STANDARD CHARTERED BANK (HONG KONG) LTD v. LEWIS PETER JOHN

DCCJ 5479/2021

[2025] HKDC 728

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5479 OF 2021

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BETWEEN

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DECISION

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Introduction and Procedural Background

1.  I have before me an application by the Defendant (“D”) by Summons filed on 13 January 2025 (“D’s Summons”) seeking:

(1) Leave be granted to appeal to the Court of Appeal against my Decision dated 2 December 2024 (“the Decision”) (see [2024] HKDC 2030);

(2) To vary the costs order nisi made in the Decision (see at §48) so that the costs order nisi shall not be made absolute until after hearing of the application for leave to appeal and on the directions of the Court of Appeal; and

(3) Extension of time for filing the aforesaid applications.

2.  An Affirmation of D in support of D’s Summons was filed on 13 January 2025.

3.  For convenience and ease of reference, I shall continue herein to adopt the abbreviations and definitions in the Decision. By the Decision, I dismissed D’s appeal against the decision of the Master. By way of an actual rehearing, considering the matter afresh, I granted summary judgment in favour of P against D and struck out D’s counterclaim. I also made the costs order nisi that D should pay the costs of the appeal against the Master to be summarily assessed if not agreed. This decision should be read together with the Decision.

4.  On 23 January 2025, I directed that D’s Summons be disposed of on paper and for parties to lodge and file skeleton submissions and authorities.

5.  Upon D’s application by fax dated 8 February 2025, on 10 February 2025, I extended time for D to file submissions to 28 February 2025 from 14 February 2025. P was directed to file its submissions by 7 March 2025 and D was to file any reply submissions on or before 14 March 2025.

6.  D’s Submissions in Support of Leave to Appeal & Variation of Costs Order (“D’s Submissions”) was filed on 27 February 2025.

7.  In the Skeleton Submissions for P dated 7 March 2025 (“P’s Submissions”), it was noted that D had not provided any of the authorities stated in D’s List of Authorities. This was also the case for this court. It was further stated in P’s Submissions that despite P’s efforts only 3 (out of 26) authorities on D’s List of Authorities could be found.

8.  By letter dated 7 March 2025, P’s solicitors wrote to this court for directions that D do provide copies of the authorities cited and relied upon as well as further consequential directions for filing of supplemental submissions by P.

9.  On 11 March 2025, I directed inter alia that D do, within 7 days, lodge and serve all the authorities cited and relied upon in D’s Submissions failing which reference to those authorities not so provided shall be ignored. I granted leave to P to lodge and serve any supplemental submissions and list of authorities in reply to those authorities provided by D. As for the previous direction for D to lodge and serve any reply submissions together with authorities, this was extended to 7 April 2025 to after the filing of any supplemental submissions by P.

10.  By letter dated 19 March 2025, D submitted that he was unable to provide the authorities cited by him. He explained that: (1) he does not have access to the legal databases which would enable him to download and print out the authorities; and (2) he had obtained these authorities using Microsoft Co-Pilot, DeepSeek and Ask AI chatbot assistant, which are “opensource” models that P’s solicitors should be able to access themselves. He also submitted that it would be grossly unfair and unjust if his authorities were to be ignored because he had used modern technology and AI tools to prepare his case. In any event, he submitted that if I were to ignore the authorities, he still stands by his submissions even without the support of the relevant authorities.

11.  By letter from P’s solicitors dated 31 March 2025, it was confirmed that P had no supplemental submissions or list of authorities.

12.  On 6 April 2025, D’s Reply Submissions in Support of Leave to Appeal & Variation of Costs Order (“D’s Reply”) was filed.

13.  I have considered all the submissions filed by the parties and this is my decision.

Applicable Principles

14.  The test for granting leave to appeal to the Court of Appeal from a judgment, order or decision of a judge, as set out in s 63A(2) of the District Court Ordinance, Cap 336, is that: (a) the appeal has reasonable prospect of success; or (b) there is some other reason in the interest of justice why the appeal should be heard. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which does not need to be shown to be “probable”. See Hong Kong Civil Procedure 2025, Vol 1, §59/2A/4.

15.  Moreover, in秦錦釗 v 香港特別行政區 [2018] HKCA 167 at §8 Kwan JA (as she then was) held that, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning and pinpoint the error in respect thereof. See also李智慧 v 昆士蘭保險（香港）有限公司 [2021] HKCA 984 per Chow JA at §11.

