SZETO KWOK HUNG ROQUE v. SZETO KWOK KWONG BERNARD AND OTHERS

HCMP 2596/2017

[2023] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

______________

______________

______________

________________

D E C I S I O N

________________

1.  This is the defendants’ (“Ds”) application by summons of 4 May 2023 seeking principally an order that the perceived irregularity arising out of their failure and inability to serve upon the plaintiff (“P”) certain specified documents (the “Documents”) in relation to the Taxation Proceedings (both defined below) against P be cured.

2.  For background of the present action, I refer to the several Decisions which I have handed down herein.

3.  For reasons set out in my Decision handed down on 16 September 2021[1], I dismissed P’s Summons and P’s Further Summons with costs against him on an indemnity basis.

4.  Relying on that costs order, Ds subsequently commenced taxation proceedings against P (i.e. the Taxation Proceedings).

5.  For that purpose, Ds sought to serve upon P the Documents, comprising the Notice of Commencement of Taxation dated 22 April 2022, the Bill of Costs, the Application to Set a Bill Down for Taxation, the Notice of Taxation Call Over Hearing, and the Allocatur.

6.  The Documents were served by post upon P’s address for service stated in his Notice of Change of Address For Service dated 5 March 2021 (the “Stated Address”). There has been no further change on record after that.

7.  The Stated Address is that of a serviced apartment.

8.  The envelopes containing the Documents posted to the Stated Address had in fact all been returned. P had checked out of the Stated Address by the time when the Documents were posted to that address.

9.  According to the 1^st affirmation of Cheung Kwok Choi (solicitors for Ds) filed in support of the present application, his firm was not aware of those return until late September 2022. That was because the returned letters were all allowed to sit on the reception counter, and that the solicitors having the conduct of the case had not been alerted to that.

10.  That was a fundamental error which ought not to have been permitted to happen. Ds’ solicitors accepted responsibilities for that.

11.  The inanity of the error apart, Mr Cheung says that his firm had at the time honestly thought that service of the Documents had been validly effected upon P, had caused affirmations of service to be filed to that effect, and had proceeded with the Taxation Proceedings to their fruition.

12.  Upon knowledge of the error, the present summons was taken out.

13.  As I have said, the error ought not to have been permitted to happen. But despite that, and for the following reasons, I am of the view that no irregularity had occurred, and the present application is not required:

(a)  P is the plaintiff in the present action;

(b)  As such P has to provide address for service in accordance with O.6 r.5;

(c)  He changed his address for service to the Stated Address by filing his Notice of Change of Address;

(d)  He has since checked out of the Stated Address. He must know that that address would no longer be valid for service. He has however failed to update it;

(e)  In my view, since the time P moved out of the Stated Address, and upon his failure to provide a new and valid address for service, he became a plaintiff with no address for service;

(f)  Upon that happening, O.65 r.9 became applicable to him. The Documents, which otherwise did not require personal service, were no longer required to be served upon him;

(g)  The above analysis equally applies to the present summons and Mr Cheung’s affirmation in support.

14.  To avoid any unnecessary argument in the future, I order that the service of the present summons and Mr Cheung’s affirmation in support be dispensed with. Having done so, I make no order in respect of the summons, on the basis that the relief sought is not necessary. I also make no order as to costs.

The Plaintiff was not represented and did not appear

Mr Leo Remedios and Ms Alice Y C Lau, instructed by Bernard Wong & Co, for the 1^st to 3^rd Defendants

HCMP 2596/2017

[2021] HKCFI 2802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

______________

______________

______________

____________________

DECISION

____________________

1.  I refer to my previous Decisions (in particular those of 18 April 2018[1], 7 September 2020[2] and 2 December 2020[3]) for the background of the matter.

2.  This is the substantive hearing of the summons (the “P’s Summons”) taken out by the plaintiff (“P”) on 23 February 2021 for a number of different orders.

3.  §(5) of the Summons asked for inter alia the deportation of the counsel acting for the defendants (“Ds”).  On 18 March 2021 when P’s Summons first came before me for call‑over, I ordered that that paragraph be struck out.  That paragraph was plainly frivolous, vexatious, and constituted clear abuse of process.  I otherwise gave directions on the filing of evidence in support and opposition.

Ds’ summons (“Ds’ Summons”) for leave to file a further affirmation

4.  By summons of 2 August 2021, Ds seek leave to file and serve the 4^th affirmation of Mr Chan Cheung Ho (“CH Chan” and “Chan/4^th”).

5.  CH Chan is a partner of Messrs Bernard Wong & Co, solicitors for Ds (“BWC”).

6.  The purpose of Chan/4^th is principally to produce certain correspondence between the Official Solicitor’s Office (the “OS”) and Court, and between BWC and Messrs Howse Williams, solicitors for Canossa Hospital.

7.  I am satisfied that those correspondence are relevant.

8.  Whilst they could have been adduced earlier, they have been provided to P for more than one month.  I am satisfied that granting Ds leave to rely on Chan/4^th would not cause P prejudice.

9.  I allow Ds’ Summons. 

10.  Ds offer to, and I order them to, bear the costs of and occasioned by Ds’ summons.  I will come back to the question of costs later.

P’s Summons 

11.  I have considered P’s affirmation of 23 February 2021 filed in support. I have also considered the 5^th affirmation of D2 filed in opposition. 

12.  I will deal with each paragraph in P’s Summons in turn.  I record that in doing so, I do not have the benefit of any written submissions from P.

Paragraphs (1) and (4) of P’s Summons

13.  §§(1) and (4) of P’s Summons may be considered together.

14.  By those paragraphs, P seeks an order that:

“ (1) Paragraph 1.1.2 of the Order made on 18th April 2018 be varied to the extent to include the choice of hospital for [Mother] and nursing care arrangement and involved costs and expenses be paid by the three [Ds] in this Injunction Order.

…

(4) The two doctors Dr Lam Man Fai and Dr Yeung Yeung must be removed effective immediately from the medial team as they pose present and immediate danger to Mothers health and well‑being.”

15.  The relief sought via §1 of P’s Summons is identical to that which P sought by his summons of 27 August 2020, save that on that occasion, he asked that the costs be borne by the OS.

