高等法院（民事訴訟）Mr Recorder Stewart Wong SC4/12/2019[2019] HKCFI 2955
HCA2596/2017
A
HCA 2596/2017 A
[2019] HKCFI 2955
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
D ACTION NO 2596 OF 2017 D
______________
E BETWEEN E
TSUI YUN BUN BARRY Plaintiff
F F
and
G G
LAW WAN TUNG (formerly Defendant
H known as LAW SIU YI BIBY) H
and
I I
Intended
ERWIANA SULISTYANINGSIH Intervener
J J
______________
K K
Before: Mr Recorder Stewart Wong SC in Chambers
L Date of Hearing: 28 November 2019 L
Date of Decision: 5 December 2019
M M
_____________
N N
DECISION
O
_____________ O
P A. INTRODUCTION P
Q 1. By an Amended Summons filed on 27 March 2019 (“the Q
Amended Summons”), Ms Erwiana Sulistyaningsih (“ES”) applied to be
R R
added as a party to this action for the purpose of declaring her interest in
S relation to the charging order absolute dated 4 April 2018 (“the Charging S
Order Absolute”) granted in relation to a property being Flat J, 38/F, Block 5,
T T
Beverly Garden, 1 Tong Ming Street, Tseung Kwan O (“the Property”),
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A A
and to set aside or to discharge the Charging Order Absolute, and to vacate
B B
the registration thereof as well as the charging order nisi dated 1 February
C 2018 (“the Charging Order Nisi”) at the Land Registry, on the basis that C
the creditor of the defendant (“Law”) would likely to be unduly prejudiced
D D
by the making of those Orders.
E E
2. On 30 July 2019, ES’s application for joinder was dismissed
F F
by a Master with costs to Law. The application to set aside therefore, by
G implication at least, also failed. This is the appeal from the Master’s order. G
H H
3. The relevant facts, not in dispute, are as follows.
I I
4. ES, an Indonesian national, was employed by Law as a
J domestic helper from 30 May 2013 to 9 January 2014. J
K K
5. On 16 March 2015, ES issued a writ in the District Court 1,
L together with a statement of claim and a statement of damages, against Law, L
claiming damages for assault and battery, false imprisonment, negligence,
M M
breach of duty of care, breach of contract and breach of the Employment
N Ordinance 2. N
O O
6. On 28 April 2015, an interlocutory judgment, with damages to
P
be assessed, was entered in favour of ES against Law as the latter did not file P
an acknowledgment of service. The assessment of damages took place on
Q Q
4 December 2017 before H H Judge Winnie Tsui. Judgment was handed
R down on 21 December 2017 with damages assessed at HK$809,430.03 plus R
interest and costs (“DC Judgment”). The judgment debt remains outstanding.
S S
T 1
DCPI 569/2015. T
2
Cap 57.
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A A
7. By an assignment dated 17 July 2015, Law purported to
B B
assign her half-share in the Property to the plaintiff (“Tsui”) (who was and
C is her husband and the owner of the other half-share) pursuant to a Deed of C
Separation dated 6 February 2015 (“the Transfer”). By an action in the
D D
Court of First Instance 3, ES as the plaintiff sought an order against Tsui
E as the 1st defendant and Law as the 2nd defendant setting aside the Transfer E
pursuant to section 60 of the Conveyancing and Property Ordinance 4. After
F F
a trial lasting two days 5, by a judgment handed down on 28 December 2017 6
G (“HC Judgment”), I found for ES and set aside the Transfer. I also made G
an order that Law was to pay the costs of the action to ES, which I, by a
H H
decision dated 2 March 2018 7 (“Decision on Costs”) varied to an order that
I Tsui and Law were liable jointly and severally for the costs of the action. I
J J
8. In the meantime, on 13 November 2017, Tsui commenced
K the present action in the Court of First Instance against Law, seeking the K
repayment of HK$3,055,712, plus interest and costs, allegedly to be monies
L L
owing by Law to him. The writ did not name the parties in full but used
M the abbreviated names of “Y B Tsui” and “W T Law” respectively, and was M
later amended to name them in full. Law filed an acknowledgement of
N N
service dated 14 November 2017 indicating that she did not intend to defend.
O On 20 December 2017, Tsui obtained a default judgment against Law. On O
30 December 2017, Tsui applied ex parte for a charging order against Law’s
P P
share of the Property.
Q Q
R R
3
S HCA 2256/2015. S
4
Cap 219.
5
15 and 23 November 2017.
T 6
[2018] 1 HKLRD 487 (English); [2018] 1 HKLRD 505 (Chinese). T
7
[2018] HKCFI 463.
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A A
9. In his affirmation in support of the application for the
B B
charging order, Tsui disclosed the debts owed by Law that he knew of.
C Those include the DC Judgment with costs (said to be about “HK$810,000”), C
untaxed legal costs in the action before me, unpaid credit card bills totalling
D D
not less than HK$400,000, a claim by another person in a pending District
E Court trial which would take place in February 2018 where the claim was E
less than HK$200,000, various utility bills of about HK$25,000, and unpaid
F F
fees to a senior counsel in the sum of HK$130,000 “which was protested by”
G Law. Leaving aside the pending District Court case, the untaxed legal costs, G
and the unpaid fees to the senior counsel in dispute, the total indebtedness
H H
of Law as at 30 December 2017 was about HK$4,290,000 (including the
I judgment debt owed to Tsui). I
J J
10. I found at §48 of the HC Judgment about Law:
K “ On her own evidence, she had and has no other assets and owed K
(and still owe) a lot of money on credit card spending which she
was and is unable to repay, and was and is clearly insolvent but
L L
for her interest in the Property, and I so find.”
M M
This is of course a finding binding on Tsui, Law and ES, as they were all
N
parties before me. The default judgment had not been entered by the end N
of the trial and so what I said did not take into account that judgment debt,
O O
or the underlying debt said to be owed by Law to Tsui.
P P
11. It is therefore clear that as at 30 December 2017, two days after
Q I handed down the HC Judgment which in effect “reverted” the ownership Q
of a half-share of the Property to Law, her only asset was that half-share, but
R R
with a liability of at least about HK$4,290,000. Mr Ching, appearing for
S Law, accepts before me that that is the case, while Tsui, appearing in person, S
agrees that as at the time of his application for a charging order Law did
T T
not have sufficient means of her own to pay all her debts.
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A A
12. On 1 February 2018, the Charging Order Nisi was made. The
B B
Master did not direct Tsui to serve any papers on ES or any other persons.
C On 4 April 2018, the Charging Order Absolute was made. C
D D
13. Solicitors for ES only discovered the Charging Order Nisi
E and the Charging Order Absolute when they did an updated land search E
on the Property in May 2018.
F F
G
B. RECUSAL APPLICATION G
14. Just before the hearing of the appeal on 28 November 2019,
H H
Law makes an application that I should recuse myself from hearing this
I I
matter on the ground of apparent bias, on the sole basis that I, at about noon
J
on 26 November 2019, after I had received the skeleton submissions J
of Mr Ko for ES, but before I received Mr Ching’s on behalf of Law,
K K
I directed that a copy of each of the HC Judgment and the Decision on
L
Costs be included in the hearing bundles. I heard the recusal application L
on 28 November 2019 and dismissed it and said that I would hand down
M M
my reasons together with my decision on the appeal by ES. These are
N
my reasons for dismissing the recusal application. N
O 15. ES is relying on the HC Judgment, in particular my finding of O
fraudulent conveyance against Tsui and Law, to question whether the debt
P P
on which Tsui was suing Law was a genuine debt. As far as I understand
Q Mr Ching’s submissions, since I directed the inclusion of the HC Judgment Q
and the Decision on Costs in the hearing bundles, before I saw Law’s
R R
skeleton, he argues that the fair-minded observer would reasonably
S
apprehend that I might already have accepted (or “sided with”, as S
T
Mr Ching puts it) ES’s case and would not deal with the matter T
impartially. Mr Ching says it is all a matter of timing: if I had directed
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the inclusion of those documents after he had filed his skeleton, he would
B B
have no complaint. He does not allege actual bias.
C C
16. The law regarding apparent bias is not in dispute. Mr Ching
D D
refers to Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd 8
E where Ribeiro PJ, giving the determination of the Appeal Committee of E
the Court of Final Appeal, said:
F F
“ Kwan JA, with whom the other members of the Court agreed,
G noted that this was an apparent bias case with no one suggesting G
actual bias. Her Ladyship referred to the test mentioned above
and found the judgment of Doyle CJ in the Supreme Court of
H South Australia in IOOF Australia Trustees Ltd v SEAS Sapfor H
Forests Pty Ltd, especially helpful in a case involving friction
between Bench and Bar:
I I
… disqualifying bias is not established merely by pointing
to circumstances indicating tension, or even some hostility,
J J
between the judge and counsel. The relevant principles are
directed towards ensuring the appearance and the reality of
K a fair hearing. That is, one in which the case on each side is K
fairly considered. Just as that does not require that a judge
approach the merits of the case with no preconceived views
L about issues that might arise in the case, so long as the judge L
is willing to listen fairly to argument on either side, so the
principle does not require that the judge not have, or at least
M M
not disclose, any adverse views about a particular counsel
appearing in the case. What is important is that the judge
N be willing to consider the case presented by that counsel N
fairly. It is when the hostility between the judge and
the counsel is such that the fair-minded observer might
O reasonably apprehend that the judge will not fairly consider O
the case being presented for the client that disqualifying bias
P is present.” P
Q 17. Even though that case concerned friction between judge and Q
counsel, the general principle is the same for other cases of alleged apparent
R R
bias. The question is whether the fair-minded observer might reasonably
S apprehend that the judge will not fairly consider the case before him. In S
T T
8
(2014) 17 HKCFAR 281 at §21 (footnotes omitted).
