YUEN KWOK LEUNG ERIC AND ANOTHER v. MING CHOR PAO by her guardian ad litem CHU KWOK KEE KOOKIE AND ANOTHER

CACV 36/2020, [2024] HKCA 211

On appeal from [2019] HKCFI 3145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 36 OF 2020

(ON APPEAL FROM HCA 1637 OF 2015)

____________________

____________________

(BY ORIGINATING WRIT)

AND

__________________________

(By Order to Carry On of Master S Lo dated 2 November 2017)

________________________

D E C I S I O N

________________________

Hon Kwan VP (giving the decision of the Court):

Introduction

1.  This is the 2^nd defendant’s application for a stay of this Court’s judgments given on 19 April 2021[1] and 17 May 2023[2] (respectively “CA 1st Judgment” and “CA 2^nd Judgment”) pending his application to the Court of Final Appeal for leave to appeal from the judgment of 19 April 2023.

2.  By CA 1st Judgment”, this Court (Lam VP and Chu JA[3]) struck out the 2^nd defendant’s appeal against the judgment of Deputy High Court Judge Ambrose Ho SC given on 20 December 2019 in HCA 1637/2015 with costs.  By CA 2nd Judgment, this Court (Kwan VP and Chu VP) dismissed the 2^nd defendant’s notice of motion applying, out of time, for leave to appeal to the Court of Final Appeal against CA 1st Judgment with costs.

3.  The 2^nd defendant has filed an affirmation and lodged written submissions to support the present application.  The plaintiffs oppose the application and have lodged written submissions.

4.  Having considered the papers and the written submissions, we are of the view that it is appropriate to determine the application on paper without an oral hearing.  We have therefore proceeded to determine  the 2nd defendant’s application on the basis of the documents in the case and the parties’ written submission.

Recusal application

5.  Before dealing with the substantive application, we will first deal with the 2^nd defendant’s application made in the summons that Chu VP be excused from handling all his legal cases on the ground of substantial and grave injustice in that there is “apparently … favouritism towards the parties who were legally represented”.

6.  For the reasons set out below, we are of the view that this application has no merits and should be refused.

(1)  The 2^nd defendant criticized this court’s decisions to strike out his appeal and refuse him leave to appeal to the Court of Final Appeal as disregarding the government’s promotion of the use of enduring power of attorney (“EPA”) and favouring legally represented parties.  However, he has given no particulars to substantiate the assertion of favouritism.  Nor has he provided the basis for asking Chu VP to be disqualified from dealing with the present application and other legal proceedings in which he is involved.

(2)  It would appear that the 2^nd defendant is not asserting actual bias or a case of presumed bias.  His assertion of bias seems to stem from Chu VP’s involvement in both the CA 1st Judgment and CA 2nd Judgment, which are both against him. 

(3)  It is well established that the previous involvement of a judge in cases involving the party and making adverse judicial decisions against him is by itself not a sufficient ground for seeking recusal: 莊裕安v.終審法院 [2020] 5 HKLRD 780 at [81] and the cases cited in it.

(4)  The 2^nd defendant has failed to show that there are circumstances which would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the judge would be biased.  There is, in short, no legal basis for the recusal application.

Application for stay

7.  We turn next to consider the application to stay the CA 1^st Judgment and CA 2^nd Judgment.  Under section 26 of Hong Kong Court of Final Appeal Ordinance, Cap. 494, the Court of Appeal has power to stay a judgment pending an appeal to the Court of Final Appeal.  The section provides as follows:

“(1) Where a judgment appealed from requires the appellant to pay money or perform a duty, the Court of Appeal or the Court, as the case may be, shall have power, when granting leave to appeal or subsequently, either to direct that the judgment shall be carried into execution or that the execution shall be suspended pending the appeal.

(2) Where the Court of Appeal or the Court directs the judgment appealed from to be carried into execution, the person in whose favour it was given shall, before the execution, enter into good and sufficient security, to the satisfaction of the Court of Appeal or the Court, as the case may be, for the due performance of such order as the Court shall make in respect of the appeal.

(3) Where the Court of Appeal or the Court directs that the execution of the judgment appealed from shall be suspended pending the appeal, the appellant shall enter into good and sufficient security, to the satisfaction of the Court of Appeal or the Court, as the case may be, for the due performance of such order as the Court shall make in respect of the appeal.”

