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Lo Kai Shui v Hsbc International Trustee Ltd And Others

Judgment Cited authorities 25 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date18 August 2023
Neutral Citation[2023] HKCA 983
Year2023
Subject MatterCivil Appeal
Judgement NumberCACV181/2023
CourtCourt of Appeal (Hong Kong)
CACV329/2021 LO KAI SHUI v. HSBC INTERNATIONAL TRUSTEE LTD AND OTHERS

CACV 329/2021, CACV 181/2022, CACV 180 & 181/2023,

CAMP 137/2022, [2023] HKCA 983

On appeal from [2021] HKCFI 1539

(Heard together)

CACV 329/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 329 OF 2021

(ON APPEAL FROM HCA NO 404 OF 2018)

________________________

BETWEEN
LO KAI SHUI Plaintiff
and
HSBC INTERNATIONAL TRUSTEE LIMITED 1st Defendant
LO KA SHUI 2nd Defendant
LAW WAI DUEN NINA 3rd Defendant
KSL MANAGEMENT LIMITED 4th Defendant
HSBC TRUSTEE (HONG KONG) LIMITED 5th Defendant

________________________

AND

CACV 181/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 181 OF 2022

(ON APPEAL FROM HCA NO 404 OF 2018)

________________________

BETWEEN
LO KAI SHUI Plaintiff
and
HSBC INTERNATIONAL TRUSTEE LIMITED 1st Defendant
LO KA SHUI 2nd Defendant
LAW WAI DUEN NINA 3rd Defendant
KSL MANAGEMENT LIMITED 4th Defendant
HSBC TRUSTEE (HONG KONG) LIMITED 5th Defendant

________________________

AND

CACV 180 & 181/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 180 AND 181 OF 2023

(ON APPEAL FROM HCA NO 404 OF 2018)

________________________

BETWEEN
LO KAI SHUI Plaintiff
and
HSBC INTERNATIONAL TRUSTEE LIMITED 1st Defendant
LO KA SHUI 2nd Defendant
LAW WAI DUEN NINA 3rd Defendant
KSL MANAGEMENT LIMITED 4th Defendant
HSBC TRUSTEE (HONG KONG) LIMITED 5th Defendant

________________________

AND

CAMP 137/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 137 OF 2022

(ON AN INTENDED APPEAL FROM HCA NO 404 OF 2018)

________________________

BETWEEN
LO KAI SHUI Plaintiff
and
HSBC INTERNATIONAL TRUSTEE LIMITED 1st Defendant
LO KA SHUI 2nd Defendant
LAW WAI DUEN NINA 3rd Defendant
KSL MANAGEMENT LIMITED 4th Defendant
HSBC TRUSTEE (HONG KONG) LIMITED 5th Defendant

________________________

(Heard together)

Before: Hon Kwan VP, Yuen JA and G Lam JA in Court
Date of Hearing: 14 June 2023
Date of Judgment: 18 August 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP:

1. On 1 June 2021, Wilson Chan J handed down his judgment (“Judgment”)[1] in these four applications: two applications brought by the 1st defendant HSBC international Trustee Limited (“Trustee”) and the 2nd defendant Lo Ka Shui (“KS”) respectively to strike out parts of the statement of claim in this action brought by Lo Kai Shui (“Lu’s Action” and “Lu”); an application of Lu for an order under Order 15 rule 14 of the Rules of the High Court that any judgment or order given in HCA 3246/2016 and HCA 355/2018 (collectively “Madam Lo’s Actions”) and any appeals therefrom shall not be binding on him in Lu’s Action; and an application of Lu for leave to amend his statement of claim in Lu’s Action.

2. Madam Lo’s Actions were brought by Madam Tao Soh Ngun (“Madam Lo”) against the Trustee. Judgment was given by the same judge on 22 May 2019 (“2019 Judgment”)[2] after a trial of 33 days.

3. In the Trustee’s striking out application, the Trustee argued and it was held in the Judgment that in respect of three claims in Lu’s Actions that would appear to overlap with certain claims in Madam Lo’s Actions (“Overlapping Claims”)[3], the 2019 Judgment gave rise to cause of action estoppel and issue estoppel. Lu is therefore barred from advancing the Overlapping Claims on grounds of res judicata. Further, there was abuse of process (Henderson v Henderson[4] abuse, or res judicata in the wider sense) in that it is manifestly unfair to the Trustee and contrary to public interest for Lu to bring the Overlapping Claims in Lu’s Action when he could and should have raised those claims in Madam Lo’s Actions by joining as a co-plaintiff and be bound by the outcome of Madam Lo’s Actions. Moreover, the administration of justice would be brought into disrepute in that running the Overlapping Claims in Lu’s Action would constitute a collateral attack on the 2019 Judgment. Hence, Lu should be barred from bringing the Overlapping Claims on the ground of abuse of process as well. The judge ordered sections D, E, F and G of the statement of claim (ie §§32 to 100) to be struck out.