16.  For reasons set out in my Decision handed down on 2 December 2020, I dismissed P’s application made via his summons of 27 August 2020.  In particular, I ruled that “[allowing] the application would allow the plaintiff powers not just to override the views of his siblings but also that of the Guardianship Board”.

17.  Those reasons remain valid, and indeed more so now in light of the following matters.

18.  Placed before this Court now are the full terms of the Order made by the Guardianship Board dated 27 November 2020.  It was only certified on 4 December 2020, and hence was not available to this Court when I handed down the Decision of 2 December 2020.  That Order stipulates, inter alia, that:

“ …[Mother] be received into guardianship for a period of one year, commencing on 27 November 2020.

…

And the Guardianship Board further Orders that the Director of Social Welfare be appointed as guardian of [Mother] with the following powers, to the exclusion of any other person:-

(a) to require [Mother] to reside at such place as may be specified by the guardian. (s.59R(3)(a))

(d) to consent to medical or dental treatment on behalf of [Mother], but only to the extent that [Mother] is incapable of understanding the general nature and effect of such treatment. (s.59R(3)(d)).”

19.   On the jurisdiction of this Court, Mr Remedios has traced through a number of authorities which include section 12(2)(a) of the High Court Ordinance, Cap 4, Re CML (Mental Health) [2020] 3 HKLRD 481, per Lok J at §§18-33, LWY v Guardianship Board [2009] 3 HKLRD 30 at §28, Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No.2) [2012] 3 WLR 1439 at §70, and Re TBS[2019] HKCFI 2919 at §§51‑53.  He submits, supported by those authorities in my view, that insofar as matters which fall precisely within the ambit of the Mental Health Ordinance, Cap 136 (“MHO”) are concerned, there is no room for the invocation by this court of its inherent jurisdiction.

20.   Mother’s medical treatment, and the identity of the medical doctors giving her the same, fall within the ambit of the Guardianship Order (and in particular §§(a) and (d) thereof).

21.   As Mr Cheng on behalf of the OS has submitted, which I accept, this Court is not the proper forum to determine the issues that fall within the ambit of the Guardianship Board.  I accept his further submission that if P has valid basis for believing that he should act as the guardian of Mother in place of the Director of Social Welfare and take control of the arrangement for medical care and treatment, he can and should make application to the Guardianship Board, which has the power to obtain social investigation report and the relevant medical records of Mother.  If P remains dissatisfied with the decision of the Guardianship Board, he may then appeal to the Court of First Instance pursuant to section 59W of the MHO.

22.   In any event, the evidence before this Court does not support the application:

(a)   In the course of the hearing, P made submissions on the alleged inadequacies of the medical care which Mother had been receiving;

(b)   In particular, P made detailed submissions on what he said to be excessive dialysis that Mother had been subjected to (4 times per week instead of 3), causing her low blood pressure.  P said that he then did some homework on the adequacy metric and showed that the number of hours per session was almost 80 % excessive;

(c)   However, according to the medical report of 30 June 2021 of Dr Kelvin Ho produced by P, and as Mr Remedios pointed out:

“ …The medical condition of the patient improved from her critical condition to a slightly more stable condition lately.  The dialysis frequency was recently reduced from 5 to 4 times a week of 3 to 4 hours duration at each haemodialysis session since about 2 weeks ago …

   …

   …Therefore the current dialysis settings with frequency and regimen is adequate by judging Kt/V criterion alone.  The reduction of dialysis frequency may consider to reduce to 3 sessions a week if the blood pressure can be adequately maintained during the dialysis.”

(d)   Mr Remedios has also pointed to other medical reports which described the medical, nursing and allied health care Mother had been receiving as being optimal[4], or recommended the retention of the then current medical teams.

23.   For the above reasons, and in particular those set out in §§16 to 21 above, I dismiss §§1 and 4.

Paragraph (2) of P’s Summons

24.   By §(2) of P’s Summons, P seeks an order that:

“All previous rulings be striken [sic]out because of the lies and half‑lies by [Ds] and that of their mouthpiece their counsel.”

25.   P fails to specify which rulings are within the scope of §2.  He obviously does not actually mean “all”, else even the orders granting him the Injunction Order and those subsequent Orders continuing the same would also be caught.

26.   I agree with Mr Cheng that if P is seeking to appeal against the Orders made by the Mental Health Court and the Guardianship Board, this Court is not the appropriate forum.  If he seeks to appeal against any orders made in this action, he should follow the appropriate procedure in order to, as a start, seek leave to appeal out of time.

27.   §(2) is not only procedurally wrong, but is devoid of substantive merits.

28.   I dismiss §2.

Paragraph 3 of P’s Summons

29.   By §3 of P’s Summons, P seeks an order that:

“ [Ds] should be responsible to pay for all expenses (medical, nursing, supporting staff) from Sept 2014 onwards.”

30.   In HCMH 83/2018 and HCMH 28/2019, the OS was appointed the Committee of Mother’s estate with the powers of managing her property and financial affairs.  I accept Mr Cheng’s submission that any dispute between the Mother’s estate and other parties who claim to have paid medical expenses on Mother’s behalf falls within the jurisdiction of the Mental Health Court under Part II of the MHO (which governs matters relating to the “Management of Property and Affairs of Mentally Incapacitated Persons”).  If P has valid grounds for believing that Mother’s property has been mismanaged and that he should take control of her estate in place of the OS, he should make application to the Mental Health Court.

31.   I dismiss §3.

Paragraphs (6) and (7) of P’s Summons

32.   §§(6) and (7) of P’s Summons may be considered together.

33.   By those paragraphs, P seeks an order that:

“ (6)  … It is not clear that the [OS] is the best person to recover all that was taken by [Ds] from Mother … I ask for relief and time to find the best entity to help Mother.  In the meantime, I ask the Court to freeze the assets of the family’s companies and the private assets of all directors of the companies that once was under total control of Mother until there is an accurate account of the extent of treacheries of [D1] is fully known.

