CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS

CACV 161/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 161 OF 2006

(ON APPEAL FROM HIGH COURT ACTION NO. 4101 OF 2001)

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J U D G M E N T

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Hon. Yuen JA:

1.  This is an application by the Appellant for leave to appeal to the Court of Final Appeal from the orders made by this court on 12 June 2008.  The application was made on 20 August 2008 and was out of time.

2.  On 2 October 2008 the Appellant also filed a summons for leave to amend his Amended Notice of Motion.  Counsel for the Respondents did not object to the summons and submissions were made to the court on the basis of the re-amended version of the Notice of Motion. 

Orders of 12 June 2008

3.  On 12 June 2008 this court made an order in respect of the Appellant’s appeal from Saunders J’s order of 10 March 2006, that on the Appellant’s undertaking to lodge and serve a re-draft of the draft Re-Re-Amended Statement of Claim by 12 August 2008,

(1)     the appeal be further adjourned to a date to be fixed in consultation with counsel’s diary, not earlier than 31 August 2008;

(2)     in default of compliance with the said undertaking, the appeal shall stand dismissed with costs of the appeal without further order; and

(3)     the Respondents’ costs of and occasioned by the adjournment dated 14 September 2007 and 12 June 2008 assessed at a gross sum of $72,500 to be paid forthwith by the Appellant. 

4.  In the other order made on 12 June 2008 from which the Appellant is also seeking leave to appeal to the Court of Final Appeal out of time, this court dismissed his summons filed on 25 April 2007 for leave to adduce fresh evidence on appeal.

History of proceedings and reasons for orders of 12 June 2008

5.  The history of these proceedings and the reasons why we made the orders of 12 June 2008 have been set out in detail in our Reasons for Decision dated 11 September 2008 when we dismissed the Appellant’s summons for stay of execution of the order.  Paragraphs 4-24 of those Reasons for Decision should be taken as incorporated into this Judgment.

Non-compliance with conditions for leave to appeal to CFA

6.  Coming back to the present application, quite apart from the delay in bringing it, I take the view that it does not comply with the conditions for leave to appeal to the Court of Final Appeal.

7.  Section 22(1)(a) Hong Kong Court of Final Appeal Ordinance Cap. 484 does not apply as the two orders of 12 June 2008 were not final orders, pursuant to the test set out in B+B Construction Ltd v Sun Alliance and London Insurance PLC [2000] 3 HKCFAR 503.  The Appellant sought to argue that it was a final order because it related to a strike-out.  He sought to rely on para. 3 of the Appeal Committee’s Determination in Sam Woo Bore Pile Foundation Ltd v China Overseas Foundation Engineering Ltd FAMV21/2007 but he has misread the paragraph which is in fact directly against him.  In any event the claim is not a liquidated one.

8.  Nor does s.22(1)(b) HKCFAO apply.  I can see no question of great general or public importance involved in this case.  The “questions” the Appellant has suggested are without any merit.  Quite simply, on 12 June 2008 the draft pleading he advanced in an attempt to salvage the claim which the judge had struck out was itself deficient.  Not only did it fail to comply with the High Court Civil Procedure (Use of Language) Rules, in substance it was confusing and internally inconsistent.  Rule 4(1) of the High Court Civil Procedure (Use of Language) Rules is clear and does not permit the court to exercise any discretion to accept a pleading in mixed languages which the Appellant’s draft Re-Re-Amended statement of claim was intended to be.  And when examples of the deficiencies in the substance of the pleading were pointed out to the Appellant, at no stage did he seek to argue that his draft was nevertheless sustainable.

9.  Instead the Appellant sought the indulgence of yet another adjournment to provide a re-draft.  He gave an undertaking to the court to provide the re-draft by a date which he himself specified.  The indulgence of the further adjournment was granted to him on terms.  He was given as much time as he asked for to provide the re-draft, but it was clearly explained to him what the consequences were if he failed to comply with his undertaking.  He fully understood the terms of the order.  When he failed to comply with his own undertaking, the appeal stood dismissed in accordance with the terms of the order.  He is now seeking to turn the clock back and that simply cannot be done.

10.  Accordingly the application must be dismissed.  We have heard the parties on costs.  I see no reason why costs should not follow the event, and so I would order the Appellant to pay the Respondents’ costs.

Hon Lam J:

11.  I agree.