delay.  I have serious reservation about the veracity of those explanations.  Master K Lo’s Order was made on 24 March 2017.  The plaintiff followed the directions on the filing of evidence and filed her affirmation on 18 April 2017.  Preparation for the substantive hearing of D3’s Summons then became underway.  She did not seek to appeal against Master K Lo’s Order until 17 July 2017 (4 days before the substantive hearing), which Notice was itself more than 3 months out of time.  I have before me no explanation as to why the lodging of even that appeal was late.

23.  I however bear in mind that D3 by their Summons are seeking to have the plaintiff’s claim against them struck out.  The consequence on the plaintiff’s claim is grave.  On this basis, despite my reservation about the reasons for the delay, and given the applicable legal principles which I have summarized above, I proceed to consider the merits of the plaintiff’s proposed appeal before deciding whether to grant her extension of time to appeal.

24.  On the ground as to whether the Amended Statement of Claim discloses any reasonable cause of action, I have to consider the Amended Statement of Claim as it is.  No evidence is admissible for this purpose.

25.  I have summarized above the plaintiff’s pleaded case against D3 and my observations on it.  I will not repeat them.  I find that the claim as it is and as pleaded against D3 has no chance of success.  No reasonable cause of action has been disclosed against D3.  In my view, this is a plain case.

26.  I have also considered the grounds of appeal set out in the Notice of Appeal.  The relevant ones are:

“ 8) [D3] two affirmations were contradicted on Law Society complaint investigation and the real title of [D1], in the world’s leading Law Firm, during the 10 years of employmentnever been answered, clarified during the 2 hours of argument hearing (summons dated 3/10/2017 6) 10) 5/2/2017 3)) [sic];

9) The reason that orders being granted D3 to be struck out because the lawyer firm is big and Master J Wong prefers to trust them despite all arguments, evidence and facts was unfair and not according to any rules by HKSAR Law.”

27.  Those two grounds cannot cure the defects on the face of the Amended Statement of Claim, and verge on being non-sensical.  The complaint to the Law Society was made by the plaintiff after the event, and could have no bearing upon D3’s alleged liability in the context of the plaintiff’s claim.  The size of D3 as a law firm has absolutely nothing to do with anything before the Courts in Hong Kong.

28.  Having reached the view above, there is in fact no need for meto consider the evidence to see whether the claim against D3 is also frivolous or vexatious, or otherwise an abuse of process.  If necessary, I would find that it is.  What the plaintiff has said, whether in her affirmation filed in opposition of D3’s Summons or during the appeal hearing to me, do not assist her.  The fact that she met D1 inside his office within the offices of D3 does not mean that D3 was a party to any agreement she might have reached with D1. D1’s employment history with D3 equally does not of itself lead to any liability on D3’s part.  Then it was alleged and asserted that D1 had said that somehow D3 would be involved as the lawyers to the deal.  Quite apart from the hopelessly vague nature of the allegations, there is no elucidation from the plaintiff as to what D3’s alleged breaches were.  Those allegations and assertions are incapable of reasoned argument, without foundation and cannot possibly succeed. 

Disposal

29.  By reasons of the above, and principally on the basis that the plaintiff’s proposed appeal lacks merits, I refuse to grant her leave to appeal against Master J Wong’s Order out of time

Costs

30.  In respect of the costs of the present appeal, Mr D’Souza sought summary assessment.  I have considered the Statement of Costs submitted to me.  The sum of HK$111,752 is claimed.  I have considered the particulars set out therein.  I am of the view that both the work done and the amount charged are reasonable.  I order accordingly that the total costs of HK$111,752 should be paid by the plaintiff to D3 within 28 days from the day hereof.

The plaintiff appeared in person

Mr Robin D’Souza, instructed by Jones Day, for the 3^rd defendant

Attendance of the 1^st – 2^nd, 4^th – 6^th defendants were excused

HCA 121/2017

[2018] HKCFI 685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

____________

____________

________________

D E C I S I O N

________________

The appeal

1.  This is the appeal by the plaintiff against the Order of Master K H Hui made on 17 November 2017 (“Master Hui’s Order”): (1) allowing the summons dated 29 June 2017 taken out by the 1^st, 2^nd, 4^th, 5^th and 6^th defendants (“the 5 defendants”, “Ds’ 2^nd F&B Summons”) for Further and Better Particulars of the Further and Better Particulars previously given by the plaintiff on 5 June 2017; (2) extending the time for those defendants to file and serve their Defence and Counterclaim to 28 days from the date the plaintiff filed the Further and Better Particulars ordered; and (3) costs of the application including the hearing summarily assessed at HK$37,000 be payable by the plaintiff within 28 days from the date of the decision.