(7)  Mother promised to give me back the flat C11 … when I reached the age of seventy.  When I come back last time, C‑11 has been sold by [Ds].  I asked the Court to intervene to demand [Ds] to make amends and restitutions as what they did was willful to deceive to steal.”

34.   No basis whatsoever has been made out for any order freezing those “assets of the family’s companies and the private assets of all directors of the companies”.  If a Mareva injunction is what P is after, there are clear procedure for an applicant to follow, and well defined thresholds for an applicant to meet.  P has failed in both regards.

35.   Nor has P established any basis for any interlocutory and summary order for “amends and restitutions” in relation to the property which P claims Mother had promised to give him back.  If a summary judgment is what P is seeking, Order 14 of the Rules of the High Court and the related case law govern what P has to do and to establish.  P has failed to establish any case for one.

36.   §§(6) and (7) are procedurally wrong and are devoid of substantive merits. I dismiss the same.

Paragraph (8) of P’s Summons

37.   By §(8) of P’s Summons, P seeks an Order that Canossa Hospital be compelled to give:

“ … [P] and his new medical team … unimpeded assess of ALL medical files at Canossa Hospital … The request is important for [P] to be able to furnish the Court with evidences [sic] to assess the full situation to make an intelligent decision how best to provide the best help for Mother.”

38.   As Mr Cheng has submitted which is clearly correct, the Director of Social Welfare as the guardian of Mother has the authority to obtain medical records for the purpose of formulating the health and welfare plans for her. And as Mr Remedios has submitted which I also accept, this application is clearly not the right forum to deal with §8 where Canossa Hospital has not even been made a party herein.

39.   Further, P informed me in the course of the hearing that the social worker involved in the case has been helpful, and through that social worker’s assistance, P has obtained some useful information from the Canossa Hospital.

40.   I refuse §8.

Disposition

41.   For the above reasons, I dismiss P’s Summons in its entirety.

P’s further summons of 7 September 2021 (“P’s Further Summons”)

42.   Whilst P’s Summons is still pending, and less than two days before the present hearing, P filed P’s Further Summons.

43.   P’s Further Summons seeks materially the same relief as sought in P’s summons:

(a)   §§(1) to (3) thereof are the same as §§(1) to (3) of P’s Summons;

(b)   §(4) thereof asks for “restitutions for the pain and the sufferings exacted upon [Mother] since September 2014”.  Such relief is clearly outwith the scope of the present proceedings.  Nor has any basis been established for P to sue on Mother’s behalf for any of her alleged pain and sufferings;

(c)   §(5) is the same as §(4) of P’s Summons;

(d)   §(6) is similar to §(5) of P’s Summons, except that this time P asks for Ds’ counsel to be “dealt with by fines and remanded” as opposed to being deported;

(e)   §(7) is similar in scope to §(8) of P’s Summons, which relates to his access of the medical information kept by Canossa Hospital;

(f)   §(8) complains about Ds’ counsel having lied, and seeks the reversing of certain previous orders and that “the amount I had previously paid from my pocket be used to offset the Official Solicitor fees”; and

(g)   §(9) is the same and §(7) of P’s Summons, which relates to Mother’s alleged promise to give the property back to him.

44.   In support of P’s Further Summons, P filed an affirmation on the same day.  Various matters are gone into, including Mother’s medical conditions, how his siblings allegedly blackmailed their father, that Mother has been blacklisted by all private hospitals on the Hong Kong Island and who he claims are responsible for that.  Under what is in effect the concluding section of his affirmation, he asks inter alia that his siblings be remanded into custody and fined, that this Court to help to direct Canossa Hospital to allow him full access to Mother’s medical information, and for the reversal of certain ruling by this Court.

45.   Despite the lateness in which P’s Further Summons was filed, Mr Remedios and Mr Cheng were content that it be dealt with together with P’s Summons, and P be permitted to rely on his further affirmation.

46.   In my view, P’s conduct of taking out P’s Further Summons for nearly identical relief whilst P’s Summons is pending constitutes clear abuse of process.

47.   In any event, the discussions set out above in relation to P’s Summons equally apply to P’s Further Summons.  I need to add only these:

(a)   In respect of §(4) of P’s Further Summons, which is not in P’s Summons, I have observed above that P has not made out any basis why P can sue on Mother’s behalf for any of her alleged pain and sufferings.  As Mr Cheng submitted in the course of the hearing which I accept, P is in fact seeking to start a personal injuries action suing for Mother, which he has no basis to do;

(b)   In respect of §(8), and in respect of the OS’s fees, they have been dealt with before the Mental Health Court, and have been ordered to be settled by Mother’s estate;

(c)   In the course of the hearing, P accepted that Ds had not previously breached the Injunction Order, but claimed that they did when they caused Mother to be blacklisted by all the private hospitals on the Hong Kong Island.  He claimed that Mother had been incapacitated and could not have caused that herself, that P did not cause it, and by elimination, it must have been Ds who caused that.  In my view, the evidence adduced by P does not come close to establishing any breach by Ds.  The procedure for seeking an order to contempt also has not been followed.    

48.   For the above reason, I dismiss also P’s Further Summons.

Costs

49.   Mr Remedios seeks costs on an indemnity basis, with certificate for two counsel, to be taxed if not agreed, and payable forthwith.

50.   Mr Cheng indicated that the OS attended to assist the Court, and therefore does not seek costs.  I am grateful for his assistance.

51.   I have considered the nature of the relief sought by P.  They are all without merits.  Some of them are frivolous, outwith the action, and amount to abuse of process (§§2, 3, 5, 6, and 7 of P’s Summons in particular).  The filing of P’s Further Summons whilst P’s Summons is pending is also an abuse of process.  In my view, all the above constitute special and unusual features for an indemnity costs order to be made.

52.   Given the nature of the matter, I am however not satisfied that a certificate for 2 counsel is justified.

53.   I make a costs order nisi that P shall bear Ds’ costs of and occasioned by P’s Summons and P’s Further Summons on an indemnity basis, with certificate for one counsel, to be taxed if not agreed, payable forthwith.  The costs of Ds’ Summons (which Ds have to bear) should be dealt with and taxed at the same time, and may be set off against part of the costs which P has to bear.  The costs order nisi will become absolute in the absence of any application for variation within 14 days from the date of this Decision.

