HKCA 491
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 65 OF 2018 and
CIVIL APPEAL NO 346 OF 2018
(ON AN INTENDED APPEAL and APPEAL FROM PROBATE ACTION NO 32 OF 2012)
IN THE ESTATE of SANG LEE also known as LI TIN SANG late of 46 Acre Lane, Brixton, London, S.W.2. England, widow, deceased (“the Deceased”)
|LI CHEONG (李昌)
||LEE KWAI TAI (李桂娣)
also known as LI KWAI TAI
||LI SOO TAN (李素丹)
also known as LEE SOO TAN DOREEN
Before: Hon Lam VP and Yuen JA in Court
Date of Hearing and Judgment: 26 July 2018
Date of Reasons for Judgment: 8 August 2018
R E A S O N S F O R J U D G M E N T
Hon Lam VP:
1. I respectfully agree with the reasons for judgment of Yuen JA. In light of the unsatisfactory conduct of the case on behalf of DL, I should articulate on the duty of a respondent (and those acting for a respondent) in an application for leave when the Court has given directions for a rolled-up hearing.
2. Those directions are usually given after the Court has considered the written submissions (including submissions from the respondent) and formed the view that in the interests of justice, procedural economy, and efficient and proportionate use of judicial resources, it is appropriate to dispose of the matter by a rolled-up hearing. The Court works on the basis that the parties have at least outlined on the papers all the arguments which they wish to deploy.
3. Thus, if there are grounds which a respondent intends to rely upon to support the judgment other than those canvassed by the judge below, those grounds should also be stated in the opposition to leave submissions, instead of leaving it to be raised afterwards. There is no reason why those grounds should not be canvassed to resist the grant of leave, and the failure to do so (leading to more costs being incurred to resolve the matter) would be met by costs sanction (c.f. Asgain Co Ltd v Cheng Ka Yan (No 2)  2 HKLRD 641 at ).
4. This is all the more so when the respondent intends to bring a cross-appeal in a context where leave is required. The time limit for an application for leave to cross-appeal applies in the same way as an application for leave to appeal. Though it may be understandable for a winning party to adopt a wait and see approach initially, as soon as an application for leave is taken out by a losing party, the winning party should proceed to seek leave to cross-appeal expeditiously (and if necessary, seeking an extension of time to bring such application). It is wholly wrong for a respondent to wait for the outcome of the other party’s leave application before initiating his own application for leave to cross-appeal. Such delay is not excusable and it will militate against the respondent’s chance of getting leave for the cross-appeal as a party guilty of inexcusable delay has to show real prospects of success (a higher threshold than the usual reasonable prospect of success, see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd  1 HKC 125) before leave would be granted.
5. A direction for a rolled-up hearing means that if the Court grants leave at the hearing, it would proceed immediately to hear the appeal proper. Hence, those acting for the respondent should ensure that they are in a position to deploy all the respondent’s arguments at the hearing. The proper preparation for the hearing must entail the preparation for a cross-appeal if that is the intended course, including ensuring that the requisite application for leave is before the Court.
6. If a respondent intends to raise new arguments (viz those not yet canvassed in the submissions already lodged in opposition to the leave application) which could materially affect the preparation for the hearing and estimate of time, he and his legal advisers owe the duty to inform the Court and the other parties as soon as practicable. This is a facet of the duty under Order 1A Rule 3 to assist the Court in furtherance of the underlying objectives.
7. I regret to say that in the present instance, those acting for DL had failed to observe such duty. There was ample time between the giving of the direction for a rolled-up hearing on 4 July 2018 and 24 July 2018 (when the further submissions were lodged by Mr Lam) to alert the Court and those acting for LKT of the new points and the intended cross-appeal. Yet not a word was said by those acting for DL during that period. With respect, I cannot accept the explanation of Mr Lam (counsel for DL) that it would have been premature for DL to allude to the intended cross-appeal at an earlier stage. For the reasons I gave above, such an approach goes completely against the underlying objectives in Order 1A introduced by the Civil Justice Reform and the efficient processing of a leave application.