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A A
Falcon 9, Ribeiro PJ referred to his own judgment in Deacons v White
B B
& Case Ltd Liability Partnership 10, another determination of the Appeal
C Committee that: C
D “ The court must first ascertain all the circumstances which have D
a bearing on the suggestion that the judge was biased. It must
then ask whether those circumstances would lead a fair-minded
E and informed observer to conclude that there was a real possibility, E
or a real danger, the two being the same, that the tribunal was
biased.” 11
F F
G 18. The circumstances must be such that it: G
H “ would inevitably lead a fair-minded and informed observer to H
conclude that there was a real possibility that the tribunal had
lost its detachment and would approach the case with its mind
I closed to persuasion”.12 I
J J
19. It is therefore necessary to set out the relevant facts leading to
K my direction that the HC Judgment and the Decision on Costs should be K
included in the hearing bundles, at a time when I had the hearing bundles
L L
and ES’s skeleton but not Law’s. The fair-minded observer is taken to
M be informed of the correct facts.13 M
N N
20. In the affirmation of Mr Siu Kit Chung14 dated 31 January 2019
O made in support of ES’s application, under the heading of “Background”, he O
refers to the HC Judgment, in particular my finding at §60 that the Transfer
P P
was a fraudulent conveyance, and uses that in support of ES’s case that
Q Q
9
At §11.
10
(2003) 6 HKCFAR 322 at §20, in turn quoting from the judgment of Lord Phillips of Worth
R Matravers MR (as he then was) in In re Medicaments and Related Classes of Goods (No 2) R
[2001] 1 WLR 700 at §85.
11
The words “or a real danger, the two being the same”, after “real possibility”, are in words of
S Lord Phillips and as quoted in Deacons, but somehow was omitted in the quote in Falcon. S
12
Falcon at §24.
13
Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375 at §51
T per Kwan JA (as she then was). T
14
An assistant solicitor with the firm of solicitors acting for ES.
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A A
the present proceedings and the charging order are used to again defraud
B B
and to obstruct her from enforcing the DC Judgment against the Property.
C Mr Siu (at §18) says that Tsui and Law had “acted dishonestly for a second C
time”, no doubt the first time being, according to him, the fraudulent
D D
conveyance. Mr Siu produces a copy of the sealed judgment of mine,
E but not the reasoned judgment itself, and it is nowhere to be found in the E
hearing bundles.
F F
G 21. In his affirmation dated 3 June 2019 in answer, Tsui refers G
to the HC Judgment and says that as far as he is concerned, that case has
H H
finished and should not be mentioned again.
I I
22. In his affirmation dated 5 June 2019 filed on behalf of Law,
J J
Mr Ching refers to the allegation of dishonesty made by Mr Siu at §18 of
K his affirmation and denies it on behalf of Law. K
L L
23. In the skeleton submissions of Mr Ko filed on behalf of ES on
M
25 November 2019, he refers to the HC Judgment as part of the background. M
He then, in support of ES’s application to add as a party, submits that this
N N
is not the first time that Law tried to avoid payment of the DC Judgment,
O
referring to the earlier occasion where she assigned her half-share to Tsui O
which was then set aside by me under the HC Judgment. He also submits,
P P
by reference to various findings in the HC Judgment, that Law was probably
Q insolvent, that Tsui and Law had “once concerted to defraud [ES]” and Q
the charging order was a second attempt to achieve the same purpose.
R R
S
24. It is therefore clear from the above that ES is relying quite S
heavily on the HC Judgment in support of her case that Law was probably
T T
insolvent, as well as her case that the debt allegedly owed by Law to Tsui,
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A A
the institution of the present action by Tsui to recover the debt, the entry of
B B
the default of judgment upon the lack of any intention to defend by Law,
C and the application for a charging order, are all part of a dishonest scheme C
by Tsui and Law to keep the latter’s share of the Property from the hands
D D
of ES in satisfaction of the DC Judgment, they having a previous similar
E attempt by way of the Transfer which I found in the HC Judgment to be E
a fraudulent conveyance. Of course Tsui and Law deny that there was
F F
any dishonest scheme. Whether the aforesaid arguments of ES are good
G or bad, I have to consider them carefully and impartially upon hearing the G
submissions of all parties, including any submissions any of them may
H H
wish to make by reference to the HC Judgment, including its relevance and
I probative value to the issues before me. Whether such arguments have I
any merits at all, and no matter what submissions are to be made by or on
J J
behalf of Tsui and Law, there can be no doubt that the fair-minded observer,
K knowing the contents of the affirmations and Mr Ko’s submissions and K
thus the reliance placed on the HC Judgment, would inevitably consider
L L
the HC Judgment to be a document which may have to be referred to at
M the hearing, no matter what Law is going to say in her skeleton. Even if M
the HC Judgment is in fact irrelevant to anything, I have to consider it at
N N
the hearing so as to rule that it is so, and to dismiss ES’s reliance thereon.
O I simply have to deal with whatever arguments all parties are going to make O
on the HC Judgment, and the direction by me on 26 November 2019 is
P P
simply to ensure that there will be ready access to such a document at the
Q hearing should there be a necessity to refer to it. Q
R R
25. In his reply submissions, Mr Ching suggests that Mr Ko does
S not seem to need or want the HC Judgment to be included as he has not S
done so. But it is in my judgment a question of having it readily accessible
T T
at the hearing to assist me in case reference, or further reference, is needed
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to make to it in the light of the heavy reliance on it by ES, which is in my
B B
judgment the fairest way to all parties.
C C
26. I fail to see how the direction that a document relied on by
D D
one party, which is not in the hearing bundles, is to be included, even before
E seeing the submissions of other parties, will suggest to the fair-minded E
observer that there is a real possibility or real danger that I am or may be
F F
biased in favour of the party relying on it. Even if I were to reject that
G party’s argument I still need to consider the document first. G
H H
27. The Decision on Costs is nothing but an amendment to
I the costs order I make in the HC Judgment, and is directed to be included I
for the sake of completeness. It is difficult to see how the fair-minded
J J
observer will discern any apparent bias from its inclusion in addition to
K the HC Judgment. K
L L
28. The application for recusal is dismissed for these reasons.
M M
C. THE APPEAL BY ES
N N
C1. ES’s standing
O O
29. The power of the Court to make a charging order is provided for,
P and regulated, by sections 20, 20A and 20B of the High Court Ordinance15, P
and Order 50 of the Rules of the High Court. 16
Q Q
R 30. Section 20B(4) of the High Court Ordinance provides: R
S S
T 15
Cap 4. T
16
Cap 4A.
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“ The Court of First Instance may at any time, on the application
B of the debtor or of any person interested in any property to B
which the order relates, make an order discharging or varying
the charging order.”
C C
D 31. Order 50, rule 7(1), provides: D
“ Subject to paragraph (2) on the application of the judgment
E E
debtor or any other person interested in the subject-matter of
the charge, the Court may, at any time, whether before or after
F the order is made absolute, discharge or vary the order on such F
terms (if any) as to costs or otherwise as it thinks just.”
G G
32. The first issue is whether ES has the standing to apply for
H H
a discharge of the Charging Order Absolute, ie whether she is “interested”
I
in Law’s share of the Property. ES of course has no legal, beneficial I
or security interests in the Property or Law’s share as such. She is only
J J
an unsecured judgment creditor of Law, the half-owner of the Property.
K However, the requirement is being “interested” in the property concerned, K
not having an “interest” in the property. As pointed out by Fox LJ (with
L L
whom Mustill LJ (as he then was) agreed) in Harman v Glencross 17:
M M
“ … the issue in the present case is whether the wife is ‘interested’
in property without having a proprietary interest in it in the strict
N sense. ‘Interested’ is not a technical term of property law and N
is wider in ambit than an ‘interest’ which is.”
O O
33. In my judgment, a creditor, for the purposes of the making
P and discharging of a charging order in favour of a, or another, judgment P
creditor against the property of a judgment debtor which may otherwise be
Q Q
available for the satisfaction of the debt owed, is sufficiently “interested”
R R
in the property.
S S
34. I note the following provisions:
T T
17
[1986] Fam 81 at 101A.
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(1) Section 20(3) of the High Court Ordinance provides:
B B
“ In deciding whether to make a charging order the Court of First
C Instance shall consider all the circumstances of the case and, C
in particular, any evidence before it as to—
(a) the personal circumstances of the debtor; and
D D
(b) whether any other creditor of the debtor would be likely
to be unduly prejudiced by the making of the order.”
E E
(2) Order 50, rule 1(3), provides:
F F
“ The application [for a charging order] shall be supported by
an affidavit—
G … G
(b) stating the name of the judgment debtor and of any creditor
H of his whom the applicant can identify”. 18 H
(3) Order 50, rule 2(2), provides:
I I
“ Without prejudice to the provisions of paragraph (1) the Court
J may, on making the order to show cause, direct the service of J
copies of the order, and of the affidavit in support, on any other
creditor of the judgment debtor or on any other interested person
K as may be appropriate in the circumstances.” K
L L
35. It is therefore clear to me that the intention of the charging order
M regime under the High Court Ordinance and Order 50 is that the interests M
of all creditors of the judgment debtor, including unsecured creditors, and
N N
not just those of the judgment creditor applying for a charging order, have
O to be taken into account, and Order 50, rule 2(2) expressly states that the O
Court may direct any creditor of the judgment debtor be served and thus
P P
given an opportunity to seek to argue why a charging order nisi, usually
Q made ex parte 19, should be made absolute.20 It cannot have been the Q
intention that the class of persons who are allowed to apply to discharge a
R R
charging order absolute after it has been made is to be restrictively construed
S so as to exclude a creditor whose position clearly has to be taken into account S
18
As stated at §50/9A/34 of Hong Kong Civil Procedure 2020, this is “important”.
