WONG YUK TUNG v. WONG PO LING (also known as WONG PO LING CLARA) AND ANOTHER

CACV 296/2022

[2023] HKCA 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2022

(ON APPEAL FROM HCA NO 899 OF 2012)

________________________

________________________

________________________

DECISION ON COSTS

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Hon Kwan VP (giving the Decision on Costs of the Court):

1.  On 3 February 2023, we handed down our judgment dismissing the Notice of Motion of the 1^st defendant for leave to appeal to the Court of Final Appeal with an order nisi that she is to pay the plaintiff’s costs of this application. We directed the plaintiff to lodge a statement of costs for summary assessment.

2.  The plaintiff’s solicitors lodged a statement of costs on 7 February 2023. The 1^st defendant has not lodged any response within 14 days thereafter to object to any item of costs.

3.  Having considered the plaintiff’s statement of costs, we allow the costs of the plaintiff in full in the sum of $14,420.

Cedric & Co, assigned by the Director of Legal Aid, for the Plaintiff (Respondent)

The 1^st Defendant (Appellant), acting in person

CACV 296/2022

[2023] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2022

(ON APPEAL FROM HCA NO 899 OF 2012)

________________________

________________________

____________________

J U D G M E N T

____________________

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

1.  On 17 November 2022, we handed down our judgment (“CA Judgment”)[1] in which we ordered the Notice of Appeal filed by the 1^st defendant on 1 August 2022 to be struck out as it appears from the grounds that this appeal is plainly not competent. The full reasons for our judgment are set out in §§13 to 20 of the CA Judgment and will not be repeated. For ease of reference, we will adopt the same terms and expressions as in the CA Judgment.

2.  The 1^st defendant filed a Notice of Motion on 25 November 2022 seeking leave to appeal from the CA Judgment to the Court of Final Appeal. In the event leave to appeal is granted, she seeks a stay of execution of the orders and costs orders of the 2016 Judgment[2], the judgment and orders of the Accounts Judgment[3], and the costs order of this appeal being CACV 296/2022.

3.  Both parties have lodged written submissions in respect of the Notice of Motion. Having considered the papers, we think it is appropriate to determine the Notice of Motion on the basis of the existing materials without an oral hearing and proceed to do so.

4.  These two questions to be raised in the intended appeal are stated in the Notice of Motion and said to be of “general public interests conforming to section 22” of the Hong Kong Court of Final Appeal Ordinance, Cap 484:

(1)  “Could title and interest of charge/mortgaged properties be transferred in a verbal agreement?”

(2)  “What the Real Estate Loan of $2 million stated in paragraph (1) of the SPC Facility Letter dated 24 May 1997 was, if the Real Estate Loan was construed by the courts:

i.  not a consideration paid to the Plaintiff for his 50% share of interest (as declined by the Recorder) and was different from $4.95 million stated in paragraph 11(a) for the entire 100% interest of the Kam Fai Mansion Properties;

ii.  not an interest bearing loan from the 1^st Defendant to the Plaintiff, as declined by Master in Account Taking;

iii.  not a gift from the 1^st Defendant to the Plaintiff or vice versa …”

5.  The 1^st defendant’s application is entirely misconceived.

6.  It has already been decided in the 2016 Judgment that there has been an express common intention, agreement or understanding between the plaintiff and the 1^st defendant that the plaintiff should remain the beneficial owner of the Kam Fai Properties which the 1^st defendant held on constructive trust for the plaintiff[4]. The 1^st defendant’s case that she took out the SPC Loan for the payment of consideration in the sum of $2,000,000 for the plaintiff’s interest in the Kam Fai Properties had also been rejected in the 2016 Judgment[5].

7.  As rightly pointed out by the plaintiff’s solicitors, regarding the two questions in the Notice of Motion, it is the 1^st defendant’s contention that the Recorder was wrong in ruling that there was an unambiguous express verbal agreement between the parties that the plaintiff remained the beneficial owner of the Kam Fai Properties and that the 1^st defendant was advanced $2 million of the SPC Loan. By these contentions made in support of the questions, it is obvious that the 1^st defendant raised the questions to seek to overturn the rulings in the 2016 Judgment. As the 1^st defendant has no right to appeal against the 2016 Judgment as mentioned in the CA Judgment, it is untenable that leave to appeal should be granted to seek the Court of Final Appeal’s determination on these questions, not to mention that the 1^st defendant failed to establish that these questions would involve any great general or public importance which ought to be submitted to the Court of Final Appeal for decision as required under Section 22(1)(b) of the Ordinance.