HCMP 2596/2017

[2021] HKCFI 1765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

______________

______________

______________

DECISION

______________

1.  For reasons set out in my Decision of 18 March 2021[1] (the “Decision”), I refused Ds’ application for security for costs against P.

2.  By summons of 1 April 2021, Ds seek leave to appeal against the Decision.  This is the hearing of the Summons.

3.  Mr Leo Remedios together with Ms Alice Lau appeared for Ds.  P did not appear.  Mr Philip Cheng appeared for the Official Solicitor, who is neutral to the application.

The background facts

4.  For background of the matter, I refer to my previous Decisions (in particular that of 18 April 2018[2]).

The proposed grounds of appeal

5.  As has been summarized by Mr Remedios[3], proposed Grounds 1 to 4 all revolve around a similar theme, ie “it is wrong in law and in principle to depart from the well‑established legal principle that shares in a Hong Kong private company do not amount to substantial assets within the jurisdiction readily available for costs for the purpose of defending a security for costs application”.

6.  I have considered the authorities cited to me, which include Re Charter View Developments Ltd, unrep, HCCW 45/2006, 21 December 2006 and So Yee Mui and Others v Lam Pui Chi, unrep, CACV 283/2010, 28 June 2011.

7.  I am not satisfied that those grounds are reasonably arguable.

8.  The important emphasis is not the nature of the P’s assets being in the form of shareholding in a private company.  The important facts relevant to this Court’s exercise of discretion are rather:

  (a)  Worth Enterprises is a family company holding family assets;

  (b)  As revealed in D2’s 4^th affirmation, Worth Enterprises has been holding cash and cash equivalents as the main forms of asset; 

  (c)  P has interest in a share of the family assets, in the form of 12% shareholding in Worth Enterprises;

  (d)  Ds are directors of Worth Enterprises[4]. P is not a director;

  (e)  The family assets are not the subject matter of the disputes before this Court;

  (f)  As I have pointed out in the Decision, the reality in the present case is that Ds as directors are controlling Worth Enterprises.  P has a share of family assets in Hong Kong which happens to be in the form of shareholding in that company which is (ie his share alone) according to the accounts before me worth upwards of HK$10,000,000.  Ds know their value.  Ds say they do not want to buy them even if they could upon execution.  They want an order for security now instead;

  (g)  In the course of his oral submissions, Mr Remedios with reference to Ameritax Plus Ltd v Harris [2012] 5 HKLRD 757 emphasized that the process of enforcing any adverse costs order against P by seeking a charging order in respect of P’s shares in Worth Enterprises is going to be a protracted one.  I note however Worth Enterprises is an asset holding company.  It has been holding cash or cash equivalents.  The valuation of its shares should not be a difficult exercise.  The process of enforcing a judgment through a charging order on company shares is a common occurrence.  Though not obliged to, Ds can buy P’s shares.  It does not assist to over‑exaggerate the complexity of that process.  That is in any event at best a factor to be taken into account, which the Court has;

  (h)  It was in the light of those facts and considerations that on balance, given P’s assets in the form of his shareholding in Worth Enterprises, and given Ds’ attitude, I formed the view that it would be too oppressive to P by requiring him to pay security.  The 12% shares in Worth Enterprises which company Ds control in my view already offers them a measure of security.

9.  I refuse Ds leave to appeal on proposed Grounds 1 to 4.

10.  Proposed Ground 5 complains that this Court in effect reversed the burden of proof.  I have not.  I had regard to all the circumstances of the case in deciding whether it was just in ordering P to give security for costs. I decided that it was not.

11.  In all the circumstances, I refuse Ds leave to appeal.

12.  As P did not appear, I make no order as to costs.

HCMP 2596/2017

[2021] HKCFI 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

______________

______________

______________

DECISION

______________

1.  I refer to my previous Decisions (in particular that of 18 April 2018[1]) for the background of the matter.

2.  This is the hearing of the application by the defendants (“Ds”) for security of costs against the plaintiff (“P”).

3.  The main basis of Ds’ application is that P is not ordinarily resident in Hong Kong.  The onus is on Ds to establish that.

4.  The question of ordinary residence is one of fact and degree.  It does not depend upon the duration of the residence, but upon the way a man’s life is usually ordered, and it contrasts with occasional or temporary residence.

5.  In the Originating Summons and a number of documents P filed, he gave an address at the University of Hong Kong as his address.  It turned out that he has not been employed by the University.

6.  In his affirmation in opposition, P asserts that the mistake is due to his unfamiliarity with the procedural rules.  In my view, that could have nothing to do with the mistake.

7.  In the course of these proceedings, P has twice filed Notices of Change of Address for Service.

8.  During the guardianship application in respect the Mother, in a document sent by P’s solicitors to the Guardian Board, it was said that P left Hong Kong at 17, went to UK for studies, then to the US and obtained ultimately a doctorate degree.  It was said that after graduation, he devoted all his time on research and did not spend much time in Hong Kong.  It was further said, in respect of P’s care for the Mother, that even though he was not in Hong Kong, he had been using various means such as emails and telephone calls to regularly monitor her condition.

9.  In his affirmation in opposition, P asserts that he is an ordinarily resident in Hong Kong.  He says that he has a HK Identity Card.  He says that the fact that he has a US passport does not mean that he is not resident in Hong Kong.  He says that he splits his time between the US and Hong Kong, but that does not mean that he intends to reside outside Hong Kong.  Beyond that, no material information has been provided.  He accepts on the other hand that his current address in Hong Kong is that of a service apartment. 

10.  On the evidence, I am of the view that P is not ordinarily resident in Hong Kong.

11.  However, the fact that P is not ordinarily resident in Hong Kong does not mean that security will have to be ordered.  I need to consider P’s financial position.

12.  P holds 12% shareholding in a family company called Worth Enterprises Company Limited (“Worth Enterprises”).  P is not a director.  Ds are. 