8.  In the first place, neither the CA 1^st Judgment nor the CA 2^nd Judgment is a judgment that requires the 2^nd defendant to pay money or to perform a duty.  They fall outside the scope of section 26(1).

9.  Secondly, under section 26(3), if a stay of execution is ordered, an appellant is required to provide good and sufficient security to the satisfaction of this court or the Court of Final Appeal.  The 2^nd defendant has not indicated in his summons, affirmation or written submissions that he is prepared and able to provide security for the stay. 

10.  Thirdly and importantly, to obtain a stay of the judgment pending the appeal to the Court of Final Appeal, an appellant has to satisfy the Court of Appeal that very exceptional circumstances exist, which is a very high hurdle: Whale View Investment Ltd v Kensland Realty Ltd & Ors [2001] 3 HKC 15, at 20I – 22F. 

11.  In this case, the 2^nd defendant’s sole reason for the stay application is that he had gone to the Court of Final Appeal and was told he could directly appeal to the Court of Final Appeal against this court’s decision(s) in this appeal.  We believe what this means is that the 2^nd defendant could make an application for leave to appeal to the Court of Final Appeal despite leave to appeal had been refused by this court.  This, however, is hardly a sufficient reason for granting a stay of execution.

12.  In his written submission, the 2^nd defendant made the following points in support of his stay application:

(1)  He was prevented from attending court hearings or filing court papers due to Covid-19 prevention and restriction measures imposed in the Mainland, where he was residing, and in Hong Kong.

(2)  In handling the sale of Madam Ming Chor Pao’s property and the sale and purchase agreement made with the plaintiffs (“SPA”), he acted with full authority under the EPA dated 15 January 2014 given by Madam Ming.  The EPA was validly given by Madam Ming and had been duly registered.  There were medical reports to certify that Madam Ming was mentally sound and capable when she made the EPA.  It is unfair to deny the validity of the EPA in the proceedings brought by the plaintiff.

(3)  The court was wrong to disregard the effect of Madam Ming’s EPA, thereby ignoring the government’s promotion and encouragement of the use of EPA and favouring legally represented parties. This is grave and substantial injustice.

(4)  This court’s judgment that no good title was given for Madam Ming’s title is unacceptable.  Madam Ming had made a valid EPA which was witnessed by medical practitioner.  The supporting medical certificates had been disclosed to the plaintiffs’ solicitors.  There is no expert to disprove the prima facie validity of Madam Ming’s EPA.

(5)  This court’s judgment that the 2^nd defendant has no locus to enforce the SPA is misleading.  The 1^st defendant (“Kookie”) has no authority to represent the estate of Madam Ming and Master S Lo’s order dated 20 March 2018 was erroneous.

(6)  The preference that this court gave to the expert evidence produced by Kookie is unacceptable as no leave has been given for their production, the reports lack the requisite declarations and they were produced eight months after Madam Ming executed the EPA.

13.  We have in the CA 2^nd Judgment considered and dealt with points (1) to (5).  We need only point out that in [8] to [10] of our judgment, we had considered point (1) and found that the 2^nd defendant has failed to satisfactorily explain his 22 months’ delay in making an application for leave to appeal. 

14.  With regard to points (2) to (5), we have discussed them and explained our reasons for rejecting them in [12(2.1)] to [12(2.3)] of the CA 2^nd Judgment.  In brief, there is a dispute as to the validity of Madam Ming’s EPA, which remained unresolved at the time stipulated for the completion of the sale of Madam Ming’s property.  As such, the plaintiffs’ requisitions had not been adequately answered and Madam Ming was not able to show a good title.  Further, any authority given to the 2^nd defendant under Madam Ming’s EPA ceased upon her death, and the 2^nd defendant’s appeal against the representation order made by Master S Lo had been dismissed by B Chu J.              

15.  As to point (6), we have in [12(2.4)] of the CA 2^nd Judgment pointed out that: (1) two of the medical reports relied upon by the 2^nd defendant were rejected in CKKK v CKB (unreported) CACV 162/2015, 20 September 2016 at [52] to [58]; and (2) the court in that case had accepted the expert evidence of two psychiatrists who had examined Madam Ming in July 2013 (which was before she made the EPA) and preferred their reports to the medical reports relied upon by the 2^nd defendant.  In [12(2.4)], we were merely setting out the holdings of the court in CACV 162/2015, and not stating our findings.  Point (6) is misplaced.

