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CACV 94/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 94 OF 2011
(ON APPEAL FROM DCCJ NO. 2776 OF 2010)
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BETWEEN
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NG HONG KI
(personal representative of CHAN MO GING, deceased) |
Plaintiff |
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and |
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LEUNG FONG KIU
(acted by the intended Guardian Ad Litem, LEUNG FONG KEUNG) |
Defendant |
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Before: Hon Tang VP, Kwan and Fok JJA in Court
Date of Hearing: 1 November 2011
Date of Judgment: 1 November 2011
Date of Handing Down of Reasons for Judgment: 8 November 2011
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REASONS FOR JUDGMENT
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Hon Tang VP:
1. I have had the advantage of reading Kwan JA's judgment in draft. I respectfully agree with it and have nothing to add.
Hon Kwan JA:
2. This is the defendant’s appeal against an order for summary judgment made by Master K.K. Pang of the District Court on 29 October 2010 and upheld by Deputy District Judge J Wong on 26 January 2011. By the summary judgment granted to the plaintiff, the defendant was ordered to deliver up vacant possession to the plaintiff of the premises at 12th Floor, Siu On Mansion, No. 185 Hennessy Road, Hong Kong (“the Premises”) and to pay mesne profits at the rate of $6,600 per month from 1 November 2010 until the delivery up of vacant possession. The judge further ordered that Leung Fong Keung (“Mr F K Leung”), a brother of the defendant, be appointed as the defendant’s guardian ad litem in handling all matters related to the legal proceedings in this action.
3. The defendant brings this appeal with leave granted by a single judge of the Court of Appeal. The plaintiff has filed a Respondent’s Notice by way of cross-appeal to set aside the order for appointment of a guardian ad litem for the defendant.
4. We dismissed the appeal at the end of the hearing and ordered the defendant to pay 70% of the plaintiff’s costs on appeal. Although the Respondent’s Notice was not pursued upon our indication of dismissing the appeal, we heard arguments on this as the merits of the Respondent’s Notice would have a bearing on the appropriate order to make on the costs of the appeal. These are the reasons for judgment.
5. I will first set out the relevant background matters.
The background
6. By a tenancy agreement dated 1 November 1965 made between Ng Kuen Cheung (represented by his agent Mei Sun Cheong) as the landlord and Leung Sun as the tenant, the former let the Premises to the latter for domestic use from 1 November 1965 at the monthly rent of $420. It was provided in the agreement that the tenancy was determinable by the tenant giving one month’s notice to the landlord or by the landlord giving two months’ notice to the tenant. Ng Kuen Cheung was the registered owner of the Premises.
7. Leung Sun passed away on 2 February 1988. Members of his family continued to reside in the Premises and paid rent to the landlord. The defendant in this action, Leung Fong Kiu (“the defendant”), is a son of Leung Sun and has resided in the Premises at all times.
8. Ng Kuen Cheung died testate in May 1989 bequeathing his estate to his wife Madam Ho Sin Char. She passed away in January 1991. In her will, she left her estate to her husband’s concubine Madam Chan Mo Ging (“Madam Chan”). Madam Chan became the registered owner of the Premises by an assent dated 16 February 1995. She was the plaintiff in this action. She passed away after judgment was granted and an order was made on 17 May 2011 by which her son and the personal representative of her estate, Ng Hong Ki (“Mr Ng”), was substituted as the plaintiff of this action.
9. According to the affirmation of Madam Chan filed in support of her application for summary judgment, it was only in April 2002 that the defendant orally informed her son Mr Ng that Leung Sun had passed away. She had no objection to letting the defendant continue to occupy the Premises on condition that he would pay rent and comply with the other terms of the tenancy agreement. The defendant had been paying rent to her ever since. She averred that the defendant had taken over as the tenant of the Premises.
10. On 28 July 2009, Madam Chan served a transitional notice of termination on the defendant personally, pursuant to section 5(2) of the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004, to terminate the tenancy on 31 July 2010. The defendant acknowledged receipt of the notice of termination by signing his name on a copy of the notice.
11. As vacant possession was not delivered on 31 July 2010, the writ in this action was issued on 13 August 2010. The defendant filed an acknowledgment of service stating that he intended to contest the proceedings and that he was applying for Legal Aid. After the statutory stay for the Legal Aid application had expired, Madam Chan issued a summons for summary judgment on 12 October 2010.