8. As I said, a direction for rolled-up hearing is a case-management measure adopted by the Court to further the underlying objectives in Order 1A. But the attainment of the objectives demands co-operation and a mindset aligned with those objectives on the part of the litigants and those acting for them. It is hoped that those in the legal profession should strive to attune to such mindset (as they have a duty to do so under Order 1A Rule 3) if they have yet to do so.
Hon Yuen JA:
9. On 8 June 2016, DHCJ Yee gave judgment in a probate action (HCAP32/2012) declaring that Madam Lee (Li) Kwai Tai (“LKT”) was the only surviving issue of Sang Lee also known as Li Tin Sang (“the Deceased”) and granting letters of administration of the Deceased’s estate to LKT.
10. On 10 April 2017 however, Madam Lee Soo Tan Doreen (“DL”) applied to intervene in HCAP32/2012 in order to set aside the judgment. LKT opposed DL’s application, but on 5 March 2018, the learned deputy judge granted DL’s application (“the Decision”).
11. On 19 March 2018, LKT applied for leave to appeal the Decision, but her application was refused by the judge on 4 May 2018. On 17 May 2018, LKT applied to this court for leave.
12. After considering written submissions provided by LKT and DL, on 4 July 2018 directions were given by a single judge of this court that there be an oral hearing of the application for leave to appeal, and (if leave is given) for the appeal proper to be heard immediately thereafter, with an estimated length of hearing of 1 hour. No objection was raised to this approach by DL’s legal representatives.
13. However on 24 July 2018, two days before the hearing before this court, Mr Simon Lam counsel for DL indicated in his skeleton submissions that if leave to appeal is granted to LKT (and consequently the appeal proper would be heard immediately thereafter), she (DL) “intends to file a Respondent’s Notice … by way of cross-appeal”. However DL did not file an application for leave to cross-appeal, as required by the rules of court (see Ng Hong Ki v Leung Fong Kiu  1 HKLRD 435, §§24-26).
14.1. At the hearing, we granted LKT leave to appeal, and heard her appeal immediately thereafter. DL opposed LKT’s appeal but on instructions Mr Lam did not apply for leave to cross-appeal, confirming that he has abandoned those parts of his skeleton which dealt with his intended cross-appeal.
14.2. At the conclusion of the hearing, on LKT undertaking by counsel to file the notice of appeal as per the draft in her application for leave to appeal, we allowed her appeal and set aside the judge’s order made on 5 March 2018. We also ordered that DL pay LKT’s costs of her application for leave to appeal (to the judge and to this court) and the costs of the appeal, to be taxed if not agreed. My reasons appear below.
15. To understandthese Reasons for Judgment, it is necessary to set out some of the background.
16. On 22 February 1985, the Deceased died intestate in the UK aged 74.
The 2012 Action
17.1. On 12 December 2012, the Deceased’s nephew Li Cheong (“LC”) issued HCAP32/2012 (“the 2012 Action”) against LKT. LC alleged in the Statement of Claim that:
(1) the Deceased died leaving no wife, no issue and no surviving parents1;
(2) he (LC) and his siblings were the only persons entitled to share in the Deceased’s estate on intestacy2; but
(3) LKT claimed to be the only issue of the Deceased3.
17.2. LC sought declarations that:
(a) the Deceased died intestate;
(b) the Deceased died leaving no issue; and
(c) he (LC) was entitled to the grant of Letters of Administration of the Deceased’s estate.
18.1. On 14 January 2013, LKT filed a Defence and Counterclaim alleging that:
(1) the Deceased is her natural father and she is the surviving natural daughter of the Deceased4; and
(2) she alone is the person entitled to the entirety of the Deceased’s estate by reason of her being the only surviving issue of the Deceased5.
18.2. LKT counterclaimed (amongst other things) for:
(a) a declaration that she is the only surviving issue of the Deceased; and
(b) a grant to her of Letters of Administration of the Deceased’s estate.
19.1. On 22 September 2015, the 2012 Action came on for trial before DHCJ Yee. LC’s case was that LKT was not the Deceased’s natural daughter. Although LKT did not have a birth certificate, her case was that she was born in 1932 to the Deceased who was a seaman, she was brought up in Hong Kong by the Deceased’s mother, and that the Deceased had throughout his life kept in touch with her. In her witness statement, she exhibited (amongst other things) a letter from the...