8.  In contending that the Court of Appeal was wrong to conclude whether and how much of the SPC Loan had been used for the plaintiff’s benefit is a matter of the account taking exercise, the 1^st defendant submitted that the Recorder and the Court of Appeal were wrong in delegating the core issue (ie whether the SPC loan was consideration paid to the plaintiff) in a formal trial to the master in the account taking hearing. Her submission is to no avail, as her claim that the SPC loan was consideration paid to the plaintiff had been rejected by the Recorder in the 2016 judgment. The rest of her arguments all concern, directly or indirectly, the findings in the 2016 Judgment. As she has no right to appeal the matters adjudicated in the 2016 Judgment, she has no right to seek the court’s consideration of these arguments and leave to appeal would not be granted based on any of these arguments.

9.  For the above reasons, the 1^st defendant has failed to meet the threshold requirements under Section 22(1)(b) of the Ordinance. There is no other reason that the intended appeal should be submitted to the Court of Final Appeal for decision. We therefore dismiss the Notice of Motion. As leave to appeal is not granted, her application for stay of execution is also dismissed.

10.  Costs of this application should follow the event. We make a costs order nisi that the 1^st defendant is to pay the plaintiff’s costs of this application, to be summarily assessed on paper. We also order the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations. If no summons is taken out by any party to vary the order nisi within 14 days from the date of this judgment, the costs order nisiwill be made absolute.

11.  We direct the plaintiff’s solicitors to lodge a statement of costs within 14 days from the date of this judgment and the 1^st defendant may lodge her response within 14 days thereafter if she wishes to object to any item of costs.

Cedric Yeung & Co, assigned by the Director of Legal Aid, for the Plaintiff (Respondent)

The 1^st Defendant (Appellant), acting in person

CACV 296/2022

[2023] HKCA 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2022

(ON APPEAL FROM HCA NO 899 OF 2012)

________________________

________________________

________________________

DECISION ON COSTS

________________________

Hon Kwan VP (giving the Decision on Costs of the Court):

1.  On 17 November 2022, we handed down our judgment in which we ordered the Notice of Appeal filed by the 1^st defendant to be struck out. We made an order nisi that the 1^st defendant is to pay the plaintiff’s costs of this appeal, to be summarily assessed.

2.  As no party has taken out an application to vary the costs order nisi within 14 days of the handing down of our judgment, that order is made absolute.

3.  The plaintiff’s solicitors lodged a statement of costs for summary assessment on 29 November 2022. The 1^st defendant has not lodged any submission within 14 days thereafter to object to any item of costs.

4.  We consider the amount of costs incurred entirely reasonable. We allow the costs of the plaintiff in full in the sum of $72,810.

Cedric Yeung & Co, assigned by the Director of Legal Aid, for the Plaintiff (Respondent)

The 1^st Defendant (Appellant), acting in person

CACV 296/2022

[2022] HKCA 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2022

(ON APPEAL FROM HCA NO 899 OF 2012)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Background

1.  On 30 September 2016, Recorder Lisa Wong SC (as she then was) handed down a judgment in favour of the plaintiff in HCA 899/2012 (“the 2016 Judgment”). It was ordered, among other things, that the 1^st and 2^nd defendants[1] should account for the sale proceeds of certain properties and that they should pay the plaintiff the sums found to be due on the taking of such accounts. The defendants’ application for extension of time to appeal against the 2016 Judgment was dismissed by the Court of Appeal on 28 February 2018 in HCMP 620/2017[2]. The defendants applied to the Court of Appeal on 6 March 2018 for “reconsideration” of its decision of 28 February 2018 at an oral hearing inter partes. This was dismissed on paper on 11 September 2018 for want of jurisdiction and lack of merits[3].

2.  On 27 June 2018, Lisa Wong J gave further directions for the taking of the accounts (“the 2018 Order”). On 16 December 2020, the 1^st defendant issued a Notice of Appeal in CACV 643/2020 to appeal against the 2018 Order, out of time and without leave. The defendants subsequently applied for extension of time to appeal against the 2018 Order by a summons dated 17 May 2021 in CAMP 167/2021. The application in CAMP 167/2021 was dismissed by the Court of Appeal on 13 September 2021 and the Notice of Appeal in in CACV 643/2020 was struck out[4]. Indemnity costs were ordered against the defendants.

3.  The taking of the accounts took place before Master Kent Yee over three days in May and June 2022. On 29 July 2022, the Master handed down his judgment and decided that the 1^st defendant should pay the plaintiff HK$1,896,765.21 and that the 1^st and 2^nd defendants should pay the plaintiff HK$3,014,200 within 28 days, with interests and costs (“Accounts Judgment”)[5].