T 19
Order 50, rule 1 (2). T
20
See also Hong Kong Civil Procedure 2020, Vol 1, §50/9A/23.
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A A
by the Court when considering whether to make a charging order, or before
B B
the charging order is made absolute, especially when that creditor is not
C served with the charging order nisi and thus made aware thereof. Of C
course, in a case where the creditor knows of the charging order nisi but
D D
does not object to it being made absolute or if his objection is dismissed,
E it is difficult to see how he can then apply to discharge the charging order E
absolute after it is made (unless there is a material change of circumstances).
F F
G 36. My view is supported by the judgment of Fox LJ (Mustill LJ G
agreeing) in Harman v Glencross. In that case, the property in issue was
H H
jointly owned by the husband and the wife who were in the process of
I divorcing and the wife had made an application for ancillary relief asking I
for the husband’s share in the property to be transferred to her. She was
J J
held to have the standing to apply to discharge the charging order granted
K against the husband’s share as being interested in the property. Apart from K
the fact that she was a co-owner with a right to occupation which would be
L L
affected by the enforcement of the charging order, it was held by Fox LJ
M that she had the standing on the additional ground that she had made the M
application for ancillary relief claiming a transfer of the husband’s share
N N
in the property. In such circumstances she was a person interested in the
O husband’s share. Fox LJ did not question the proposition that unless and O
until such an order for transfer was made in her favour, the wife had no
P P
interest in or a proprietary right to the husband’s share. This shows that, as
Q the quote from that judgment I set out at §32 above makes clear, and which Q
I respectfully agree, it is not necessary for the applicant for discharge to
R R
have an interest in the property in the strict property law sense.
S S
T T
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37. In Banque Nationale de Paris plc v Montman Ltd 21, Hazel
B B
Williamson QC (sitting then as a Deputy High Court Judge in the Chancery
C Division), after considering Harman v Glencross, said 22 what the statute C
is looking for in terms of standing is:
D D
“ a person who can indeed be said to have some form of interest
E in the property which … is either a proprietary interest or an E
interest akin thereto, in the sense that they are a person who at
least has some interest such that their legal rights or liabilities
F are directly affected by the charging order.” F
G G
38. I agree with this proposition and ES is clearly in my judgment
H such a person as her legal right to have the DC Judgment satisfied from the H
assets of Law, including Law’s share in the Property, is directly affected by
I I
the Charging Order Absolute which confers a priority on Tsui.
J J
39. The situation in Montman was different because in that case
K K
the debtor was a company in liquidation and all the creditor had was a right
L to have the liquidation duly administered. If and in so far as Montman held L
that a mere unsecured creditor is necessarily not sufficiently interested in
M M
the property of a judgment debtor charged or to be charged under a charging
N order, for reasons above, I respectfully disagree. N
O O
40. Mr Ko also argues that the reference to a person “interested
P in the subject-matter of the charge” in Order 50, rule 7(1), is wider than P
section 20B(4) of the High Court Ordinance, which refers to a person
Q Q
“interested in any property to which the [charging] order relates”, and
R includes the underlying judgment debt. I disagree. Plainly, the subject- R
matter of the charge means whatever is being charged, and not the matter
S S
being secured by the charge. In any event, even if the subject-matter
T 21
[2000] 1 BCLC 576. T
22
At 581a –b.
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A A
includes the relevant judgment debt secured by the charge, that means the
B B
judgment debt owed by Law to Tsui, and not the judgment debt owed by
C Law to ES under the DC Judgment. ES cannot be said to be “interested” C
in the judgment debt owed by Law to Tsui.
D D
41. Having decided that ES is interested in Law’s share of the
E E
Property, so that she has the standing to make an application to discharge the
F F
Charging Order Absolute under section 20B(4) of the High Court Ordinance
and Order 50, rule 7(1), as submitted on behalf of Law, it is not necessary
G G
in my judgment to add her as a party to these proceedings formally.
H H
C2. Merits
I I
42. Regarding the merits of the application to discharge, the first
J point taken by ES is that there had been material non-disclosure by Tsui J
when he applied for a charging order ex parte.
K K
L 43. There has been some speculation on behalf of ES whether L
Tsui disclosed the DC Judgment when he applied ex parte, as she and
M M
her advisers did not have access to the files in this action. However, as
N I stated above, Tsui did so disclose. N
O 44. Mr Ko now relies on three matters which he said should O
have been disclosed by Tsui in the discharge of his duty of full and frank
P P
disclosure but which he did not:
Q Q
(1) The “apparent insolvency” of Law;
R (2) The “previous attempt by [Tsui] and [Law] to defraud [ES] R
as found in the [HC Judgment]”; and
S S
(3) Law had obtained a bank loan of HK$3,000,000 from a money
T lender called GS Credit in March 2018, after the Charging T
Order Nisi had been made but before it was made absolute.
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A A
45. The law on the duty to make full and frank disclosure in an
B B
ex parte application is well established. 23 The following principles are
C relevant: C
(1) Material facts are those which are material for the Court, when
D D
determining the ex parte application, to know and which are
E necessary to enable the Court to exercise its discretion properly. E
Those are facts which should have been put in the scales by
F the ex parte Court, and not only facts which are determinative F
one way or another.
G G
(2) Materiality is to be decided by the Court and not by the
H applicant or his legal advisers. H
(3) The applicant has a duty to make proper enquiries before
I I
making the application and the duty of disclosure covers not
J only facts known to the applicant but facts which he would J
have known had he made such proper inquiries.
K K
(4) The matter to be disclosed should normally not be made only
in exhibits but must be referred to in the affidavits.
L L
(5) The fact that the non-disclosure is not deliberate but is
M M
innocent does not excuse the non-disclosure, but is a factor
to take into account when the Court considers what order to
N N
be made as a result of the non-disclosure.
O O
46. In an application for a charging order, a matter which the
P P
Court is mandated to consider is whether other creditors will be unduly
Q
prejudiced if priority is accorded to the applicant by granting a charging Q
order in the property concerned: see section 20(3)(b) of the High Court
R R
Ordinance. Thus, as stated by Buckley LJ (with whom Ormrod LJ agreed)
S in Rainbow v Moorgate Properties Ltd 24: S
T 23
See generally Mak, Law of Injunctions in Hong Kong (2nd ed, 2018) at [2-142] – [2-152]. T
24
[1975] 1 WLR 788 at 793 – 794.
U U
V V
- 17 -
A A
“ … I think it is wrong, when the court is aware of the fact that
B the debtor is, or is likely to turn out to be, insolvent, that one B
creditor should be given an advantage over other creditors by
an exercise of the discretion of the court”.
C C
D 47. According to the HC Judgment, handed down on 28 December D
2017, Law was, and not just probably, insolvent (apart from her half-share
E E
of the Property), and that did not take into account the very substantial
F judgment debt owed to Tsui himself for more than HK$3,000,000. Tsui F
disclosed debts of Law totalling at least HK$4,290,000 as at 30 December
G G
2017. She thus remained insolvent as at 30 December 2017 unless her
H half-share, being her only asset, was at the time worth at least that amount. H
I accept that there is, as Mr Ching is at pains to repeat, no evidence on the
I I
value of the share, although it was likely to be more than HK$3,000,000 25.
J But that would only mean that it was not known to Tsui or anyone else for J
certain whether Law, having debts of at least HK$4,290,000 but with only
K K
one asset of unknown value, was or was not insolvent, but in the light of
L my finding in the HC Judgment, and the additional judgment debt owed L
to Tsui not taken into account in the HC Judgment, in my judgment that
M M
Law was in fact insolvent as at 30 December 2017 cannot be said to be
N other than at least probable (and not just a possibility). N
O O
48. In my judgment clearly this probable insolvency ought to
P have been disclosed, but it was not. As stated, the question of insolvency P
or probable insolvency of the judgment debtor is one of the most material
Q Q
factors in the Court’s consideration of the application for a charging order.
R A judgment handed down two days earlier had raised a clear doubt on Law’s R
solvency. It is not for Tsui to say that as there was no evidence of the
S S
value of the half-share added back he did not know whether the half-share
T T
25
Because GS Credit was willing to lend her that sum against a charge on her share in March 2018.
U U
V V
- 18 -
A A
could cover Law’s debts. If he really did not know the true position, but
B B
having regard to my finding in the HC Judgment and the total amount of
C debts owed by Law which he knew, he ought to have made proper enquiries C
of the value of the Property. At the very least, he ought to have informed
D D
the Court in his affirmation that there was this question over the solvency
E of Law notwithstanding the reversion of the half-share to her by the HC E
Judgment. In such a case the Court was likely to direct him to file more
F F
evidence on the value of the Property.
G G
49. It is true that a copy of the reasoned HC Judgment was
H exhibited to a subsequent affirmation of Tsui before the Charging Order H
Nisi was made but mere disclosure by exhibit is not sufficient.