13.  According to D2’s 4^th affirmation, the net asset positon of Worth Enterprises is about HK$93 million and HK$92 million respectively for the year ended 31 December 2018 and 2019.  She also says that Worth Enterprises has over the past few months sold off all of its non‑current assets, leaving cash and cash equivalents as the main form of assets.  Though she asserts that its latest net asset position is currently unknown pending finalization of its financial statements (expected to be available in July/ August 2021), the net asset position of Worth Enterprises would not on the evidence be materially worse off that what it used to be.

14.  Mr Remedios submits that shares in a Hong Kong private company do not amount to substantial assets within the jurisdiction, because the value of such shares is difficult to ascertain and it is uncertain whether a buyer can readily be found for them.

15.  Whilst that is generally correct, the position here is that Ds are the directors and also shareholders of Worth Enterprises.  They are in the position to control Worth Enterprises.  They know the value of the shares.

16.  Mr Remedios submits that whilst the values of the shares of Worth Enterprises may be ascertained, there remains no market for them.  He further says that Ds may not want to buy them as they do not want to, as they do not want to fund P’s action.  Mr Remedios submits further that they could not be forced or directed to do so, or may not even have the funds to do so.

17.  I am not seeking to force or direct Ds to buy P’s shares out.  What I am considering is, should there be an adverse costs order against P, and should an order for sale be obtained on execution, whether the shares could be readily available to satisfy the costs order.

18.  The consideration of an application for security involves balancing between what would be too oppressive to the plaintiff by requiring him to pay security and what would give the defendant a measure of security.

19.  The reality in the present case is that Ds as directors are controlling Worth Enterprises.  P has a share of family assets in Hong Kong which happens to be in the form of shareholding in that company that is worth upwards of HK$10,000,000.  Ds know their value.  Ds say they do not want to buy them even if they could upon execution.  They want an order for security now instead.

20.  On balance, given P’s assets in the form of his shareholding in Worth Enterprises, and given Ds’ attitude, I form the view that it would be too oppressive to P by requiring him to pay security.  The 12% shares in Worth Enterprises which company Ds control in my view already offers them a measure of security.

21.  I have considered other factors, like the merits of the case.  But in the end, on balance, I refuse the application.

22.  I will hear parties on costs.

23.  Having heard parties, and upon P indicating that he is not seeking any, I make no order as to costs.

HCMP 2596/2017

[2020] HKCFI 3048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

1.  I refer to my Decision of 7 September 2020 (“7/9/2020 Decision”) for the background of the matter. This is the substantive hearing of the plaintiff’s application to vary the Injunction Order.

2.  Pursuant to my directions previously given, the defendants have filed one affirmation in opposition, namely that of the 2^nd defendant of 21 September 2020.  The plaintiff has filed none in reply.

3.  This morning, the defendants continue to be represented by Mr Remedios. The plaintiff does not turn up.  In his letter of 27 November 2020 to this Court, the plaintiff points to certain changes in circumstances resulting in the defendants consenting to the transfer of TLW to the HKSH.  He says that the application for variation has been adequately dealt with save on costs.  He says he is reluctant to attend court.

4.  There are in fact 2 changes in circumstances:

(a)  The issue by Canossa of its letter of 2 November 2020 through its solicitors that:

“ Transfer is required to a hospital with intensive care support and continuous renal replacement therapy. Unless this is done urgently, it may not be possible to transfer [TLW].”

(b)  As a result of that letter, the defendants have indicated their consent to the transfer;

(c)  However, it appears that no place at the HKSH could be secured for TLW. Parties have then developed another dispute as to whether TLW should be transferred to Gleneagles Hospital instead, and whether there should be a change of her medical teams;

(d)  TLW is now still in Canossa;

(e)  The 2^nd change is that the hearing before the Guardianship Board has taken place.  It did so on 27 November 2020.  The Board has notified parties that it will hand down its decision within 7 days of the hearing, ie by 4 December 2020;

(f)  Once the Board has handed down its decision and a guardian appointed, the plaintiff’s application for variation will become entirely academic.

5.  I repeat my observations made in my 7/9/2020 Decision.  Allowing the application would allow the plaintiff powers not just to override the views of his siblings but also that of the Guardianship Board.  I repeat further my observations on the quality of the evidence filed by the plaintiff in support. He has filed no further evidence to supplement his case.  The letter from Canossa, whilst it supports a transfer of TLW to a hospital with the specified facilities, does not support the width of the variation sought by the plaintiff.  I have considered varying the Injunction to allowing TLW to be transferred to HKSH.  But given the practical difficulty in securing a space there for TLW, and the imminence of the Board’s decision, I do not find it appropriate to pre-empt the Board’s decision or the decision of the guardian to be appointed.  In all the circumstances, in the light of the evidence before me and the width of the application, I dismiss the application.

6.  I will hear parties on costs.

The Plaintiff was not represented and did not appear

Mr Leo Remedios and Ms Alice Lau, instructed by Bernard Wong & Co, for the 1^st to 3^rd Defendants

Mr Philip Cheng, of the Official Solicitor

HCMP 2596/2017

[2020] HKCFI 2349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

________________________

________________________

________________________

________________________

D E C I S I O N

________________________

1.  The parties have been before me. For background of the case, I refer to my Decision of 18 April 2018[1]. On that day, I ordered, with some amendments, the continuation of an ex parte Injunction Order which the plaintiff had earlier obtained against the defendants (“Injunction Order”). I refer also to my other decision of 18 September 2018[2] relating to an application by the defendants for an unless order against the plaintiff.

2.  The parties have since commenced HCMH 83/2018 and HCMH 28/2019.  On 22 November 2019, the Official Solicitor was ordered to be appointed as the committee of the estate of the parties’ mother (“TLW”). 

3.  On 27 August 2020, the plaintiff sought to apply, on an ex parte basis, for certain amendments to the Injunction Order, that:

“ Para 1.1.2 of the [Injunction Order] be varied to the extend [sic] to include the choice of hospital of [TLW] and nursing care arrangement and the costs and expenses be paid by the official solicitors, committee of [TLW].”