4.  The 1^st defendant filed a Notice of Appeal against the Accounts Judgment on 1 August 2022. This is CACV 296/2022.

5.  In the relief sought in her Notice of Appeal, not only does she seek an order to set aside the Accounts Judgment (in paragraph (3)), she also seeks to set aside the 2016 Judgment and the 2018 Order (in paragraphs (1) and (2)).

6.  On 5 August 2022, the Registrar of Civil Appeals made a number of directions on the conduct of CACV 296/2022, paragraph 11 of which read as follows:

“The 1^st Defendant do remove paragraphs (1) and (2) of the relief and the grounds of appeal in relation to the [2016 Judgment] and the [2018 Order] in the Notice of Appeal and file and serve a Supplemental Notice of Appeal against the [Accounts Judgment] on or before 19 August 2022.”

7.  The Registrar made clear in the directions that the Notice of Appeal is liable to be struck out if the 1^st defendant does not file a Supplemental Notice of Appeal by the time stipulated. Leave was granted to the 1^st defendant to lodge written submissions if she should object to the striking out of her Notice of Appeal.

8.  On 16 August 2022, the 1^st defendant lodged her written submissions in objection. In gist, she contended that her appeal against the Accounts Judgment cannot be substantiated without appealing against the 2016 Judgment and the 2018 Order. She has not filed a Supplemental Notice of Appeal.

9.  On 31 August 2022, the Court of Appeal wrote to the parties pointing out that paragraph 11 of the Registrar’s directions required the 1^st defendant to remove also “the grounds of appeal” in relation to the 2016 Judgment and the 2018 Order and as the grounds of appeal took up 5 pages in the Notice of Appeal, it is appropriate that the offending parts of the grounds of appeal should first be identified so that the 1^st defendant could give a more focused response why the offending parts and not the entirety of the Notice of Appeal should be removed and struck out. Directions were given for the plaintiff to lodge a submission indicating which parts of the relief sought (apart from paragraphs (1) and (2) mentioned in the Registrar’s directions) and the grounds of appeal in the Notice of Appeal are liable to be struck out and the 1^st defendant was to lodge a submission in response thereafter. Submissions have since been lodged by the parties. On 25 October, the 1^st defendant also lodged with this court the transcript of proceedings of the trial before Recorder Lisa Wong SC which resulted in the 2016 Judgment.

Submissions of the parties

10.  Mr Nelson Miu submitted for the plaintiff that all the relief sought in the Notice of Appeal should be struck out for these reasons:

(1) paragraphs (1) and (2) seek to overturn the 2016 Judgment and to set aside the 2018 Order, the 1^st defendant has no right to appeal against the 2016 Judgment and the 2018 Order as the defendants’ applications for extension of time to appeal against the 2016 Judgment and the 2018 Order have been dismissed by the Court of Appeal;

(2) paragraphs (4) and (6) seek to challenge the findings of fact in the 2016 Judgment;

(3) paragraph (5) was not and had never been in issue in these proceedings;

(4) the order sought to be set aside in paragraph (7) is consequential to a finding of fact in the 2016 Judgment;

(5) paragraph (8) is a non sequitur, the 1^st defendant has provided no reason why the plaintiff and the Director of Legal Aid should be held responsible for her alleged loss, especially when she has reaped a gross profit of $4 million in selling the property mentioned in January 2021 for $6.9 million;

(6) no cause of action was stated in relation to paragraph (9), the Director of Legal Aid has only recovered costs as ordered by the court; and

(7) the remaining relief in paragraph (3) is not supported by any valid ground of appeal.

11.  As for the grounds of appeal, Mr Miu submitted that all the grounds of appeal are directed to overturning the judge’s findings in the 2016 Judgment, and are liable to be struck out.

12.  In response, the 1^st defendant submitted that she needs to go back to the issue concerning the transaction in 1997 in the 2016 Judgment to appeal against the Accounts Judgment. She further contended that the judge was biased and that the Director of Legal Aid, who has been supporting the plaintiff’s litigation, is liable for the defendants’ damages arising from these proceedings as well as all connected proceedings.

Disposition

13.  The 1^st defendant has no right to appeal to set aside the 2016 Judgment and the 2018 Order or to ask the court to reconsider matters adjudicated therein, as her applications for extension of time to appeal had already been dismissed by the Court of Appeal. Thus, paragraphs (1), (2), (4), (6) and (7) of the relief sought in the Notice of Appeal, which seek to overturn the findings or set aside the order in the 2016 Judgment, must be struck out.

14.  Paragraphs (5), (8) and (9) of the relief sought are not the issues adjudicated, or ought to be adjudicated, in the Master’s Judgment, they are also liable to be struck out.