I I
J 50. As I said, Mr Ching points to the lack of evidence on the J
value of the Property and argues that there is no basis to say that Law was
K K
probably insolvent. But that is to address the argument that the burden of
L proving probable insolvency is on ES when she is seeking to discharge the L
Charging Order Absolute. However, the issue I am now considering is
M M
different, namely whether, in the light of the HC Judgment which held that
N Law was insolvent (without the half-share), with no evidence on the value N
of the half-share added back, and with the total amount of known debts
O O
owed by Law, Tsui ought to alert the Court to Law’s probable insolvency.
P If he did not know the true position, as I said above he should then made P
proper inquiries or to tell the Court the uncertainty.
Q Q
R
51. The above analysis is on the basis that the solvency or R
otherwise of Law in the period between 30 December 2017 and 1 February
S S
2018 was not certain but was clearly a probability. In fact, as I said above,
T
before me, Tsui admits that Law was at the time unable to repay all her T
debts from her own resources including the half-share of the Property. That
U U
V V
- 19 -
A A
is, as far as he knew, she was actually insolvent, not probably so. This is
B B
certainly not disclosed by Tsui when he definitely ought to have.
C C
52. Mr Ching urges me not to rely on Tsui’s “admission” on Law’s
D D
insolvency as he may be confused. I do not think that he is but even if
E he is, so that I discount the admission, as I discussed above, there is still E
material non-disclosure. I need not deal with the other two alleged non-
F F
disclosures relied on by Mr Ko, in particular the third one where the matter
G
occurred after the grant of the Charging Order Nisi, ie post–ex parte. G
H 53. Tsui says that the non-disclosure was not deliberate as he was H
not legally represented at the time, but innocent non-disclosure is still non-
I I
disclosure and as the question of the solvency of the judgment debtor is one
J of the most fundamental consideration as to whether the charging order J
ought to be granted, the non-disclosure is serious which, in my judgment,
K K
on this ground alone, the Charging Order Nisi ought to be discharged in
L the normal course 26. With the Charging Order Nisi discharged, so must L
the Charging Order Absolute.
M M
54. With material non-disclosure shown which supports a case for
N N
discharging the Charging Order Nisi, and as a result the Charging Order
O Absolute as well, while I have a discretion not to discharge (or to re-grant) O
notwithstanding the material non-disclosure, such discretion should be
P P
27
sparingly exercised , and the burden must be on Tsui now to satisfy me
Q that I should so exercise my discretion in his favour in all the Q
circumstances. What Tsui must persuade me in the first place is that the
R R
making of a charging order nisi is justified in all the circumstances, and
S S
26
Excel Courage Holdings Ltd v Wong Sin Lai [2014] 3 HKLRD 642 at §56 per Kwan JA (as
she then was), speaking in the context of a Mareva injunction but which in my respectful view
T is equally applicable to any order made ex parte. T
27
Ibid.
U U
V V
- 20 -
A A
not whether a charging order nisi ought to be made absolute.28 In the
B B
light of section 20(3)(b) of the High Court Ordinance, the burden is on
C Tsui to show that ES will not be unduly prejudiced by the making of a C
charging order, and that in all the circumstances of the case it is
D D
appropriate to maintain or re-grant a charging order over Law’s share of
E the Property in favour of Tsui thus giving him a priority over other E
unsecured creditors of Law, including ES.
F F
55. Apart from the debts of at least HK$4,290,000 disclosed by
G G
Law, the evidence now adduced before me shows that Law is also indebted
H to the Director of Legal Aid for the costs of a failed application for leave H
to apply for judicial review29, and she had also borrowed HK$3,000,000
I I
from GS Credit, both of which remain outstanding. The loan from GS
J Credit is secured by a charge on Law’s share of the Property and there is J
also a charging order in favour of the Director of Legal Aid for the unpaid
K K
costs. In terms of priority, the charge in favour of the money lender has
L priority over the Charging Order Absolute which in turn has priority over L
the charging order in favour of the Director of Legal Aid, by reason of their
M M
respective registrations at the Land Registry.
N N
56. As stated, there is no evidence of the value of Law’s share of
O the Property and what other assets she has, ie whether she is insolvent in O
the light of all the debts I refer to above (and of course she may have other
P P
debts). There is no evidence of the exact amounts she owes to GS Credit
Q (now) and the Director of Legal Aid. The making of a charging order Q
in favour of one of the few or many unsecured creditors of a debtor if the
R R
debtor is insolvent would certainly unduly prejudice all the other unsecured
S S
28
Thus, cases holding that the burden is on a creditor to show why a charging order nisi ought
not to be made absolute, such as Rosseel NV v Oriental Commercial and Shipping Co (UK)
T Ltd [1991] TLR 446, Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 and First T
National Securities Ltd v Hegerty [1985] QB 850, cited on behalf of Law, is inapplicable.
29
HCAL 122/2015.
U U
V V
- 21 -
A A
creditors. As Lord Brandon of Oakbrook 30 said in Roberts Petroleum Ltd
B B
v Bernard Kenny Ltd 31:
C C
“ when a judgment debtor, whether he be a natural person or a
corporate body, has become insolvent, all the unsecured creditors
D should be treated equally, each receiving the same proportionate D
share of the inadequate fund available as all the others.”
E E
57. Thus, if Law’s share in the Property is sold, it is unclear
F F
whether, after paying off GS Credit and the Director of Legal Aid, there is
G
any money left for ES and Tsui (and other unsecured creditors). If there is, G
then the continuation or re-grant of a charging order in favour of Tsui will
H H
clearly unduly prejudice ES (and possibly the Director of Legal Aid if I do
I not discharge the Charging Order Absolute thereby maintaining its priority) I
by giving Tsui priority. If there is no money left, then the question is
J J
whether paying off GS Credit would already exhaust the proceeds and if so
K the continuation or re-grant of a charging order serves no useful purpose K
for Tsui.
L L
M
58. Because of lack of evidence as discussed above, Tsui has not M
shown to me that ES will not be unduly prejudiced by the maintenance or
N N
re-grant of a charging order, or that in all the circumstances of the case it
O
is appropriate to make a charging order over Law’s share of the Property O
in favour of Tsui.
P P
59. For Law, it is also argued that ES has taken no step to enforce
Q Q
the DC Judgment herself since December 2017. But as Law does not
R R
appear to have any substantial assets apart from her share of the Property32
S 30 S
Sitting in the Court of Appeal with Cumming-Bruce LJ and Dame Elizabeth Lane, both of whom
agreed with Lord Brandon. This was cited with approval by Lord Brightman in the House of
Lords on appeal: Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 at 207F.
T 31
[1982] 1 WLR 301 at 307. T
32
See §48 of the HC Judgment.
U U
V V
- 22 -
A A
and it is understandable that no steps are taken to enforce once it was found
B B
out in May 2018 that the Charging Order Absolute existed, before the same
C is discharged. There is no basis to say that she has abandoned any right to C
recover sums she is entitled to under the DC Judgment. As Mr Ko submits,
D D
ES cannot be blamed for not taking active steps to enforce the DC Judgment
E at any time before May 2018 because Law was applying for leave to appeal E
the DC Judgment and had in fact filed a notice of appeal against the HC
F F
Judgment, and it would not be prudent to seek to enforce the DC Judgment
G against the only known asset of Law in the meantime. G
H H
60. As stated above when I deal with the recusal application, those
I acting for ES question whether the debt alleged by Tsui to be owed by Law I
is genuine, and the motive of Tsui in commencing this action. These are
J J
serious allegations of dishonesty which I cannot resolve on affirmations,
K nor do I need to in the light of my decision. K
L L
D. DISPOSITION
M M
61. The appeal is allowed. I set aside the order of the Master
N
below. I make no order on paragraph 1 of the Amended Summons N
(regarding joinder) and make an order in terms of paragraph 2 thereof,
O O
discharging the Charging Order Absolute and vacating the registration of the
P
Charging Order Nisi and the Charging Order Absolute at the Land Registry. P
Q Q
62. As to costs, since I allow the appeal and since both Tsui and
Law have actively opposed the Amended Summons and this appeal, I make
R R
an order nisi that Tsui and Law are to be jointly and severally liable for the
S S
costs of the appeal of ES before me, and of the Amended Summons before
T
the Master. For the avoidance of doubt, I grant certificate for counsel T
below and before me. ES’s own costs are to be taxed in accordance with
U U
V V
- 23 -
A A
the Legal Aid Regulations. If Tsui or Law wish to apply to vary the costs
B B
order, he or she or they ought to do so within 14 days of the date of this
C Decision by way of a summons. C
D D
63. If any application to vary is made, I shall give further directions
E on how to dispose of the application. If no application to vary is made, E
I direct summary assessment of the costs by me. Those acting for ES are
F F
to file and serve a bill of costs within 7 days of the expiry of the 14-day
G period for the application to vary to be made. Tsui and Law are to file G
and serve their responses (if they so wish) within 7 days of the service, and
H H
those acting for ES are to reply (if she so wishes) within 7 days thereafter.