16.  In short, the arguments that the 2^nd defendant put forward to support the present application have no merits.  We are not satisfied that there is any proper basis for staying the CA 1^st Judgment and/or the CA 2^nd Judgment.  We dismiss the 2^nd defendant’s summons.

Costs

17.  Applying the usual rule of costs follow the event, we also order the 2^nd defendant to pay the plaintiffs the costs of this application to be summarily assessed.

18.  We have considered the plaintiffs’ statement of costs.  Having regard to the fact that the papers and issues involved in this application are not voluminous or complex, most of which had been canvassed in the previous application for leave to appeal, we are of the view that on a party-and-party basis, the time incurred for items D1 (preparation of documents) and D2 (perusal of documents & legal research) should be adjusted downwards.  Taking a broad-brush approach, we assess the plaintiffs’ costs at HK$45,000. 

Disposition

19.  Accordingly, we make the following order:

(1)  The 2^nd defendant’s summons filed on 19 May 2023 is dismissed.

(2)  The 2^nd defendant pays the plaintiffs the costs of the summons, summarily assessed at HK$45,000. 

[1][2021] HKCA 476

[2][2023] HKCA 654

[3] As Lam PJ and Chu VP then were.

CACV 36/2020, [2023] HKCA 759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 36 OF 2020

(ON APPEAL FROM HCA 1637 OF 2015)

________________________

________________________

(By Originating Writ)

AND

________________________

(By Order to Carry On of Master S Lo dated 2 November 2017)

________________________

DECISION ON
ASSESSMENT OF COSTS

________________________

Hon Chu VP (giving the decision of the Court):

1.  On 17 May 2023, this Court handed down our judgment[1] dismissing the 2^nd defendant’s notice of motion applying for leave to appeal to the Court of Final Appeal against this Court’s judgment dated 19 April 2021[2].

2.  We also ordered the 2^nd defendant to pay the plaintiffs the costs of the application to be summarily assessed, and gave directions for the filing of a statement of costs by the plaintiffs and a statement of objection by the 2^nd defendant, if he so wishes. 

3.  In compliance with our directions, the plaintiffs filed a statement of costs on 24 May 2023.  The time for the 2^nd defendant to file a statement of objection expired on 7 June 2023.  The 2^nd defendant has until now not filed any statement of objection.

4.  Having considered the statement of costs and taking a broad brush approach, we summarily assess the plaintiffs’ costs at HK$38,000. 

The plaintiffs represented by Fred Kan & Co

The 2^nd defendant, unrepresented, acted in person

CACV 36/2020

[2023] HKCA 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 36 OF 2020

(ON APPEAL FROM HCA 1637 OF 2015)

________________________

__________________________

(By Originating Writ)

__________________________

(By Order to Carry On of Master S Lo dated 2 November 2017)

________________________

J U D G M E N T

________________________

Hon Chu VP (giving the Judgment of the Court):

The application

1.  On 19 April 2021, this Court (Lam VP and Chu JA)[1] handed down our judgment[2] striking out the 2^nd defendant’s appeal against the judgment of Deputy High Court Judge Ambrose Ho SC (“the Judge”) given on 20 December 2019 in the trial of HCA 1637/2015 as being vexatious and an abuse of process. We also ordered the 2^nd defendant to pay the plaintiffs the costs of the appeal summarily assessed at HK$90,000.

2.  By a notice of motion filed on 7 March 2023 together with an affirmation made on the same day, the 2^nd defendant applies for leave to appeal our judgment to the Court of Final Appeal.

3.  The application is opposed by the plaintiffs. Pursuant to directions given by the Registrar of Civil Appeals, the 2^nd defendant and the plaintiffs have filed written submissions.

4.  Having considered the papers and the written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the 2^nd defendant’s application on the basis of the documents in the case and the parties’ written submissions.

Background

5.  The background to this appeal and the litigation history leading to the order striking out the appeal have been set out in our judgment. We will only highlight some of the matters that are directly relevant to the present application. They are:

(1)  The core issue in the trial of the counterclaim before the Judge was whether the 2^nd defendant had the necessary locus to pursue the counterclaim, which was to enforce a sale and purchase agreement dated 27 March 2015 (“SPA”) made between the plaintiffs as purchasers and Madam Ming Chor Pao (“Madam Ming”), acted by the 2^nd defendant pursuant to her Enduring Power of Attorney dated 15 January 2014 (“EPA”), as vendor.

