SUEN HUNG SHAN v. WONG & OUYANG (HK) LTD

CACV 427/2023, [2025] HKCA 90

On Appeal From [2023] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 427 OF 2023

(ON APPEAL FROM HCA NO 1796 OF 2020)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Plaintiff’s application for leave to appeal against the judgment of this Court dated 26 August 2024 (“the CA Judgment”), whereby the Court struck out the Plaintiff’s Notice of Appeal dated 20 December 2023 on the ground that it was frivolous, vexatious and/or an abuse of the court’s process.

2.  The basic facts of this case and the Court’s reasons for striking out the Plaintiff’s Notice of Appeal are fully set out in the CA Judgment and will not be repeated here.

3.  In the Plaintiff’s Notice of Motion dated 9 December 2024 seeking leave to appeal to the Court of Final Appeal, the Plaintiff raises 3 proposed question for determination by the Court of Final Appeal:

“Ground 1: To determine the exact expire date of 2^nd and GEG[1] employment contracts.

Ground 2: To determine relevant date of the 1^st employment whether sufficient lawful payment has been made.

Ground 3: If Ground 1 above is allowed, to determine whether the termination letter issued on 2 Jun 2020 contravene s72b of cap 57EO.” [sic]

4.  Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

5.  Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  Leaving aside the fact that the Notice of Motion was filed outside the 28-day period from the date of the CA Judgment for applying for leave to appeal, no question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. The 3 questions raised in the Notice of Motion are specific to the factual circumstances of the Plaintiff’s case. In the Notion of Motion and the Plaintiff’s Skeleton Argument dated 23 December 2024 and Reply to Opposition dated 14 January 2025, the Plaintiff effectively seeks to re-argue the merits of his intended appeal. An application for leave to appeal is not an avenue for an unsuccessful party to ventilate his/her arguments again on the merits of the case. In any event, we are satisfied that the intended appeal has no merits and no reasonable prospect of success.

7.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

8.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed with costs to the Defendant. We decline to order the Defendant’s costs to be assessed on an indemnity basis, and summarily assess the Defendant’s costs in the amount of HK$50,000.