I I shall then make a summary assessment in writing. I
J J
K K
L L
(Stewart Wong SC)
M Recorder of the High Court M
N N
The plaintiff appeared in person
O Mr Ching Ming Yu, of Ching & Co, for the defendant O
P Mr Tony Ko, instructed by Boase Cohen & Collins, assigned by P
Director of Legal Aid, for the intended intervener
Q Q
R R
S S
T T
U U
V V
TSUI YUN BUN BARRY v. LAW WAN TUNG (formerly known as LAW SIU YI BIBY)
A
HCA 2596/2017 A
[2019] HKCFI 2955
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
D ACTION NO 2596 OF 2017 D
______________
E BETWEEN E
TSUI YUN BUN BARRY Plaintiff
F F
and
G G
LAW WAN TUNG (formerly Defendant
H known as LAW SIU YI BIBY) H
and
I I
Intended
ERWIANA SULISTYANINGSIH Intervener
J J
______________
K K
Before: Mr Recorder Stewart Wong SC in Chambers
L Date of Hearing: 28 November 2019 L
Date of Decision: 5 December 2019
M M
_____________
N N
DECISION
O
_____________ O
P A. INTRODUCTION P
Q 1. By an Amended Summons filed on 27 March 2019 (“the Q
Amended Summons”), Ms Erwiana Sulistyaningsih (“ES”) applied to be
R R
added as a party to this action for the purpose of declaring her interest in
S relation to the charging order absolute dated 4 April 2018 (“the Charging S
Order Absolute”) granted in relation to a property being Flat J, 38/F, Block 5,
T T
Beverly Garden, 1 Tong Ming Street, Tseung Kwan O (“the Property”),
U U
V V
- 2 -
A A
and to set aside or to discharge the Charging Order Absolute, and to vacate
B B
the registration thereof as well as the charging order nisi dated 1 February
C 2018 (“the Charging Order Nisi”) at the Land Registry, on the basis that C
the creditor of the defendant (“Law”) would likely to be unduly prejudiced
D D
by the making of those Orders.
E E
2. On 30 July 2019, ES’s application for joinder was dismissed
F F
by a Master with costs to Law. The application to set aside therefore, by
G implication at least, also failed. This is the appeal from the Master’s order. G
H H
3. The relevant facts, not in dispute, are as follows.
I I
4. ES, an Indonesian national, was employed by Law as a
J domestic helper from 30 May 2013 to 9 January 2014. J
K K
5. On 16 March 2015, ES issued a writ in the District Court 1,
L together with a statement of claim and a statement of damages, against Law, L
claiming damages for assault and battery, false imprisonment, negligence,
M M
breach of duty of care, breach of contract and breach of the Employment
N Ordinance 2. N
O O
6. On 28 April 2015, an interlocutory judgment, with damages to
P
be assessed, was entered in favour of ES against Law as the latter did not file P
an acknowledgment of service. The assessment of damages took place on
Q Q
4 December 2017 before H H Judge Winnie Tsui. Judgment was handed
R down on 21 December 2017 with damages assessed at HK$809,430.03 plus R
interest and costs (“DC Judgment”). The judgment debt remains outstanding.
S S
T 1
DCPI 569/2015. T
2
Cap 57.
U U
V V
- 3 -
A A
7. By an assignment dated 17 July 2015, Law purported to
B B
assign her half-share in the Property to the plaintiff (“Tsui”) (who was and
C is her husband and the owner of the other half-share) pursuant to a Deed of C
Separation dated 6 February 2015 (“the Transfer”). By an action in the
D D
Court of First Instance 3, ES as the plaintiff sought an order against Tsui
E as the 1st defendant and Law as the 2nd defendant setting aside the Transfer E
pursuant to section 60 of the Conveyancing and Property Ordinance 4. After
F F
a trial lasting two days 5, by a judgment handed down on 28 December 2017 6
G (“HC Judgment”), I found for ES and set aside the Transfer. I also made G
an order that Law was to pay the costs of the action to ES, which I, by a
H H
decision dated 2 March 2018 7 (“Decision on Costs”) varied to an order that
I Tsui and Law were liable jointly and severally for the costs of the action. I
J J
8. In the meantime, on 13 November 2017, Tsui commenced
K the present action in the Court of First Instance against Law, seeking the K
repayment of HK$3,055,712, plus interest and costs, allegedly to be monies
L L
owing by Law to him. The writ did not name the parties in full but used
M the abbreviated names of “Y B Tsui” and “W T Law” respectively, and was M
later amended to name them in full. Law filed an acknowledgement of
N N
service dated 14 November 2017 indicating that she did not intend to defend.
O On 20 December 2017, Tsui obtained a default judgment against Law. On O
30 December 2017, Tsui applied ex parte for a charging order against Law’s
P P
share of the Property.
Q Q
R R
3
S HCA 2256/2015. S
4
Cap 219.
5
15 and 23 November 2017.
T 6
[2018] 1 HKLRD 487 (English); [2018] 1 HKLRD 505 (Chinese). T
7
[2018] HKCFI 463.
U U
V V
- 4 -
A A
9. In his affirmation in support of the application for the
B B
charging order, Tsui disclosed the debts owed by Law that he knew of.
C Those include the DC Judgment with costs (said to be about “HK$810,000”), C
untaxed legal costs in the action before me, unpaid credit card bills totalling
D D
not less than HK$400,000, a claim by another person in a pending District
E Court trial which would take place in February 2018 where the claim was E
less than HK$200,000, various utility bills of about HK$25,000, and unpaid
F F
fees to a senior counsel in the sum of HK$130,000 “which was protested by”
G Law. Leaving aside the pending District Court case, the untaxed legal costs, G
and the unpaid fees to the senior counsel in dispute, the total indebtedness
H H
of Law as at 30 December 2017 was about HK$4,290,000 (including the
I judgment debt owed to Tsui). I
J J
10. I found at §48 of the HC Judgment about Law:
K “ On her own evidence, she had and has no other assets and owed K
(and still owe) a lot of money on credit card spending which she
was and is unable to repay, and was and is clearly insolvent but
L L
for her interest in the Property, and I so find.”
M M
This is of course a finding binding on Tsui, Law and ES, as they were all
N
parties before me. The default judgment had not been entered by the end N
of the trial and so what I said did not take into account that judgment debt,
O O
or the underlying debt said to be owed by Law to Tsui.
P P
11. It is therefore clear that as at 30 December 2017, two days after
Q I handed down the HC Judgment which in effect “reverted” the ownership Q
of a half-share of the Property to Law, her only asset was that half-share, but
R R
with a liability of at least about HK$4,290,000. Mr Ching, appearing for
S Law, accepts before me that that is the case, while Tsui, appearing in person, S
agrees that as at the time of his application for a charging order Law did
T T
not have sufficient means of her own to pay all her debts.
U U
V V
- 5 -
A A
12. On 1 February 2018, the Charging Order Nisi was made. The
B B
Master did not direct Tsui to serve any papers on ES or any other persons.
C On 4 April 2018, the Charging Order Absolute was made. C
D D
13. Solicitors for ES only discovered the Charging Order Nisi
E and the Charging Order Absolute when they did an updated land search E
on the Property in May 2018.
F F
G
B. RECUSAL APPLICATION G
14. Just before the hearing of the appeal on 28 November 2019,
H H
Law makes an application that I should recuse myself from hearing this
I I
matter on the ground of apparent bias, on the sole basis that I, at about noon
J
on 26 November 2019, after I had received the skeleton submissions J
of Mr Ko for ES, but before I received Mr Ching’s on behalf of Law,
K K
I directed that a copy of each of the HC Judgment and the Decision on
L
Costs be included in the hearing bundles. I heard the recusal application L
on 28 November 2019 and dismissed it and said that I would hand down
M M
my reasons together with my decision on the appeal by ES. These are
N
my reasons for dismissing the recusal application. N
O 15. ES is relying on the HC Judgment, in particular my finding of O
fraudulent conveyance against Tsui and Law, to question whether the debt
P P
on which Tsui was suing Law was a genuine debt. As far as I understand
Q Mr Ching’s submissions, since I directed the inclusion of the HC Judgment Q
and the Decision on Costs in the hearing bundles, before I saw Law’s
R R
skeleton, he argues that the fair-minded observer would reasonably
S
apprehend that I might already have accepted (or “sided with”, as S
T
Mr Ching puts it) ES’s case and would not deal with the matter T
impartially. Mr Ching says it is all a matter of timing: if I had directed
U U
V V
- 6 -
A A
the inclusion of those documents after he had filed his skeleton, he would
B B
have no complaint. He does not allege actual bias.
C C
16. The law regarding apparent bias is not in dispute. Mr Ching
D D
refers to Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd 8
E where Ribeiro PJ, giving the determination of the Appeal Committee of E
the Court of Final Appeal, said:
F F
“ Kwan JA, with whom the other members of the Court agreed,
G noted that this was an apparent bias case with no one suggesting G
actual bias. Her Ladyship referred to the test mentioned above
and found the judgment of Doyle CJ in the Supreme Court of
H South Australia in IOOF Australia Trustees Ltd v SEAS Sapfor H
Forests Pty Ltd, especially helpful in a case involving friction
between Bench and Bar:
I I
… disqualifying bias is not established merely by pointing
to circumstances indicating tension, or even some hostility,
J J
between the judge and counsel. The relevant principles are
directed towards ensuring the appearance and the reality of
K a fair hearing. That is, one in which the case on each side is K
fairly considered. Just as that does not require that a judge
approach the merits of the case with no preconceived views
L about issues that might arise in the case, so long as the judge L
is willing to listen fairly to argument on either side, so the
principle does not require that the judge not have, or at least
M M
not disclose, any adverse views about a particular counsel
appearing in the case. What is important is that the judge
N be willing to consider the case presented by that counsel N
fairly. It is when the hostility between the judge and
the counsel is such that the fair-minded observer might
O reasonably apprehend that the judge will not fairly consider O
the case being presented for the client that disqualifying bias
P is present.” P
Q 17. Even though that case concerned friction between judge and Q
counsel, the general principle is the same for other cases of alleged apparent
R R
bias. The question is whether the fair-minded observer might reasonably
S apprehend that the judge will not fairly consider the case before him. In S
T T
8
(2014) 17 HKCFAR 281 at §21 (footnotes omitted).