4.  The relevant papers were on that day placed before me.  I noted the involvement of the Official Solicitor.  I noted that there had been communications between the parties in relation to the transfer of TLW from Canossa Hospital (Caritas) (“Canossa”) to Hong Kong Sanatorium & Hospital (“HKSH”). In their letter dated 13 August 2020 to the plaintiff, Messrs Bernard Wong & Co, solicitors for the defendants, in fact said that “We have instructions to receive service of any application(s) you may wish to make to Court for the transfer of Mother from Canossa to HKSH”.  There was no secrecy which would have justified the plaintiff proceeding with the application on an ex parte basis.  No explanation was given as to why the papers were not served upon the defendants.  I on 27 August 2020 directed inter alia service of the papers on the defendants and Official Solicitor and a return date be obtained in accordance with the Rules of the High Court.  

5.  Service was effected by the plaintiff on 27 and 28 August 2020.  A return date of 4 September 2020 before the Summons Judge was obtained.

6.  Late in the afternoon on 3 September 2020, the plaintiff wrote in and claimed that he was “unable to accommodate the new court date”.  He further said that he had lost his voice and could not talk.  He asked the matter to be postponed to 18 September 2020.  When giving directions in response, I pointed out that the hearing date of 4 September 2020 was not a new court date, but one assigned pursuant to Practice Direction 5.3 upon the plaintiff having properly filed his inter partes summons. Ultimately, having ascertained the stances of the other parties, I directed the hearing to proceed as scheduled, and indicated that further directions might be given during the hearing.

7.  This morning, the plaintiff appears in person.  He was able to talk. Mr Leo Remedios appears for the defendants.  Mr Philip Cheng appears on behalf of the Official Solicitor.

8.  The amendments sought by the plaintiff comprise 2 parts:

(a)  an extension to choice of hospital and nursing care (“Limb 1”); and

(b)  payment of costs and expenses by the Official Solicitor, the Committee of TLW (“Limb 2”).

9.  The immediate reason that led to the application is the disagreement between the parties as to whether TLW should remain hospitalized at the Canossa, or whether she should be transferred to the HKSH.  The plaintiff insists upon the transfer, which the defendants object. 

10.  As both Mr Remedios and Mr Cheng have submitted, allowing the application would allow the plaintiff powers not just to override the views of his siblings but also that of the Guardianship Board (applications before which are pending).

11.  The Official Solicitor objects to the application.  Specifically in respect of Limb 2, Mr Cheng submits that whether TLW is going to stay at Canossa or HKSH, the medical bills will be settled by TLW’s estate for her interest.  There is no compelling reason for making a mandatory injunction against TLW’s estate in that regard.  Further, Mr Cheng submits that if the plaintiff takes the view that TLW is in imminent danger because of the poor medical care provided by D2’s medical team, he should proceed with the action herein to obtain the final injunction.  Mr Cheng submits that a further application for varying the Injunction Order is an abuse of process.

12.  Mr Remedios echoes and adopts Mr Cheng’s submissions in so far as Limb 2 is concerned.  In respect of Limb 1, Mr Remedios’ principal submission is that the plaintiff’s application is unsupported by any kind of medical evidence which positively indicates that there is a need of any added medical benefit for the transfer.

13.  I note also that applications have been made before the Guardianship Board for the guardianship of TLW.  Hearing has been pending.

14.  Mr Remedios asks for the dismissal of the application, and if this Court is not prepared to do so at this stage, adjournment for substantive argument with directions on the filing of evidence.

15.  This is the first hearing of the application.  There is force in Mr Remedios’ submissions about the insufficiency of the medical evidence that the plaintiff has so far adduced (which principally takes the form of 2 letters of Dr Alex Chow and Dr Chuang Lai dated respectively 31 July 2020 and 22 January 2020).  Nowhere has it been said that the care which TLW has been receiving at Canossa has been sub-standard, to the extent that she has to be transferred.  In the course of his oral submissions, the plaintiff says that he has asked the doctors to tell the truth, but that they were reluctant to criticize their fellow professionals.  I cannot receive such evidence given in the course of submissions.  In any event, the reality remains that the medical evidence that is before me is sparse.

16.  In the course of the hearing, the plaintiff stressed emotionally a number of times that TLW has lost her toe, that she might lose further one of her lower legs, and that her life expectancy is short.  I have considered what he submitted to me.  Bearing in mind TLW’s age and health conditions, and in the absence of any evidence to that effect, I cannot infer that those were the results of any sub-standard care and treatment which TLW had received, and that the transfer requested would be in her interest.  I note further that in the letter of 22 January 2020, Dr Chuang Lai said that “I support the idea of Professor Szeto of moving [TLW] to [HKSH] … when her condition is stable”.  But as Mr Remedios has pointed out, there is no evidence that the current condition of TLW is stable.  It should also be emphasized that by the proposed variation, the plaintiff is not seeking simply a transfer of TLW from Canossa to HKSH, but the general power to inter alia override his siblings over the choice of hospital.

17.  I point out on the other hand that there is some evidence capable of being regarded as evidence in support of the plaintiff’s application — see in particular the part of Dr Chuang Lai’s letter cited above.  Given such evidence, though particulars are wanting, I am not prepared to dismiss the application outright.

18.  On the other hand, I will not grant the application without affording the defendants the opportunity to file evidence.  This is particularly so given the unsatisfactory quality of the evidence which the plaintiff has placed before me

19.  All matters relating to the health and welfare of a 96-year-old involve some unpredictability and urgency.  But TLW is currently already in the hands of a team of professionals.  The existing medical costs are about HK$1,000,000 per month, which give some indications as to the quality of the treatment TLW has been receiving.  Even the medical evidence adduced by the plaintiff suggests that if there is to be any transfer, the same team should still be retained.  There is no evidence before me which suggests that any transfer ought to be immediate.  Even when orally explaining his plan to me on the treatment of TLW, the plaintiff is only able to say that, if a transfer is permitted, he will then consult a senior doctor at HKSH (Professor Lai) to work out a further plan, and that he will also locate the nurse and helper who had previously been taking care of TLW to assist (though in the case of the helper, who is currently in the Philippines, the plaintiff does not even have her address).  The plan does not appear to me to be a very detailed or concrete one.