16.  It is not disputed that D has failed to comply with O 58, r 2(4)(b) of the Rules of the District Court, Cap 336H (“RDC”) which provides an application for leave to appeal must be made within 28 days from the date of the judgment, order or decision of the judge which is appealed against.

17.  As to whether to exercise the court’s discretion to extend time to appeal, the court will normally take into account the following factors:

(1) The length of delay;

(2) The reasons for the delay;

(3) The chances of the appeal succeeding if an extension of time is granted; and

(4) The degree of prejudice to the other party if the application is granted.

The modern authorities disapprove of a rigid and mechanical approach which focuses on the reasons for and length of the delay. Instead, the court must consider all the circumstances and decide whether the overall justice of the case require the exercise of the discretion to extend time. See Hong Kong Civil Procedure 2025, Vol 1, §59/4/9.

Discussion

18.  In the present case, the application for leave to appeal should have been made by 30 December 2024. There was a delay of 14 days which I accept is not a long delay.

19.  D has given his explanations for the delay. Essentially, they are:

(1) At the time the Decision was handed down, D was not in Hong Kong and he did not receive service of the Decision. He was only made aware of the Decision on 18 December 2024, when P’s solicitors sent a copy of P’s Statement of Costs to him by email;

(2) The Registry refused the filing of D’s summons seeking leave to appeal and variation of the costs order nisi on 27 December 2024 on the grounds that the summons was not in the correct format and not accompanied by 4 sets of affirmation; and

(3) Since D was not in Hong Kong, time was required to arrange for his affirmation to be notarized and attached with apostille.

20.  Whilst it was submitted in P’s Submissions that the reasons for delay are inexcusable and of D’s own doing, in view of the short delay and no prejudice to P has been submitted if time was extended, I would be prepared to extend time so long as there are reasonable prospects of success to D’s intended appeal.

21.  In D’s Submissions at §5 and D’s Reply at §9, the following grounds for appealing against the Decision are given:

(1) That I erred in law and fact in dismissing his appeal and in granting summary judgment in favour of P;

(2) That I failed to properly consider the evidence and submissions put forth by D thereby resulting in miscarriage of justice;

(3) My decision to strike out D’s counterclaim was contrary to established legal principles and precedents;

(4) The Decision is unjust;

(5) The case involves a point of law that requires further consideration by a higher court; and

(6) There is a substantial question of law or fact, or both, that needs to be addressed.

22.  More specifically, it seems from D’s Submissions (§§6-18) and D’s Reply (§§10-30), the grounds for appealing against my Decision are based on D’s case on the “non-provision of crucial evidence by P that was believed to be in their possession and essential to fair adjudication of the case” which I had not dealt with in the Decision. This evidence is said to include credit card account opening documents and/or undertakings and/or guarantees provided at the time of the account opening. In particular, it is said that I failed to rule on this substantive part of D’s appeal and given the significance of this evidence, D seeks leave to appeal against the Decision so that this issue may be properly addressed by the Court of Appeal.

23.  In D’s submissions dated 5 November 2024 (“D’s Written Submissions”), in seeking to appeal against the Master, it was mentioned therein that after the filing of his D&CC, he learnt that his employer had provided a written guarantee to P with regards to his banking facilities, and that this would significantly impact on the determination of liability, yet P had failed to provide this document. However, this matter was raised under the headings “The Master should have allowed D to amend his pleading” and “The Master should have ordered full disclosure of all documents related to the case”.

24.  As I noted in the Decision at §31, although a number of grounds of appeal were raised by D as to why the Master was wrong in granting summary judgment and what the Master ought to have done (including to allow him to amend his D&CC and order discovery against P), as I proceeded on the basis that an appeal against the Master was an actual rehearing of the matter, I took the view that I did need not consider whether the Master had erred on those grounds.

25.  Furthermore, I held in the Decision at §31 that in any event, I did not consider those were matters which satisfy me that D has shown cause why judgment should not be entered against D.

26.  In so far there are allegedly crucial evidence which are believed to be in the possession of P which would have a material impact on D’s liability to P, there was never any application made for specific discovery against P whether before the Master or made to me. In D’s Submissions, §7 and D’s Reply, §13, he asserted that in 2023/2024 he had learnt the existence of those additional “account opening documentation and letters of undertakings” which are crucial to the case. He could therefore have made an application for specific discovery against P but did not.