U U
V V
- 7 -
A A
Falcon 9, Ribeiro PJ referred to his own judgment in Deacons v White
B B
& Case Ltd Liability Partnership 10, another determination of the Appeal
C Committee that: C
D “ The court must first ascertain all the circumstances which have D
a bearing on the suggestion that the judge was biased. It must
then ask whether those circumstances would lead a fair-minded
E and informed observer to conclude that there was a real possibility, E
or a real danger, the two being the same, that the tribunal was
biased.” 11
F F
G 18. The circumstances must be such that it: G
H “ would inevitably lead a fair-minded and informed observer to H
conclude that there was a real possibility that the tribunal had
lost its detachment and would approach the case with its mind
I closed to persuasion”.12 I
J J
19. It is therefore necessary to set out the relevant facts leading to
K my direction that the HC Judgment and the Decision on Costs should be K
included in the hearing bundles, at a time when I had the hearing bundles
L L
and ES’s skeleton but not Law’s. The fair-minded observer is taken to
M be informed of the correct facts.13 M
N N
20. In the affirmation of Mr Siu Kit Chung14 dated 31 January 2019
O made in support of ES’s application, under the heading of “Background”, he O
refers to the HC Judgment, in particular my finding at §60 that the Transfer
P P
was a fraudulent conveyance, and uses that in support of ES’s case that
Q Q
9
At §11.
10
(2003) 6 HKCFAR 322 at §20, in turn quoting from the judgment of Lord Phillips of Worth
R Matravers MR (as he then was) in In re Medicaments and Related Classes of Goods (No 2) R
[2001] 1 WLR 700 at §85.
11
The words “or a real danger, the two being the same”, after “real possibility”, are in words of
S Lord Phillips and as quoted in Deacons, but somehow was omitted in the quote in Falcon. S
12
Falcon at §24.
13
Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375 at §51
T per Kwan JA (as she then was). T
14
An assistant solicitor with the firm of solicitors acting for ES.
U U
V V
- 8 -
A A
the present proceedings and the charging order are used to again defraud
B B
and to obstruct her from enforcing the DC Judgment against the Property.
C Mr Siu (at §18) says that Tsui and Law had “acted dishonestly for a second C
time”, no doubt the first time being, according to him, the fraudulent
D D
conveyance. Mr Siu produces a copy of the sealed judgment of mine,
E but not the reasoned judgment itself, and it is nowhere to be found in the E
hearing bundles.
F F
G 21. In his affirmation dated 3 June 2019 in answer, Tsui refers G
to the HC Judgment and says that as far as he is concerned, that case has
H H
finished and should not be mentioned again.
I I
22. In his affirmation dated 5 June 2019 filed on behalf of Law,
J J
Mr Ching refers to the allegation of dishonesty made by Mr Siu at §18 of
K his affirmation and denies it on behalf of Law. K
L L
23. In the skeleton submissions of Mr Ko filed on behalf of ES on
M
25 November 2019, he refers to the HC Judgment as part of the background. M
He then, in support of ES’s application to add as a party, submits that this
N N
is not the first time that Law tried to avoid payment of the DC Judgment,
O
referring to the earlier occasion where she assigned her half-share to Tsui O
which was then set aside by me under the HC Judgment. He also submits,
P P
by reference to various findings in the HC Judgment, that Law was probably
Q insolvent, that Tsui and Law had “once concerted to defraud [ES]” and Q
the charging order was a second attempt to achieve the same purpose.
R R
S
24. It is therefore clear from the above that ES is relying quite S
heavily on the HC Judgment in support of her case that Law was probably
T T
insolvent, as well as her case that the debt allegedly owed by Law to Tsui,
U U
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A A
the institution of the present action by Tsui to recover the debt, the entry of
B B
the default of judgment upon the lack of any intention to defend by Law,
C and the application for a charging order, are all part of a dishonest scheme C
by Tsui and Law to keep the latter’s share of the Property from the hands
D D
of ES in satisfaction of the DC Judgment, they having a previous similar
E attempt by way of the Transfer which I found in the HC Judgment to be E
a fraudulent conveyance. Of course Tsui and Law deny that there was
F F
any dishonest scheme. Whether the aforesaid arguments of ES are good
G or bad, I have to consider them carefully and impartially upon hearing the G
submissions of all parties, including any submissions any of them may
H H
wish to make by reference to the HC Judgment, including its relevance and
I probative value to the issues before me. Whether such arguments have I
any merits at all, and no matter what submissions are to be made by or on
J J
behalf of Tsui and Law, there can be no doubt that the fair-minded observer,
K knowing the contents of the affirmations and Mr Ko’s submissions and K
thus the reliance placed on the HC Judgment, would inevitably consider
L L
the HC Judgment to be a document which may have to be referred to at
M the hearing, no matter what Law is going to say in her skeleton. Even if M
the HC Judgment is in fact irrelevant to anything, I have to consider it at
N N
the hearing so as to rule that it is so, and to dismiss ES’s reliance thereon.
O I simply have to deal with whatever arguments all parties are going to make O
on the HC Judgment, and the direction by me on 26 November 2019 is
P P
simply to ensure that there will be ready access to such a document at the
Q hearing should there be a necessity to refer to it. Q
R R
25. In his reply submissions, Mr Ching suggests that Mr Ko does
S not seem to need or want the HC Judgment to be included as he has not S
done so. But it is in my judgment a question of having it readily accessible
T T
at the hearing to assist me in case reference, or further reference, is needed
U U
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A A
to make to it in the light of the heavy reliance on it by ES, which is in my
B B
judgment the fairest way to all parties.
C C
26. I fail to see how the direction that a document relied on by
D D
one party, which is not in the hearing bundles, is to be included, even before
E seeing the submissions of other parties, will suggest to the fair-minded E
observer that there is a real possibility or real danger that I am or may be
F F
biased in favour of the party relying on it. Even if I were to reject that
G party’s argument I still need to consider the document first. G
H H
27. The Decision on Costs is nothing but an amendment to
I the costs order I make in the HC Judgment, and is directed to be included I
for the sake of completeness. It is difficult to see how the fair-minded
J J
observer will discern any apparent bias from its inclusion in addition to
K the HC Judgment. K
L L
28. The application for recusal is dismissed for these reasons.
M M
C. THE APPEAL BY ES
N N
C1. ES’s standing
O O
29. The power of the Court to make a charging order is provided for,
P and regulated, by sections 20, 20A and 20B of the High Court Ordinance15, P
and Order 50 of the Rules of the High Court. 16
Q Q
R 30. Section 20B(4) of the High Court Ordinance provides: R
S S
T 15
Cap 4. T
16
Cap 4A.
U U
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A A
“ The Court of First Instance may at any time, on the application
B of the debtor or of any person interested in any property to B
which the order relates, make an order discharging or varying
the charging order.”
C C
D 31. Order 50, rule 7(1), provides: D
“ Subject to paragraph (2) on the application of the judgment
E E
debtor or any other person interested in the subject-matter of
the charge, the Court may, at any time, whether before or after
F the order is made absolute, discharge or vary the order on such F
terms (if any) as to costs or otherwise as it thinks just.”
G G
32. The first issue is whether ES has the standing to apply for
H H
a discharge of the Charging Order Absolute, ie whether she is “interested”
I
in Law’s share of the Property. ES of course has no legal, beneficial I
or security interests in the Property or Law’s share as such. She is only
J J
an unsecured judgment creditor of Law, the half-owner of the Property.
K However, the requirement is being “interested” in the property concerned, K
not having an “interest” in the property. As pointed out by Fox LJ (with
L L
whom Mustill LJ (as he then was) agreed) in Harman v Glencross 17:
M M
“ … the issue in the present case is whether the wife is ‘interested’
in property without having a proprietary interest in it in the strict
N sense. ‘Interested’ is not a technical term of property law and N
is wider in ambit than an ‘interest’ which is.”
O O
33. In my judgment, a creditor, for the purposes of the making
P and discharging of a charging order in favour of a, or another, judgment P
creditor against the property of a judgment debtor which may otherwise be
Q Q
available for the satisfaction of the debt owed, is sufficiently “interested”
R R
in the property.
S S
34. I note the following provisions:
T T
17
[1986] Fam 81 at 101A.
U U
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A A
(1) Section 20(3) of the High Court Ordinance provides:
B B
“ In deciding whether to make a charging order the Court of First
C Instance shall consider all the circumstances of the case and, C
in particular, any evidence before it as to—
(a) the personal circumstances of the debtor; and
D D
(b) whether any other creditor of the debtor would be likely
to be unduly prejudiced by the making of the order.”
E E
(2) Order 50, rule 1(3), provides:
F F
“ The application [for a charging order] shall be supported by
an affidavit—
G … G
(b) stating the name of the judgment debtor and of any creditor
H of his whom the applicant can identify”. 18 H
(3) Order 50, rule 2(2), provides:
I I
“ Without prejudice to the provisions of paragraph (1) the Court
J may, on making the order to show cause, direct the service of J
copies of the order, and of the affidavit in support, on any other
creditor of the judgment debtor or on any other interested person
K as may be appropriate in the circumstances.” K
L L
35. It is therefore clear to me that the intention of the charging order
M regime under the High Court Ordinance and Order 50 is that the interests M
of all creditors of the judgment debtor, including unsecured creditors, and
N N
not just those of the judgment creditor applying for a charging order, have
O to be taken into account, and Order 50, rule 2(2) expressly states that the O
Court may direct any creditor of the judgment debtor be served and thus
P P
given an opportunity to seek to argue why a charging order nisi, usually
Q made ex parte 19, should be made absolute.20 It cannot have been the Q
intention that the class of persons who are allowed to apply to discharge a
R R
charging order absolute after it has been made is to be restrictively construed
S so as to exclude a creditor whose position clearly has to be taken into account S
18
As stated at §50/9A/34 of Hong Kong Civil Procedure 2020, this is “important”.