2.  The relevant Notice of Appeal was filed by the plaintiff on 27 November 2017 (“the Notice of Appeal”).  By that notice, the plaintiff also seeks to appeal against a separate and earlier decision of Master J Wong ordering, amongst other things, that the plaintiff’s claim against the 3^rd defendant be struck out.  Having invited parties’ written submissions and having considered them, I have directed that that part of the Notice of Appeal be heard separately.

Legal representation

3.  The plaintiff appeared in person.

4.  I have directed that the attendance of the 3^rd defendant be excused.  This part of the appeal does not concern them.

5.  Mr Chan appeared for the 1^st, 4^th and 5^th defendants, upon the instruction of Messrs Leung & Associates.   

6.  Both the 2^nd and 6^th defendants are named on the Writ and Statement of Claim (drafted by the plaintiff in person) as “Sancus Group”.  They were not represented before me.  Nor did any of their representatives attend. 

7.  During the hearing of Ds’ 2^nd F&B Summons before Master K H Hui, Mr Chan was instructed by the same firm of solicitors to appear for all of the 5 defendants.  The change, as confirmed to me by Mr Chan, was due to the recent realization that “Sancus Group” was not a separate legalentity that could sue or be sued.  That term loosely refers to a large group ofcompanies which bear “Sancus” in their names (and other companies whichare held by or associated with them).  Amongst the court file is a summons taken out recently by Sancus Investment Limited for an order, amongst other things, that (1) it be granted leave to be joined as an intervener to this action; (2) the writ and the statement of claim herein against the 2^nd and 6^th defendants be struck out.

8.  Given the background set out above, and in particular the fact that “Sancus Group” was not a separate legal entity, I deemed it futile to adjourn the hearing for their attendance.  In any event, Leung & Associates,who have been seeing to the interest of those two “defendants”, had notice ofthis hearing.  In the circumstances, and having considered Order 32, rule 5, I decided that it was expedient to proceed with the hearing of the appeal.

9.  One further consequence flows from the matters set out above, which is this.  As the 2^nd and 6^th defendants were not legal entities, they had no capacity to join in Ds’ 2^nd F&B Summons.  On this basis, and upon my rehearing of Ds’ 2^nd F&B Summons, I dismiss the part of the application by the 2^nd and 6^th defendants.

10.  I proceed to consider the application by the 1^st, 4^th and 5^th defendants under Ds’ 2^nd F&B Summons.

The plaintiff’s claim

11.  The writ was issued on 16 January 2017.  The statement of claim was prepared by the plaintiff in person.  Their contents are not easy to comprehend.  In broad terms, it is a claim by the plaintiff for outstanding introduction fee in the sum of HK$2,500,000,000.00 (HK$2.5 billion) which she said she was entitled to receive for having introduced certain investors to Mr Wen.

12.  On 27 February 2017, the 1^st and 5^th defendants took out a summons for (1) discovery of certain documents, and (2) Further and Better Particulars of the Statement of Claim (“the 1^st F&B and Discovery Summons”).  That summons was heard by Master K H Hui on 8 May 2017, who granted the Order sought (“the 1^st F&B and Discovery Order”).

13.  On 7 June 2017, in purported compliance of the 1^st F&B and Discovery Order, the plaintiff served her first set of Further and Better Particulars (“1^st F&B”) and certain documents.

14.  Despite steps having been taken by her to comply with the 1^st F&B and Discovery Order, the plaintiff by a Notice of Appeal dated 17 July 2017 sought to appeal against the same.  The appeal was heard before Deputy Judge Yee on 22 November 2017, who by his Decision dated 21 December 2017 dismissed the same.

15.  In the meantime, despite the provision by the plaintiff of the 1^st F&B and certain documents in purported compliance of the 1^st F&B and Discovery Order, the 5 defendants were of the view that the plaintiff’s claimremained materially confusing and lacked material particulars.  On 29 June 2017, they took out Ds’ 2^nd F&B Summons.