4. In KS’s striking out application, he argued and it was held in the Judgment that there was Henderson v Henderson abuse in that those parts of the statement of claim targeted in this striking out application would raise issues already raised and decided in Madam Lo’s Actions and issues that could and should have been litigated against KS in Madam Lo’s Actions. Raising such issues in Lu’s Action would amount to a collateral attack against the 2019 Judgment. The judge ordered §§135, 136, 137, 138.3, 138.4, 138.6, 140.3, 140.4, 140.6 and 142, and the words “D, E, F, G” in §149 of the statement of claim to be struck out.

5. Lu’s application under Order 15 rule 14 was dismissed as academic and unnecessary. It is not necessary to say anything further about this as the appeal against the dismissal of this application was not pursued at the hearing before us[5].

6. In respect of Lu’s application to amend the statement of claim, the judge disallowed the proposed amendments that are ancillary to or form part of one or more of the Overlapping Claims (ie §§32 to 100 of the statement of claim) as he has ordered those parts to be struck out. He also disallowed the amendments concerning an expansion of the “allies” of KS in light of the open-ended nature of such allies as pleaded.

7. Lu appealed against the orders for striking out in the Judgment as of right. This is CACV 329/2021. For the order refusing leave to amend the statement of claim, leave to appeal was granted by the judge for some of the amendments disallowed and by the Court of Appeal for the remaining amendments disallowed. These are CACV 181/2022 and CACV 180/2023. All these appeals were heard together.

8. The amended notice of appeal in CACV 329/2021 contained 12 grounds of appeal. As we have indicated to the parties at the outset of the hearing, we would focus on three issues in the appeal against striking out: (1) whether there is privity of interest between Lu and Madam Lo so that Lu is bound by the 2019 Judgment and barred from asserting identical causes of action and litigating the same issues that have been determined between Madam Lo and the Trustee in the 2019 Judgment[6]; (2) whether there was Henderson v Henderson abuse in bringing the claims objected to by the Trustee and KS in Lu’s Action [7]; and (3) whether bringing such claims in Lu’s Action would constitute a collateral attack against the 2019 Judgment[8].

9. Before dealing with the above issues, it is appropriate to consider ground 12 of the amended notice of appeal, which relates to the alleged failure of the judge to undertake a proper and independent assessment of the disputed issues and the evidence and be seen to have done so, as this would impact on how we should approach the appeals from the Judgment in general.

Extensive incorporation of counsel’s submissions

10. As pointed out in the amended notice of appeal, of the 239 paragraphs in the Judgment, 221 paragraphs were copied, in that they were copied verbatim, or copied verbatim save for minor and non-substantive changes to definitions, abbreviations, case reference format, cross-reference of internal paragraphs and slight adaptations that contain no substantive analysis such as by adding “I agree that” and “As submitted by the Trustee”.

11. In total, 214 paragraphs were reproduced from the submissions of counsel for the Trustee (139 paragraphs) and the submissions of counsel for KS (75 paragraphs). Of the submissions of counsel for Lu, seven paragraphs were reproduced, all taken from the “Executive Summary” but none from the substantive submissions. Only 18 paragraphs in the Judgment were not copied, and none of them contains substantive analysis: seven are introductory comments, seven are concluding comments and four deal with costs. In terms of the numbers of paragraphs, approximately 92% of the Judgment was copied. Of the paragraphs that contain substantive analysis, all of them were copied from the winning parties’ submissions.

12. This court has handed down a judgment recently in Wong To Yick Wood Lock Ointment Ltd v Singapore Medicine Co (a firm) & Ors[9]. It is unnecessary to discuss the principles and authorities that have been thoroughly canvassed in §§14.1 to 28.

13. Mr Eugene Fung, SC[10] submitted on behalf of the Trustee that in applying the test whether a reasonable person apprised of the circumstances would conclude that the judge has not put his mind to the issues and has not rendered an independent and impartial decision, the court should adopt a more ‘nuanced’ approach. Such a reasonable person would include someone physically present during the entire course of the proceedings. Mr Fung, and Ms Elizabeth Cheung for KS[11], submitted that a person who was present during the...

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