T 19
Order 50, rule 1 (2). T
20
See also Hong Kong Civil Procedure 2020, Vol 1, §50/9A/23.
U U
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A A
by the Court when considering whether to make a charging order, or before
B B
the charging order is made absolute, especially when that creditor is not
C served with the charging order nisi and thus made aware thereof. Of C
course, in a case where the creditor knows of the charging order nisi but
D D
does not object to it being made absolute or if his objection is dismissed,
E it is difficult to see how he can then apply to discharge the charging order E
absolute after it is made (unless there is a material change of circumstances).
F F
G 36. My view is supported by the judgment of Fox LJ (Mustill LJ G
agreeing) in Harman v Glencross. In that case, the property in issue was
H H
jointly owned by the husband and the wife who were in the process of
I divorcing and the wife had made an application for ancillary relief asking I
for the husband’s share in the property to be transferred to her. She was
J J
held to have the standing to apply to discharge the charging order granted
K against the husband’s share as being interested in the property. Apart from K
the fact that she was a co-owner with a right to occupation which would be
L L
affected by the enforcement of the charging order, it was held by Fox LJ
M that she had the standing on the additional ground that she had made the M
application for ancillary relief claiming a transfer of the husband’s share
N N
in the property. In such circumstances she was a person interested in the
O husband’s share. Fox LJ did not question the proposition that unless and O
until such an order for transfer was made in her favour, the wife had no
P P
interest in or a proprietary right to the husband’s share. This shows that, as
Q the quote from that judgment I set out at §32 above makes clear, and which Q
I respectfully agree, it is not necessary for the applicant for discharge to
R R
have an interest in the property in the strict property law sense.
S S
T T
U U
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A A
37. In Banque Nationale de Paris plc v Montman Ltd 21, Hazel
B B
Williamson QC (sitting then as a Deputy High Court Judge in the Chancery
C Division), after considering Harman v Glencross, said 22 what the statute C
is looking for in terms of standing is:
D D
“ a person who can indeed be said to have some form of interest
E in the property which … is either a proprietary interest or an E
interest akin thereto, in the sense that they are a person who at
least has some interest such that their legal rights or liabilities
F are directly affected by the charging order.” F
G G
38. I agree with this proposition and ES is clearly in my judgment
H such a person as her legal right to have the DC Judgment satisfied from the H
assets of Law, including Law’s share in the Property, is directly affected by
I I
the Charging Order Absolute which confers a priority on Tsui.
J J
39. The situation in Montman was different because in that case
K K
the debtor was a company in liquidation and all the creditor had was a right
L to have the liquidation duly administered. If and in so far as Montman held L
that a mere unsecured creditor is necessarily not sufficiently interested in
M M
the property of a judgment debtor charged or to be charged under a charging
N order, for reasons above, I respectfully disagree. N
O O
40. Mr Ko also argues that the reference to a person “interested
P in the subject-matter of the charge” in Order 50, rule 7(1), is wider than P
section 20B(4) of the High Court Ordinance, which refers to a person
Q Q
“interested in any property to which the [charging] order relates”, and
R includes the underlying judgment debt. I disagree. Plainly, the subject- R
matter of the charge means whatever is being charged, and not the matter
S S
being secured by the charge. In any event, even if the subject-matter
T 21
[2000] 1 BCLC 576. T
22
At 581a –b.
U U
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A A
includes the relevant judgment debt secured by the charge, that means the
B B
judgment debt owed by Law to Tsui, and not the judgment debt owed by
C Law to ES under the DC Judgment. ES cannot be said to be “interested” C
in the judgment debt owed by Law to Tsui.
D D
41. Having decided that ES is interested in Law’s share of the
E E
Property, so that she has the standing to make an application to discharge the
F F
Charging Order Absolute under section 20B(4) of the High Court Ordinance
and Order 50, rule 7(1), as submitted on behalf of Law, it is not necessary
G G
in my judgment to add her as a party to these proceedings formally.
H H
C2. Merits
I I
42. Regarding the merits of the application to discharge, the first
J point taken by ES is that there had been material non-disclosure by Tsui J
when he applied for a charging order ex parte.
K K
L 43. There has been some speculation on behalf of ES whether L
Tsui disclosed the DC Judgment when he applied ex parte, as she and
M M
her advisers did not have access to the files in this action. However, as
N I stated above, Tsui did so disclose. N
O 44. Mr Ko now relies on three matters which he said should O
have been disclosed by Tsui in the discharge of his duty of full and frank
P P
disclosure but which he did not:
Q Q
(1) The “apparent insolvency” of Law;
R (2) The “previous attempt by [Tsui] and [Law] to defraud [ES] R
as found in the [HC Judgment]”; and
S S
(3) Law had obtained a bank loan of HK$3,000,000 from a money
T lender called GS Credit in March 2018, after the Charging T
Order Nisi had been made but before it was made absolute.
U U
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A A
45. The law on the duty to make full and frank disclosure in an
B B
ex parte application is well established. 23 The following principles are
C relevant: C
(1) Material facts are those which are material for the Court, when
D D
determining the ex parte application, to know and which are
E necessary to enable the Court to exercise its discretion properly. E
Those are facts which should have been put in the scales by
F the ex parte Court, and not only facts which are determinative F
one way or another.
G G
(2) Materiality is to be decided by the Court and not by the
H applicant or his legal advisers. H
(3) The applicant has a duty to make proper enquiries before
I I
making the application and the duty of disclosure covers not
J only facts known to the applicant but facts which he would J
have known had he made such proper inquiries.
K K
(4) The matter to be disclosed should normally not be made only
in exhibits but must be referred to in the affidavits.
L L
(5) The fact that the non-disclosure is not deliberate but is
M M
innocent does not excuse the non-disclosure, but is a factor
to take into account when the Court considers what order to
N N
be made as a result of the non-disclosure.
O O
46. In an application for a charging order, a matter which the
P P
Court is mandated to consider is whether other creditors will be unduly
Q
prejudiced if priority is accorded to the applicant by granting a charging Q
order in the property concerned: see section 20(3)(b) of the High Court
R R
Ordinance. Thus, as stated by Buckley LJ (with whom Ormrod LJ agreed)
S in Rainbow v Moorgate Properties Ltd 24: S
T 23
See generally Mak, Law of Injunctions in Hong Kong (2nd ed, 2018) at [2-142] – [2-152]. T
24
[1975] 1 WLR 788 at 793 – 794.
U U
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A A
“ … I think it is wrong, when the court is aware of the fact that
B the debtor is, or is likely to turn out to be, insolvent, that one B
creditor should be given an advantage over other creditors by
an exercise of the discretion of the court”.
C C
D 47. According to the HC Judgment, handed down on 28 December D
2017, Law was, and not just probably, insolvent (apart from her half-share
E E
of the Property), and that did not take into account the very substantial
F judgment debt owed to Tsui himself for more than HK$3,000,000. Tsui F
disclosed debts of Law totalling at least HK$4,290,000 as at 30 December
G G
2017. She thus remained insolvent as at 30 December 2017 unless her
H half-share, being her only asset, was at the time worth at least that amount. H
I accept that there is, as Mr Ching is at pains to repeat, no evidence on the
I I
value of the share, although it was likely to be more than HK$3,000,000 25.
J But that would only mean that it was not known to Tsui or anyone else for J
certain whether Law, having debts of at least HK$4,290,000 but with only
K K
one asset of unknown value, was or was not insolvent, but in the light of
L my finding in the HC Judgment, and the additional judgment debt owed L
to Tsui not taken into account in the HC Judgment, in my judgment that
M M
Law was in fact insolvent as at 30 December 2017 cannot be said to be
N other than at least probable (and not just a possibility). N
O O
48. In my judgment clearly this probable insolvency ought to
P have been disclosed, but it was not. As stated, the question of insolvency P
or probable insolvency of the judgment debtor is one of the most material
Q Q
factors in the Court’s consideration of the application for a charging order.
R A judgment handed down two days earlier had raised a clear doubt on Law’s R
solvency. It is not for Tsui to say that as there was no evidence of the
S S
value of the half-share added back he did not know whether the half-share
T T
25
Because GS Credit was willing to lend her that sum against a charge on her share in March 2018.
U U
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A A
could cover Law’s debts. If he really did not know the true position, but
B B
having regard to my finding in the HC Judgment and the total amount of
C debts owed by Law which he knew, he ought to have made proper enquiries C
of the value of the Property. At the very least, he ought to have informed
D D
the Court in his affirmation that there was this question over the solvency
E of Law notwithstanding the reversion of the half-share to her by the HC E
Judgment. In such a case the Court was likely to direct him to file more
F F
evidence on the value of the Property.
G G
49. It is true that a copy of the reasoned HC Judgment was
H exhibited to a subsequent affirmation of Tsui before the Charging Order H
Nisi was made but mere disclosure by exhibit is not sufficient.