15.  As for the grounds of appeal, notwithstanding the references to the Accounts Judgment in some paragraphs, essentially they all seek to reargue issues adjudicated in the 2016 Judgment. The Court of Appeal has inherent jurisdiction to strike out a notice of appeal where it appears from the grounds that an appeal is plainly not competent[6]. As the 1^st defendant has no right to appeal against the 2016 Judgment, her grounds in the Notice of Appeal are incompetent and should be struck out.

16.  It is not strictly necessary to deal with the contention in the grounds of appeal[7] that the 2016 Judgment should be set aside because the judge was wrong in making a finding of fact that the plaintiff did not have the benefit of funds used to discharge the Second Mortgage out of the SPC Loan. As rightly submitted by Mr Miu, this contention is wholly misconceived. It is clear from §90 of the 2016 Judgment that no such finding of fact was made. Besides, whether and how much of the SPC Loan had been used for the plaintiff’s benefit is a matter of the account taking exercise and the plaintiff had given full credit for the Second Mortgage in the hearing before the Master.

17.  This leaves paragraph (3) of the relief sought. This is not supported by any valid ground of appeal. The court has jurisdiction to strike out an appeal if there is no possibility that the grounds of appeal are capable of argument[8]. It is noted that this power of the court should be confined to clear and obvious cases[9].

18.  The 1^st defendant reiterated in her submissions lodged on 16 August 2022[10] and 27 September 2022[11] that her appeal against the Accounts Judgment cannot be substantiated without seeking to overturn the 2016 Judgment and to set aside the 2018 Order. She recognised that “in order to set aside the [Accounts] Judgment, the 2016 Judgment and the 2018 Order must also be ‘dismantled’.”[12] She also acknowledged that “The proposed grounds of appeal in CACV 296/2022 are effectively a re-run of [her] arguments that the 97 transaction of the Kam Fai Mansion Properties was a sale and not a constructive trust”[13], which had been held against her in the 2016 Judgment. It is fair to say that all the relief sought in the Notice of Appeal and all the grounds of appeal are directed towards the objective of overturning the 2016 Judgment.

19.  Even after the 1^st defendant has been challenged by the plaintiff for failing to put forward any valid ground to support the relief in paragraph (3), she still failed to provide any standalone and valid argument in support of her appeal against the Accounts Judgment which are not commingled with her challenge of the 2016 Judgment.

20.  The above matters clearly show there is no possibility that her appeal against the Accounts Judgment is capable of argument. Hence, paragraph (3) of the relief is liable to be struck out.

Conclusion and costs

21.  For the above reasons, the entire Notice of Appeal in CACV 296/2022 should be struck out and we so order.

22.  Costs of the appeal should follow the event. We make a costs order nisi that the 1^st defendant is to pay the plaintiff’s costs of this appeal, to be summarily assessed on paper. If no summons is taken out by any party to vary the order nisi within 14 days hereof, the costs order nisi will be made absolute. We also order the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

23.  For the summary assessment of costs, we direct the plaintiff’s solicitors to lodge a statement of costs within 14 days hereof, and the 1^st defendant may lodge a submission within 14 days thereafter if she wishes to object to any item of costs. The 1^st defendant’s submission should not exceed three pages on A4 paper, printed in font size of not less than 14 and in line spacing of not less than 1.5.

Postscript

24.  The 1^st defendant has applied to Lisa Wong J for stay of execution of the Accounts Judgment pending the determination of this appeal in CACV 296/2022, with an application for the judge to be recused from sitting in the matter on the ground of apparent bias. The recusal application and the stay application were dismissed by the judge on 26 September 2022[14].

25.  The 1^st defendant renewed her application by a summons issued on 26 October 2022 in this appeal seeking to stay the execution of: (1) the 2016 Judgment and the Accounts Judgment; and (2) the costs orders in HCA 899/2012, its appeals and “connected proceedings”, and asking the court “to consider the cost entitlement of the 1^st defendant, and to order the Director of Legal Aid to release the sum of $1,195,441.21 of legal cost”. She also filed her affirmation in support of the same date. In essence, she repeated her contention that execution of the Accounts Judgment should be stayed because the factual findings in the 2016 Judgment are in error. She also contended that the 2016 Judgment is wrong in law.

26.  In light of the dismissal of this appeal, we dismiss also the summons issued on 26 October 2022. As the plaintiff has apparently not taken any steps in response to this summons, we make no order as to the costs of this summons.

Mr Nelson Miu, instructed by Cedric & Co, for the Plaintiff (Respondent)

The 1^st Defendant (Appellant), acting in person