27.  Besides, even if he was not able to obtain those documents from P, at the very least he ought to have deposed to the fact that he believed that there was a guarantee from his employer or some other document which could afford him an arguable defence or some other reason for trial. However, the fact that there was such a guarantee or other documentation, which he believed could afford him a defence, was never raised in the Affirmation filed on 27 February 2024 to oppose P’s application for summary judgment and strike out (“D’s Aff”).

28.  It is trite that D must show cause on the merits by filing a defence or affirmation, and that he should not be allowed to raise matters not deposed to: see Hong Kong Civil Procedure 2025, Vol.1, §§14/4/3 and 14/4/4. Moreover, it has been held that, “[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism”: per Megarry VC in Lady Anne Tennant v Associated Newspapers Group Ltd [1979] FSR 298 cited ibid at §14/4/3.

29.  In the absence of any evidence in support of what is alleged in D’s Written Submissions, there can be no basis to submit that I erred in not dealing with what D now says was a substantive part of his appeal against the Master.

30.  From the authorities cited above and summarized in the Decision at §18, it is clear that it is for the defendant to show cause. D’s submissions that “the courts have consistently held that the non-provision of crucial evidence can justify the setting aside of summary judgment” (in D’s Submissions, §15 and D’s Reply, §23) must be wrong and is not supported by any authorities provided to this Court.

31.  Besides, as this was never a legal argument raised by D in the appeal against the Master in D’s Written Submissions, and therefore I did not need to consider this issue in the Decision, it cannot give rise to any issue of law which should be considered by the Court of Appeal.

32.  It was also submitted in D’s Submissions (§§19-21) that I had misunderstood and/or misstated his case which led to summary judgment which is unjust and erroneous. He submitted that it was not his case or submissions that he did not enter into the agreement with P and was not bound by the Credit Card Terms as stated in the Decision, §23. However, this is plainly groundless. In D’s Aff at §16 it was stated: “The Defendant has pleaded in his Defence and Counterclaim at least three areas of serious factual dispute between the parties; a) Firstly, the Defendant denies that money is owing to the Plaintiff and denies having signed and entered into the Credit Card Terms or other agreements with the Plaintiff and that the first use of the credit card signals his acceptance of the Credit Card Terms…”.

33.  It was also submitted in D’s Submissions, §§22-26 that I erred to hold that there was no legal basis for any duty on P to disclose documents in support of D’s defence (see the Decision, §28). Apart from asserting that this cannot be correct and that “the courts in Hong Kong have repeatedly ruled that failure to provide crucial documents can be a reason for appellate review”, no authorities were cited in support.

34.  As for D’s Submissions at §24 that P’s failure to disclose evidence despite his request to P, and the Decision was based on “incomplete evidence” which warrants the Court of Appeal’s review, given the lack of authorities cited for the assertion that there was a legal duty on P’s part to so disclose, in the absence of any application for specific discovery and orders of the court, this ground is plainly unsustainable.

35.  Lastly, in D’s Submissions, §§25-26, whilst D says he is “bewildered” by my quotation of the Court of Appeal’s decision in AXA China Region Insurance Company Limited v Leong Fong Cheng in the Decision at §32, it is not submitted, nor can it be reasonably argued, that I erred to cite this in response to his submissions that the Master ought to have given him leeway by making inferences or credibility determination in his favour as he was a litigant in person. Plainly, all litigants, whether legally represented or not, should follow the same rules and procedures of the court. D submitted that there was “an element of bias against unrepresented defendants or litigants” which is misconceived. There can be no bias if the same rules apply to all litigants.

36.  For all the above reasons, the intended appeal against the Decision is utterly devoid of merits.

37.  Having regard to all the circumstances and overall justice of this case, I would refuse to extend time for leave to appeal against the Decision.

38.  As for the application to vary the costs order nisi, no application was made within 14 days of handing down the Decision as ordered by me in the Decision, §48. The order has already been made absolute.

39.  Besides, given that there was never any pending appeal to the Court of Appeal, or any application for leave to appeal, at the time of making the costs order nisi, the intended application to vary is plainly without any merits.

40.  Accordingly, I will dismiss D’s Summons.

41.  There is no reason why costs should not follow the event. D should pay to P the costs of and occasioned by D’s Summons, to be summarily assessed, if not agreed. P should lodge and serve its Statement of Costs (limited to 2 pages) within 14 days from the handing down of this Decision and D should lodge and serve any objections to P’s Statement of Costs (limited to 2 pages) within 7 days thereafter for summary assessment by me on paper.