16.  Ds’ 2^nd F&B Summons was heard by Master K H Hui on 17 November 2018.  At the end of the hearing, Master K H Hui allowed the application and made Master Hui’s Order.  That Order is the subject matter of this appeal.

17.  One matter about that hearing should be noted.  The plaintiff originally contested the application.  The transcript of that hearing shows however that after some explanations from Master K H Hui, the plaintiff consented to the application.  As recorded at page 12, lines K – L of the transcript, Master K H Hui said:

「係。好喇，咁由於係梁女士係同意有關申請，咁法庭亦都頒令係梁女士需要提供有關嘅進一，再進一步嘅資料嘅，咁即係有關申請嘅係第1段、第2段都係批准。」

18.  As it turned out, the plaintiff did provide a second set of Further and Better Particulars (“the 2^nd F&B”) on 1 December 2017 as ordered.  But in the meantime, on 27 November 2017, she filed the Notice of Appeal.

Appeal by way of rehearing

19.  I remind myself of the following principles, which are trite andnot disputed by the parties.  An appeal from a master to a judge in chambers is dealt with by way of 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.  The judge in chambers is in no way fettered by the previous exercise of the Master’s decision, and on appeal from the judge in chambers, the Court of Appeal will treat the substantial discretion as that of the judge, and not of the Master — Hong Kong Civil Procedure 2018, paragraph 58/1/2.

Consideration of the appeal

20.  I have considered the grounds of appeals set out by the plaintiff in the Notice of Appeal.  They are difficult to comprehend.  Read in conjunction with the plaintiff’s oral submissions made before me, her grounds may be grouped into the following points:

(a)  the agreement she was suing on or the information relating to the investors she introduced to the defendant(s) were confidential, and she could not “leak” them without court order;

(b)  the Further and Better Particulars that the defendants were seeking were contained in the documents she provided to the defendants;

(c)  the defendants knew the answers to the requests for the Further and Better Particulars which they were seeking, so that there was no need for them to ask; and

(d)  a lawyer who acted for the 5 defendants had lied in an affirmation filed in support of the 1^st F&B and Discovery Summons (as to whether the defendants had certain documents). 

21.  None of those points assists the plaintiff’s appeal in any way.  Even taking (without finding) her four points at their highest (and considering them in the same order):

(a)  The plaintiff is now ordered by Master Hui’s Order to provide the 2^nd F&B;

(b)  The fact that the particulars which a litigant is otherwise obliged to plead and provide are contained in some documents which the litigant has disclosed to the other party does not excuse the litigant from pleading and providing those particulars.  The other party is entitled to know from the pleadings what case it has to meet;

(c)  For the same reason, the fact that the other party may know theanswers to its requests for further and better particulars does notexcuse the litigant from pleading and providing those particulars; 

(d)  the affirmation which the plaintiff complained about has no relevance to resolution of Ds’ 2^nd F&B Summons and the present appeal.  If at all, that might have been relevant to the 1^st F&B and Discovery Summons.  But the 1^st F&B and Discovery Order have been appealed against, and the appeal dismissed by Deputy Judge Yee.

22.  I have otherwise considered D’s Summons afresh.  I agree with Mr Chan’s submissions that despite the 1^st F&B, the plaintiff’s claim remained unclear as to (1) the number of contracts being alleged; (2) the identities of the parties to those contracts; (3) how those contracts were alleged to have been reached; (4) the relevant terms of the agreements; (5) particulars of the breaches; and (6) how the alleged loss and damage of HK$2.5 billion was calculated.

23.  Having considered the matter afresh, I agree that D’s Summons, in so far as it concerned the 1^st, 4^th and 5^th defendants was concerned, was correctly allowed.  I do the same.

24.  I note further, as I have explained above, that the plaintiff had before Master K H Hui agreed to the provision of the 2^nd F&B.  She did in fact do so.  This appeal, apart from being unmeritorious, also has no real purpose to serve.

Conclusion

25.  For the above reasons, I dismiss the appeal in so far as it relates to the 1^st, 4^th and 5^th defendants.

Costs

26.  In respect of the costs of the hearing before Master K H Hui, as I have allowed the part of the appeal in respect of the 2^nd and 6^th defendants,I reduce the costs which the plaintiff was ordered by Master Hui’s Order to paid by two-fifths, so that it becomes HK$22,200.