20.  I have therefore decided to adjourn the summons for substantive argument.  I give the directions set out at §32 of Mr Remedios’ written submissions.  I direct that 3 hours be reserved.  I order that the listing of the matter be expedited.

The Plaintiff appeared in person

Mr Leo Remedios and Ms Alice Lau, instructed by Bernard Wong & Co, for the 1^st to 3^rd Defendants

Mr Philip Cheng, of the Official Solicitor

HCMP 2596/2017

[2018] HKCFI 2241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

______________

______________

________________________

DECISION

________________________

The application

1.  This is the hearing of a summons dated 31 July 2018 (“Summons”) taken out by the defendants.  The defendants seek thereby, under Order 42, rule 2 and the court’s inherent jurisdiction, an unless order for the plaintiff to file his Statement of Claim.

The background

2.  For background of the case, I refer to my Decision of 18 April 2018.  On that day, I ordered, with some amendments, the continuation of an ex parte Injunction Order which the plaintiff had earlier obtained against the defendants (“Injunction Order”).  I further ordered, amongst other things, that the action do continue as if commenced by Writ, and granted the plaintiff consequential leave to file and serve a Statement of Claim within 28 days from the date of the Order.  The Order (“Order”) was dated 18 April 2018, and was sealed on 18 May 2018.

Plaintiff’s failure till date to file his Statement of Claim

3.  On 10 May 2018, Messrs Bernard Wong & Co, solicitors actingfor the defendants (“BW & Co”) issued to the plaintiff two letters.  One wasissued to the address the plaintiff stated in the Originating Summons he tookout (“OS Address”).  The other one was issued to another address which theplaintiff had stated to be his in some correspondence (“the Other Address”).  The two letters were otherwise in the same terms.  The plaintiff was reminded to file his Statement of Claim by 16 May 2018 (ie 28 days from the Order).

4.  On 15 May 2018, the plaintiff wrote to BW & Co and said that the Order had not been delivered to him.  He sought an extension of 28 days “from the day the Court order is delivered”.  In that letter, the plaintiff stated his address to be the OS Address.

5.  On 17 May 2018, BW & Co replied and agreed to the extension sought.  It was also said that “please take notice that no further extension will be agreed to by our clients”.  The reply was addressed to the OS Address.

6.  By letter dated 21 May 2018 addressed and delivered by hand to the OS Address, a copy of the sealed Order was served upon the plaintiff.  28 days from that date of service fell on 18 June 2018.

7.  On 17 June 2018, the plaintiff wrote to BW & Co and sought another extension of 30 days.  In this letter, the plaintiff stated his address to be the Other Address.

8.  By letter dated 20 June 2018 and addressed to the Other Address, BW & Co acceded to the request.  Therein, the fact that that was the plaintiff’s second request for extension was noted.  It was further said that “… as you are acting in person, our clients will not object to your request…”

9.  By two letters both dated 16 July 2018, one issued to the OS Address and the other to the Other Address, BW & Co wrote to the plaintiff and reminded him that the extended deadline for him to file his Statement of Claim fell on 18 July 2018.  No reply has been received from the plaintiff.  Nor has any Statement of Claim been filed.

10.  On 23 July 2018, BW & Co again wrote to the plaintiff at the OS and Other Addresses.  The failure on the plaintiff’s part to file his Statement of Claim was pointed out.  It was further said that “… unless you do file and serve on us the Statement of Claim on or before Thursday the 26^thday of July 2018, we shall apply to Court to dismiss the above action without further warning.”

11.  Still, no Statement of Claim was filed.  On 31 July 2018, the defendants took out the present Summons.  The defendants seek an order that unless the plaintiff files his Statement of Claim within the specified time, the Originating Summons herein be struck out, and the Injunction Order be discharged.

12.  I have read the affirmation of service of Lau Wai Ming.  I am satisfied that the Summons and all supporting evidence have been validly served upon the plaintiff on both the OS and the Other Addresses.

Discussion

13.  The plaintiff has failed to file his Statement of Claim despite two voluntary extensions, and despite repeated reminders by the defendants.  The latest reminder was simply ignored. More than six further weeks have lapsed since the Summons was taken out.  No step has been taken by the plaintiff in the meantime to try to file his Statement of Claim.  No explanation has been tendered by him.  Given the fact that the parties’ dispute concerns the welfare of their aged mother, it is in the interest of all parties involved that the plaintiff should pursue the action as expeditiously as possible. 

14.  It is also important to bear in mind the existence of the Injunction Order.  It was first obtained by the plaintiff on an ex parte basis.  A party who has been awarded an interlocutory injunction ought to prosecutethe underlying proceedings expeditiously and diligently.  Rather than doing that, the plaintiff has despite the lapse of five months from the Order failed to file his Statement of Claim. 

15.  In the circumstances, I am of the view that the facts justify the exercise by this Court of its discretion to grant the unless order sought. 

Disposal

16.  I grant the order sought, with some amendments proposed by me. 

17.  I have heard Mr Remedios on costs.  Despite his application for summary assessment, I am concerned that the Statement of Costs has not been served upon the plaintiff.  In the circumstances, I order that the costs of this application be to the defendants, to be taxed if not agreed.

The plaintiff was not represented and did not appear

Mr Leo Remedios, instructed by Bernard Wong & Co, for the 1^st to 3^rd defendants

HCMP 2596/2017

[2018] HKCFI 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

______________

______________

______________

DECISION

The application

1.  There are two applications before me:

(a) the summons dated 28 November 2017 taken out by the plaintiff for the continuation of the Order made by Mimmie Chan J on 22 November 2017 (“the Continuation Summons”); and

(b) the summons dated 6 April 2018 by the defendants for an Order that the action do continue as if commenced by Writ, and consequential directions (“the Directions Summons”).