(2)  Madam Ming passed away on 21 November 2016 before the trial which took place in December 2019. Chu Kwok Kee, Kookie (“Kookie”) was appointed to represent Madam Ming’s estate. Kookie and the 2^nd defendant are the sons of Madam Ming.

(3)  At the start of the trial, the plaintiffs and Madam Ming’s estate acted by Kookie reached a settlement, as a result of which the plaintiffs withdrew their claim against the 2^nd defendant. The 2^nd defendant however persisted in pursuing the counterclaim to enforce the performance of the SPA and to compel the plaintiffs to pay the balance of the purchase price.

(4)  The Judge dismissed the counterclaim, holding that the 2^nd defendant has no locus to enforce the SPA. The Judge also held that the requisitions of the plaintiffs had not been adequately answered by the solicitors acting for Madam Ming and that good title was not shown, nor could it be given, on the date of the completion.

(5)  The 2^nd defendant appealed the Judge’s judgment in this appeal. In our judgment, we struck out the appeal on the grounds that: (a) the 2^nd defendant has defaulted in complying with Order 59 rule 5(1)(a) of the Rules of the High Court, Cap. 4A; (b) it is plain and clear that the 2^nd defendant has no locus to pursue any counterclaim based on the SPA on behalf of Madam Ming after her demise; and (c) it is plain and obvious that the appeal is thus frivolous and vexatious and an abuse of process.

Delay

6.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. The time for the 2^nd defendant to apply for leave to appeal against our judgment expired on 17 May 2021. His notice of motion is thus late by almost 22 months.

7.  Under section 24(5) of the Ordinance, the Court of Appeal may extend the time for the filing of a notice of motion. In considering whether to extend the time, we will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the intended application; and (4) the prejudice to the other parties if time was extended.

8.  The 2^nd defendant’s delay of nearly 22 months is a very serious delay. In essence, the 2^nd defendant explained that he was residing in mainland China, he had not received Covid-19 vaccination, and because of the Covid-19 prevention and quarantine measures adopted in the Mainland and Hong Kong he could not return to Hong Kong and would not have been able to enter court premises to file documents or attend hearing.

9.  We note from the case file that the 2^nd defendant had by a letter dated 3 May 2021 to the Registrar of Civil Appeals stated that he intended to “object to the judgment made by the Court of Appeal on 19 April 2021” and attached a notice of intended application for leave to appeal. By letter dated 18 May 2021, the Registrar of Civil Appeals drew the 2^nd defendant’s attention to section 24 of the Ordinance, and pointed out that he should file and serve a notice of motion if he wished to appeal our judgment and that, if necessary, he should seek legal representation, or he should make the necessary arrangements to return to Hong Kong.

10.  Until the filing of the notice of motion on 7 March 2023, the 2^nd defendant had taken no further step in these proceedings. He had not applied for an extension of time to apply for leave to appeal. The 2^nd defendant has also not shown that he had sought legal representation or assistance or made any endeavour to return to Hong Kong. In these circumstances, we do not accept that the 2^nd defendant has satisfactorily explained his long delay. This being the case, he has to demonstrate that his intended application for leave to appeal has a real prospect of success.

Merits of the intended application

11.  As to the merits of the intended appeal, section 22(1)(b) of the Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

12.  The notice of motion did not set out the grounds relied on for the application. In his written submissions, the 2^nd defendant raised the following grounds:

(1)  It was unfair that the judgment was made at the hearing on 19 April 2021 in the 2^nd defendant’s absence. (“Ground 1”)

(2)  In the sale under the SPA, the 2^nd defendant acted with authority given by the EPA, which has been registered with the Registrar of the High Court and the Lands Registry and is prima facie valid. (“Ground 2”)

(3)  It is the plaintiffs’ fault in choosing not to complete the sale. The 2^nd defendant had produced three medical reports showing that Madam Ming was mentally sound and capable around 11 October 2013 until 10 April 2014. (“Ground 3”)