27.  In respect of the costs of the present appeal, Mr Chan sought summary assessment.  I have considered the Statement of Costs submitted to me.  The sum of HK$71,853 is claimed.  I have considered the nature of the appeal, which is not complex.  I note also that some works were done by Principal, Assistant Solicitors and Clerk, which necessarily involved some duplication.  I rule that an appropriate amount would be HK$45,000.  I so order.

28.  I order further that the total costs of $67,200 should be paid within 28 days from the day hereof.

HCA 121/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 121 OF 2017

____________

____________

____________

DECISION

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Introduction

1.  By a Notice of Appeal filed on 17 July 2017, Madam Leung appeals/applies to appeal against the following five decisions of the masters made on diver dates:

(1) the Order of Master J. Wong dated 8 March 2017 (“March Order (1)”) that

(a) the 1^st to 5^th Defendants’ Summons dated 27 February 2017 be adjourned to a date to be fixed for argument with 1 hour reserved;

(b) the time for 1^st to 5^th Defendants to file and serve their Defence be extended for 28 days until the determination of the Summons;

(2) the Order of Master K. Lo dated 24 March 2017 (“March Order (2)”) that

(a) the time for the 3^rd Defendant to file and serve its Defence, if any, be extended for 28 days from the date of determination of paragraph 1 of the 3^rd Defendant’s Summons dated 10 March 2017;

(b) the Summons be adjourned to a date to be fixed for argument with 2 hours reserved;

(3) the Order of Master K. Hui dated 7 April 2017 (“April Order”) that leave to the 2^nd, 4^th and 6^th Defendants to file and serve their Defence within 28 days after the determination of the Summons filed by the 1^st and 5^th Defendants on 27 February 2017;

(4) the Order of Master K. Hui dated 8 May 2017 (“May Order”) that

(a) The Plaintiff do within 28 days from the date of the Order produce for inspection all the documents set out in the Schedule annexed to the 1^st and 5^th Defendants’ Summons filed on 27 February 2017.

(b) The time for the 1^st and 5^th Defendants to file and serve their Defence be extended for 28 days from the date when the Plaintiff has (i) produced the documents for inspection and (ii) filed and served the further and better particulars requested by the 1^st and 5^th Defendants in paragraphs 1 and 2 of the Order of Master K. Hui dated 8 May 2017.

(c) Costs of the application including today’s hearing summarily assessed at HK$20,000 be paid by the Plaintiff to the 1^st and 5^th Defendants forthwith.

(5) the Order of Master K. Lo dated 12 July 2017 (“July Order”) that the 1^st, 2^nd, 4^th, 5^th and 6^th Defendants’ Summons filed on 29June 2017 be adjourned to a date to be fixed, with 3 hours reserved.

2.  It can be seen from the dates of the five orders that except the July Order, the time for appealing against all such orders has expired. Madam Leung has to apply for an extension of time in respect of her appeal against such orders.

July Order

3.  I should first deal with her appeal against the July Order. This appeal is patently unmeritorious. Master K. Lo merely gave the usual directions with a view to the efficient disposal of the application of all the defendants except Jones Day by their summons dated 29 June 2017 for further and better particulars of the further and better particulars given on 2 June 2017 by Madam Leung. The summons was eventually determined by Master Hui on 17 November 2017 in favour of the relevant defendants.

4.  I bear in mind that this appeal is to be dealt with by way of an actual rehearing of the application which led to the order under appeal. This court is not dealing with the subsequent determination of Master Hui. I would have dealt with the summons in exactly the same manner as the master did and would have given the same directions for case management purposes at the call-over hearing. I see no merit in this appeal.

Other orders

5.  For all other appeals, Madam Leung has offered no explanation for the delays at all. The delays are not insubstantial and the shortest one in respect of the May Order is still more than 2 months. Nevertheless, this court should proceed to consider the merits of the intended appeals.

March Order (1) and May Order

6.  These two orders can be considered together. They were made in relation to the application of the 1^st and 5^th defendants for specific discovery of 22 documents and further and better particulars of the Statement of Claim.