The background

2.  The plaintiff has five brothers and sisters.  Their mother is Madam Tang.  She is now about 93 years of age.  Her health has not been good.  The plaintiff claims that she has not been adequately taken care of, and that some of his brothers and sisters have been trying to prevent him from having access to his mother.  He took out the Originating Summons herein on 22 November 2017.  He seeks an injunction against three of his brothers and sisters.  He seeks to restrain them from (i) preventing Madam Tang from having contact with friends or family members, including in particular the plaintiff; (ii) seeking to persuade or coerce Madam Tang into agreeing to give a “do not resuscitate” direction to her medical doctors; (iii) interfering in the provision of care and support to Madam Tang; (iv) refusing Madam Tang access to health and social care professionals from Hong Kong Sanatorium & Hospital and/or medical professional of her choice; and (v) making any decision purportedly for Madam Tang and/or conducting themselves in any way which is detrimental to the interest, welfare and/or well-being of Madam Tang.

3.  Also on 22 November 2017, the plaintiff attended before Mimmie Chan J and obtained on an ex parte basis an interlocutory injunction against the defendants (“the ex parte Injunction Order”).  The three defendants were thereby restrained, until further order of the Court, from (i) preventing Madam Tang from having contact with the plaintiff or preventing the plaintiff from gaining access to her; (ii) interfering in the plaintiff’s provision of care and support to Madam Tang, and (iii) refusing Madam Tang access to health professionals of her choice.

4.  On 28 November 2017, the plaintiff took out the Continuation Summons. The return date was 1 December 2017.  On 30 November 2017, the 1^st defendant filed his affidavit in opposition.

5.  On 1 December 2017, the parties attended before L Chan J.  The plaintiff appeared in person.  The defendants were represented by Mr Remedios.  At the conclusion of the hearing, L Chan J struck out paragraph (iii) of the ex parte Injunction Order. The reason was that Madam Tang had not been able to communicate with others.  Paragraph (iii)was therefore useless.  The plaintiff agreed to that.  The ex parte Injunction Order was otherwise continued with some amendments, in the following terms (“the inter partes Injunction Order”), that:

“ The ex-parte interim injunction order granted by The Honourable Madam Justice Mimmie Chan on 22^nd day of November 2017 be amended as below and shall continue until determination of the Plaintiff’s Summons filed on the 28^th day of November 2017 or further order:

1.1  The 1^st, 2^nd and 3^rd Defendants be restrained from

1.1.1 Until further order of the Court, preventing Madam Tang Lai Wah (“Madam Tang”) from having contact with the Plaintiff or preventing the Plaintiff from gaining access to Madam Tang for so long as Madam Tang is hosptialised;

1.1.2  Until further order of the Court, interfering in the Plaintiff’s provision of medical care and medical support to Madam Tang.”

Directions were also given to the parties for filing of further evidence.

6.  Two matters about the inter partes Injunction Order should be noted:

(a) the scope of paragraph 1.1.1 has been limited to “so long as Madam Tang is hospitalized”; and

(b) on the question of payment of medical expenses, whilst it is not explicit on the face of the Order, the transcript of the hearing before L Chan J makes it clear that paragraph 1.1.2 was made on the basis that if the plaintiff was to engage doctors, he would have to pay for the doctor’s fees.

The hearing of the Continuation Summons

7.  The parties have, in compliance with the directions given by L Chan J, filed further evidence in support / opposition of the Continuation Summons. Despite those additional affidavits, Mr Remedios, who continued to appear for the defendants, helpfully confirmed in his written submissions that the defendants “do not objection to [the inter partes Injunction Order] being continued subject to one matter, namely that “any medical care and medical support provided by the Plaintiff to Madam Tang be paid for by the Plaintiff.”  Mr Remedios seeks an order that paragraph 1.1.2 of the inter partes Injunction Order be amended accordingly through application of the slip rule.

8.  The plaintiff continued to appear in person.  In his written submissions, he indicated that Madam Tang had been responding positively towards the latest care and treatment which she received.  He specifically said that “The injunction granted by the Hong Kong High Court had the desired effects on the defendants, and as a consequence my ninety-three-year-old Mother and I are very grateful that her near-death illness has subsided and is on her recovery phase.”

9.  This morning, the plaintiff invited me to amend the inter partes Injunction Order by ordering that “the plaintiff is to make all the decisions on the medical care and health care of the plaintiff’s mother”.  If I were to make that amendment, I would give the plaintiff the power to override not just all his siblings, but potentially all medical professionals.  This power is far wider that the injunction which the plaintiff is seeking in the Originating Summons.  I note that the plaintiff is not medically trained.  I refuse to make the amendment.

10.  In the circumstances, I am satisfied that the inter partes Injunction Order in its current terms, subject to the addition of the words “any medical care and medical support provided by the Plaintiff to Madam Tang be paid for by the Plaintiff” at the end of paragraph 1.1.2, should be continued.

The Directions Summons

11.  I have considered the various affidavits filed by and on behalf of the parties.  I have also considered the submissions of Mr Remedios and the plaintiff.  There are indeed factual matters which are in dispute, and potentially hotly.  They include whether the defendants had caused Madam Tang to have been discharged from hospital prematurely, whether the plaintiff had made threats to Madam Tang and the 1^st defendant, whether the plaintiff had been denied access to Madam Tang whilst she was at her residence, whether the plaintiff had been refused access to Madam Tang’s medical records, and whether the defendants had otherwise provided adequate care to Madam Tang.  These are all issues which cannot be appropriately adjudicated upon summarily on affidavit evidence only.  I further note that in his written submissions, the plaintiff was still trying to offer evidence which has not been covered by his previous affidavits.  All these will have to be tidied up so as to make the action trial ready.

12.  I have considered the appropriate procedural options ahead.  One alternative to ordering that the action be proceeded with as if commenced by writ is to order the attendance of witnesses for cross-examination.  The action will become ready for trial earlier.  Time is important, given the age of Madam Tang.  On the other hand, given the imposition and continuation of the inter partes Injunction Order, and that the status quo appears to have been satisfactorily maintained, time pressure is slightly off.  Given the extent of the dispute on facts, and the fact that the action was only commenced in late November last year, I am of the view on balance that I should accede to the defendants’ application and order that the action should be continued as if commenced by writ.  I also made the directions sought in the Directions Summons.

13.  I will hear the parties on costs.

The plaintiff appeared in person

Mr Leo Remedios, instructed by Bernard Wong & Co, for the 1^st to 3^rd defendants