(4)  This Court’s judgment is unacceptable in that: (a) the interpretation that no good title was given to the property sold was wrong as the SPA was lawfully executed since Madam Ming was mentally capable and sound in creating the EPA, which was duly witnessed by medical practitioner; and (b) the medical certificates filed by the 2^nd defendant proved that Madam Ming was mentally capable and sound when executing the EPA. (“Ground 4”)

(5)  The plaintiffs had previously through their former solicitors’ letter dated 21 February 2019 offered to settle the case. It was not accepted by the 2^nd defendant because the probate action was pending. (“Ground 5”)

13.  For the reasons set out below, we are of the view that these grounds are untenable and have no merits:

(1)  Ground 1

The 2^nd defendant is clearly mistaken in thinking that the judgment of 19 April 2021 was made after an oral hearing. As a matter of fact, this Court dealt with the plaintiffs’ summons to strike out the appeal on the basis of the papers without holding an oral hearing: see [18] of the judgment. The 2^nd defendant had lodged written submissions on the summons, which had been considered by this Court: see [17] of the judgment. There is no merit in this ground.

(2)  Grounds 2 to 4

(2.1)  The core issue in the trial and in this appeal is whether the 2^nd defendant has locus to bring the counterclaim to enforce the SPA on behalf of Madam Ming. As pointed out in our judgment (at [25] to [31]), it is plain and clear that he does not have the locus because (a) upon the death of Madam Ming, the 2^nd defendant’s authority under the EPA ceased; (b) by the representation order made by Master Lo (which was upheld by B Chu J), Kookie has been appointed to represent Madam Ming’s estate with full authority to conduct the litigation, including reaching a settlement with the plaintiffs, which is binding on the estate; and (c) the 2^nd defendant has no locus to dispute the settlement.

(2.2)  The mental capacity of Madam Ming when she made the EPA and the validity of the EPA are matters to be resolved in the probate action involving the 2^nd defendant and Kookie. At the time of the trial before the Judge, these disputes had not been resolved.

(2.3)  As to the dispute between the plaintiffs and Madam Ming (and her estate), the focus is on the conveyancing process, namely whether the conveyancing solicitors acting for Madam Ming had adequately answered the requisitions raised by the plaintiffs and shown a good title before completion. Since the dispute as to the validity of the EPA had not been resolved at the conveyancing stage and before completion, the medical certificates relating to Madam Ming’s mental capacity that the 2^nd defendant sought to rely on cannot advance the position of Madam Ming (and her estate) or the 2^nd defendant vis-à-vis the plaintiffs. This is because, even if she had a good title, she would be in breach of the SPA if she failed to show good title by answering the requisitions adequately: Active Keen Industries Ltd v Fok Chi Keong [1994] 1 HKLR 396.

(2.4)  The plaintiffs have relevantly referred to another decision of this Court in CKKK v CKB (unreported) CACV 162/2015, 30 September 2016, at [52] to [58], which considered and rejected two of the medical reports relied upon by the 2^nd defendant. We would additionally observe that in that case, two other psychiatrists who examined Madam Ming in July 2013 found her to be in a severe state of dementia and have by then suffered from mental incapacity for some time. Their expert evidence was accepted by the court in preference to two of the medical reports now relied on by the 2^nd defendant.

(3)  Ground 5

As the plaintiffs’ solicitors correctly pointed out, the letter dated 21 February 2019 from the plaintiff’s former solicitors was a without prejudice letter that should not be referred to in this application. In any event, the fact that there had been previous attempt(s) to reach a settlement is irrelevant.

14.  Further and more importantly, all the arguments advanced by the 2^nd defendant concern the facts and circumstances of the case below. We do not accept the 2^nd defendant’s argument that the case concerns the question of the validity of the EPA mechanism. In our view, the intended appeal does not involve any question of great general or public importance. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

Conclusion and costs

15.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

16.  There is no reason to depart from the usual rule of costs follow the event. We make an order that the 2^nd defendant is to pay the plaintiffs the costs of this application to be summarily assessed. For the purpose of the assessment, (1) the plaintiffs shall within seven days of the handing down of this judgment file and serve a statement of costs which shall not exceed two pages; and (2) the 2^nd defendant may, if so wish, within 14 days thereafter file and serve a statement of opposition which shall not exceed two pages. We will deal with the assessment on paper.

The plaintiffs, represented by Fred Kan & Co

The 2^nd defendant, unrepresented, acted in person