7.  The March Order (1) was made at a call-over hearing for case management purposes and usual directions were given to the parties to file evidence for the argument of the application at the adjourned hearing on 8 May 2017. The adjournment was clearly necessary as the parties were yet to finish filing of their evidence and the time was insufficient as well. The master did not actually make any determination on the application at all and the March Order (1) was merely to hold the ring. I would have made the same directions. Madam Leung is unable to persuade this court how such directions are wrong.

8.  Master Hui eventually acceded to the application of the 1^st and 5^th defendants and made the May Order. Madam Leung’s complaint, as I can understand from her, is that because of certain confidentiality agreements, unless otherwise ordered by a court, she is obliged to keep such 22 documents sought to be specifically discovered confidential. On the other hand, she complains that before the 1^st and 5^th defendants made the application, in February this year, she already sent to them the 22 documents by way of emails. Lastly, she maintains that the defendants should be able to deal with the Statement of Claim without seeking the further and better particulars.

9.  Madam Leung in fact has purportedly complied with the May Order albeit not to the satisfaction of the 1^st and 5^th defendants. She served her Answer in June 2017 but the 1^st and 5^th defendants applied to seek further and better particulars thereof. Their application has been adjourned for argument by the July Order.

10.  The claim of Madam Leung is for outstanding introduction fee in the sum of HK$2,500,000,000 relating to her service rendered to the defendants. Allegedly she has introduced certain investors to Mr Wen. The Statement of Claim, prepared by Madam Leung in person, is very difficult to understand. I agree that further and better particulars are necessary and the defendants are entitled to have a clear understanding of the allegations before they can file a meaningful defence to the same.  I too agree that the defendants’ application for further and better particulars should be allowed in the first place and Madam Leung fails to convince me otherwise.

11.  As regards the defendants’ application for specific discovery, they merely asked for inspection of the documents referred to in the Statement of Claim. I see no reason why their application should be refused.

12.  Madam Leung’s position is difficult to understand. If she really required a court order to disclose those documents because of the alleged confidentiality agreements, she cannot really complain about the May Order. She is not denying her possession of the same and that they are not relevant.

13.  Her argument that the 1^st and 5^th defendants have already had in their possession of those documents is not tenable. She does not understand her duty of disclosure in this action, from which she cannot be absolved regardless of whether the 1^st and 5^th defendants already have a copy of those documents.

April Order

14.  Master Hui made the April Order to allow the application by the 2^nd, 4^th and 6^th defendants for an order that their time to file and serve their defence be extended until 28 days after the determination of the foregoing application of the 1^st and 5^th defendants.

15.  Madam Leung could only repeat her complaint about the application of the 1^st and 5^th defendants. I have only explained why I believe that the application should be granted. I am of the view that the 2^nd, 4^th and 6^th defendants had the same obstacles in filing their defence if the further and better particulars were not given and the relevant documents were not disclosed in this action. They were entitled to wait for the determination of the application before filing their defence. I see nothing wrong with the April Order at all.

16.  Lastly, Madam Leung claims that the 2^nd, 4^th and 6^th defendants have no defence at all and this is why they were unable to file their defence. I cannot accept her assertion and in any event it has no bearing on the correctness of the April Order. 

March Order (2)

17.  The March Order (2) was made at the call-over hearing of the 3^rd defendant’s application for an order that the Writ of Summons and the Statement of Claim be struck out.

18.  Again the March Order (2) was for case management purposes only. The application was eventually heard by Master J Wong on 21 July 2017 after the parties had filed their evidence pursuant to March Order (2). Master J Wong allowed the application and ordered that Madam Leung’s claim as against the 3^rd defendant be struck out.

19.  At the time of the hearing, Madam Leung had not yet filed any notice of appeal against the order despite the lapse of 4 months. At the time of this Decision, I understand that Madam Leung subsequently did so.

20.  In any event, the March Order (2) only served its case management purposes and I fail to understand how it could be faulted. I would have given the same directions.  

Conclusion

21.  I have made an effort to understand Madam Leung’s arguments at the hearing and for the reasons given, I am unable to find any merit in her appeal(s).

22.  Accordingly, I dismiss her appeal against the July Order. I also refuse to grant her leave to appeal against all other orders out of time (the March Order (1), the March Order (2), the April Order and the May Order).

23.  None of the defendants has taken any part in this matter. They have applied for their attendance to be excused. I, therefore, make no order as to costs.