12. On 28 October 2010, Leung Fong Chee (“Mr F C Leung”), the defendant’s eldest brother, filed an affirmation on his behalf. Mr F C Leung stated that the defendant has been suffering from schizophrenia, that he has been a patient under the care of the Department of Psychiatry at the Pamela Youde Nethersole Eastern Hospital since 1998, and that he is still receiving treatment regularly from that hospital. He produced a letter of Dr Chan Ka Po of the hospital on 15 September 2010 confirming the above matters and stating that the defendant had onset of mental illness since 1978. Mr F C Leung requested the court to adjourn the proceedings for at least three months or until such time that legal representation would be granted to the defendant by Legal Aid, as the application for Legal Aid was still being processed and the defendant would need time and assistance to prepare his defence properly. As the judge had remarked, no substantive defence was disclosed in this affirmation.
13. The defendant and Mr F C Leung both attended the hearing before the Master on 29 October 2010. Mr F C Leung was allowed to make oral submission for the defendant. When the Master asked them what the defence to the claim was, they did not say anything apart from repeating that the defendant has mental illness. The defendant acknowledged he had received the notice of termination. The Master refused to adjourn and granted summary judgment to Madam Chan.
14. Legal Aid was granted to the defendant on 10 November 2010. On 20 December 2010, he filed a Notice of Appeal to a judge to appeal the summary judgment, and three further affirmations were filed in support of this appeal, made by Mr F C Leung, his niece Chow Mee Yee Millie, and Mr F K Leung. In these affirmations, a defence was raised for the first time that the defendant was not the tenant of the Premises and that it was his mother, Madam Chow Kwok Hoi, now aged 99, who had taken over as the tenant since Leung Sun passed away in 1988. Thus, it was alleged that the requisite notice to terminate the tenancy had not been served on the proper tenant. There was also exhibited a medical report of Dr Chan Ka Po on the defendant addressed to the Director of Legal Aid dated 15 October 2010 (“the Medical Report”).
The decision below
15. The appeal was heard by the judge on 6 January 2011. He referred to Order 58 rule 1(4) of the Rules of the District Court (“RDC”) and refused to admit the new evidence filed by the defendant after the hearing before the Master, holding that there was no reason why the new evidence could not have been obtained with reasonable diligence for use at the earlier hearing, and in any event the new evidence was incredible so there was no point of admitting it. Having considered the new evidence de bene esse, he came to the view there was no triable issue. He upheld the Master’s decision for summary judgment.
16. The judge granted the application for the appointment of a guardian ad litem for the defendant. He was satisfied on the Medical Report that the defendant came within the definition of a “mentally incapacitated person” (“MIP”) in Order 80 rule 1 of the RDC, namely, that he is “a mentally disordered person … (within the meaning of the Mental Health Ordinance (Cap. 136)) who, by reason of mental disorder …, is incapable of managing and administering his property and affairs.” The judge was of the view that the appointment would be for the benefit of the MIP as although judgment was entered against the defendant, it was possible that the matter could be taken further such as an application for extension of time for execution.
The issues on appeal and cross appeal
17. Two broad grounds were raised by the defendant on appeal and are as follows:
(1) Having held that the defendant was an MIP, the judge should have set aside the Master’s order for summary judgment as the proceedings were conducted without a guardian ad litem to protect the interest of the defendant and were in breach of the provision in Order 80 rule 2(1) of the RDC. The substantive steps taken before the appointment of the guardian were nullities.
(2) The judge was wrong in holding that no triable issue was raised in defence.
18. For the cross appeal, Mr Erik Shum, who appeared for the defendant, raised a preliminary point that the Respondent’s Notice by way of cross-appeal is invalid, as no leave was granted to bring this cross-appeal and it should not be entertained by this court. The plaintiff’s counsel, Mr Herbert Au-Yeung, argued to the contrary and took a fallback position in his written submission seeking leave from this court to bring his cross-appeal out of time if leave to appeal were required. The substantive point raised on the cross-appeal is whether the judge was correct in holding that the defendant was an MIP within the meaning of Order 80 rule 1.
19. It...
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