I I
J 50. As I said, Mr Ching points to the lack of evidence on the J
value of the Property and argues that there is no basis to say that Law was
K K
probably insolvent. But that is to address the argument that the burden of
L proving probable insolvency is on ES when she is seeking to discharge the L
Charging Order Absolute. However, the issue I am now considering is
M M
different, namely whether, in the light of the HC Judgment which held that
N Law was insolvent (without the half-share), with no evidence on the value N
of the half-share added back, and with the total amount of known debts
O O
owed by Law, Tsui ought to alert the Court to Law’s probable insolvency.
P If he did not know the true position, as I said above he should then made P
proper inquiries or to tell the Court the uncertainty.
Q Q
R
51. The above analysis is on the basis that the solvency or R
otherwise of Law in the period between 30 December 2017 and 1 February
S S
2018 was not certain but was clearly a probability. In fact, as I said above,
T
before me, Tsui admits that Law was at the time unable to repay all her T
debts from her own resources including the half-share of the Property. That
U U
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A A
is, as far as he knew, she was actually insolvent, not probably so. This is
B B
certainly not disclosed by Tsui when he definitely ought to have.
C C
52. Mr Ching urges me not to rely on Tsui’s “admission” on Law’s
D D
insolvency as he may be confused. I do not think that he is but even if
E he is, so that I discount the admission, as I discussed above, there is still E
material non-disclosure. I need not deal with the other two alleged non-
F F
disclosures relied on by Mr Ko, in particular the third one where the matter
G
occurred after the grant of the Charging Order Nisi, ie post–ex parte. G
H 53. Tsui says that the non-disclosure was not deliberate as he was H
not legally represented at the time, but innocent non-disclosure is still non-
I I
disclosure and as the question of the solvency of the judgment debtor is one
J of the most fundamental consideration as to whether the charging order J
ought to be granted, the non-disclosure is serious which, in my judgment,
K K
on this ground alone, the Charging Order Nisi ought to be discharged in
L the normal course 26. With the Charging Order Nisi discharged, so must L
the Charging Order Absolute.
M M
54. With material non-disclosure shown which supports a case for
N N
discharging the Charging Order Nisi, and as a result the Charging Order
O Absolute as well, while I have a discretion not to discharge (or to re-grant) O
notwithstanding the material non-disclosure, such discretion should be
P P
27
sparingly exercised , and the burden must be on Tsui now to satisfy me
Q that I should so exercise my discretion in his favour in all the Q
circumstances. What Tsui must persuade me in the first place is that the
R R
making of a charging order nisi is justified in all the circumstances, and
S S
26
Excel Courage Holdings Ltd v Wong Sin Lai [2014] 3 HKLRD 642 at §56 per Kwan JA (as
she then was), speaking in the context of a Mareva injunction but which in my respectful view
T is equally applicable to any order made ex parte. T
27
Ibid.
U U
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A A
not whether a charging order nisi ought to be made absolute.28 In the
B B
light of section 20(3)(b) of the High Court Ordinance, the burden is on
C Tsui to show that ES will not be unduly prejudiced by the making of a C
charging order, and that in all the circumstances of the case it is
D D
appropriate to maintain or re-grant a charging order over Law’s share of
E the Property in favour of Tsui thus giving him a priority over other E
unsecured creditors of Law, including ES.
F F
55. Apart from the debts of at least HK$4,290,000 disclosed by
G G
Law, the evidence now adduced before me shows that Law is also indebted
H to the Director of Legal Aid for the costs of a failed application for leave H
to apply for judicial review29, and she had also borrowed HK$3,000,000
I I
from GS Credit, both of which remain outstanding. The loan from GS
J Credit is secured by a charge on Law’s share of the Property and there is J
also a charging order in favour of the Director of Legal Aid for the unpaid
K K
costs. In terms of priority, the charge in favour of the money lender has
L priority over the Charging Order Absolute which in turn has priority over L
the charging order in favour of the Director of Legal Aid, by reason of their
M M
respective registrations at the Land Registry.
N N
56. As stated, there is no evidence of the value of Law’s share of
O the Property and what other assets she has, ie whether she is insolvent in O
the light of all the debts I refer to above (and of course she may have other
P P
debts). There is no evidence of the exact amounts she owes to GS Credit
Q (now) and the Director of Legal Aid. The making of a charging order Q
in favour of one of the few or many unsecured creditors of a debtor if the
R R
debtor is insolvent would certainly unduly prejudice all the other unsecured
S S
28
Thus, cases holding that the burden is on a creditor to show why a charging order nisi ought
not to be made absolute, such as Rosseel NV v Oriental Commercial and Shipping Co (UK)
T Ltd [1991] TLR 446, Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 and First T
National Securities Ltd v Hegerty [1985] QB 850, cited on behalf of Law, is inapplicable.
29
HCAL 122/2015.
U U
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A A
creditors. As Lord Brandon of Oakbrook 30 said in Roberts Petroleum Ltd
B B
v Bernard Kenny Ltd 31:
C C
“ when a judgment debtor, whether he be a natural person or a
corporate body, has become insolvent, all the unsecured creditors
D should be treated equally, each receiving the same proportionate D
share of the inadequate fund available as all the others.”
E E
57. Thus, if Law’s share in the Property is sold, it is unclear
F F
whether, after paying off GS Credit and the Director of Legal Aid, there is
G
any money left for ES and Tsui (and other unsecured creditors). If there is, G
then the continuation or re-grant of a charging order in favour of Tsui will
H H
clearly unduly prejudice ES (and possibly the Director of Legal Aid if I do
I not discharge the Charging Order Absolute thereby maintaining its priority) I
by giving Tsui priority. If there is no money left, then the question is
J J
whether paying off GS Credit would already exhaust the proceeds and if so
K the continuation or re-grant of a charging order serves no useful purpose K
for Tsui.
L L
M
58. Because of lack of evidence as discussed above, Tsui has not M
shown to me that ES will not be unduly prejudiced by the maintenance or
N N
re-grant of a charging order, or that in all the circumstances of the case it
O
is appropriate to make a charging order over Law’s share of the Property O
in favour of Tsui.
P P
59. For Law, it is also argued that ES has taken no step to enforce
Q Q
the DC Judgment herself since December 2017. But as Law does not
R R
appear to have any substantial assets apart from her share of the Property32
S 30 S
Sitting in the Court of Appeal with Cumming-Bruce LJ and Dame Elizabeth Lane, both of whom
agreed with Lord Brandon. This was cited with approval by Lord Brightman in the House of
Lords on appeal: Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 at 207F.
T 31
[1982] 1 WLR 301 at 307. T
32
See §48 of the HC Judgment.
U U
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- 22 -
A A
and it is understandable that no steps are taken to enforce once it was found
B B
out in May 2018 that the Charging Order Absolute existed, before the same
C is discharged. There is no basis to say that she has abandoned any right to C
recover sums she is entitled to under the DC Judgment. As Mr Ko submits,
D D
ES cannot be blamed for not taking active steps to enforce the DC Judgment
E at any time before May 2018 because Law was applying for leave to appeal E
the DC Judgment and had in fact filed a notice of appeal against the HC
F F
Judgment, and it would not be prudent to seek to enforce the DC Judgment
G against the only known asset of Law in the meantime. G
H H
60. As stated above when I deal with the recusal application, those
I acting for ES question whether the debt alleged by Tsui to be owed by Law I
is genuine, and the motive of Tsui in commencing this action. These are
J J
serious allegations of dishonesty which I cannot resolve on affirmations,
K nor do I need to in the light of my decision. K
L L
D. DISPOSITION
M M
61. The appeal is allowed. I set aside the order of the Master
N
below. I make no order on paragraph 1 of the Amended Summons N
(regarding joinder) and make an order in terms of paragraph 2 thereof,
O O
discharging the Charging Order Absolute and vacating the registration of the
P
Charging Order Nisi and the Charging Order Absolute at the Land Registry. P
Q Q
62. As to costs, since I allow the appeal and since both Tsui and
Law have actively opposed the Amended Summons and this appeal, I make
R R
an order nisi that Tsui and Law are to be jointly and severally liable for the
S S
costs of the appeal of ES before me, and of the Amended Summons before
T
the Master. For the avoidance of doubt, I grant certificate for counsel T
below and before me. ES’s own costs are to be taxed in accordance with
U U
V V
- 23 -
A A
the Legal Aid Regulations. If Tsui or Law wish to apply to vary the costs
B B
order, he or she or they ought to do so within 14 days of the date of this
C Decision by way of a summons. C
D D
63. If any application to vary is made, I shall give further directions
E on how to dispose of the application. If no application to vary is made, E
I direct summary assessment of the costs by me. Those acting for ES are
F F
to file and serve a bill of costs within 7 days of the expiry of the 14-day
G period for the application to vary to be made. Tsui and Law are to file G
and serve their responses (if they so wish) within 7 days of the service, and
H H
those acting for ES are to reply (if she so wishes) within 7 days thereafter.
I I shall then make a summary assessment in writing. I
J J
K K
L L
(Stewart Wong SC)
M Recorder of the High Court M
N N
The plaintiff appeared in person
O Mr Ching Ming Yu, of Ching & Co, for the defendant O
P Mr Tony Ko, instructed by Boase Cohen & Collins, assigned by P
Director of Legal Aid, for the intended intervener
Q Q
R R
S S
T T
U U
V V
HCA2596/2017 TSUI YUN BUN BARRY v. LAW WAN TUNG (formerly known as LAW SIU YI BIBY) - LawHero