CENTALINE PROPERTY AGENCY LTD v. NGAU WING CHI

CACV 349 /2021

[2021] HKCA 1795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 349 OF 2021

(ON APPEAL FROM HCSA NO 11 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 28 April 2021, the defendant filed with the Court of First Instance an application for leave to appeal against the decision of Deputy Adjudicator Kestrel Lam made in the Small Claims Tribunal (“the Tribunal”) on 16 April 2021.

2.  Deputy High Court Judge MK Liu considered the leave application on paper and dismissed the application on 18 June 2021^[1].

3.  By a letter dated 22 June 2021, the defendant asked the judge to reconsider her grounds of appeal and written submissions or to conduct a hearing for the fair disposal of her application.

4.  In response to the defendant’s letter, the judge directed on 23 June 2021 that the application has been decided and would not be reconsidered.

5.  The defendant then filed a Notice of Appeal with the Court of Appeal on 15 July 2021 against the decision of the judge dated 18 June 2021 and the directions dated 23 June 2021.

6.  Pursuant to section 28 of the Small Claims Tribunal Ordinance, Cap 338 (“SCTO”), the refusal by the Court of First Instance to grant leave to appeal against a decision of the Tribunal is final. Therefore, the Registrar of Civil Appeals directed, inter alia, that if the defendant objects to her Notice of Appeal being dismissed, she may lodge written submissions in support of her objection.  The defendant lodged her written submissions on 12 August 2021.

7.  The defendant’s submissions may be summarized as follows:

(1)  This appeal is against the judge’s disposal of her leave application, not the Tribunal’s decision.  It is the enforcement of the right to appeal under section 28 of SCTO and Order 55 Rule 2 of the Rules of the High Court (“RHC”). 

(2)  This appeal is within the jurisdiction of the Court of Appeal provided in section 13(2)(a) of the High Court Ordinance, Cap 4 (“HCO”).

(3)  The Notice of Appeal was filed as a notice of motion as per Order 59 Rule 3(1) of the RHC.  The same procedures as in §4 of Chow Shun Yung v Wei Pih Stella & Another (2003) 6 HKCFAR 299 should apply to this case.

(4)  The Court of Appeal has jurisdiction to correct the procedural impropriety of the Court of First Instance even when there is no provision for lodging appeal as illustrated in Suen Hung Shan v Commissioner of Inland Revenue [2020] HKCA 1084.

(5)  Leave to appeal is not mandatory in the present case.

(6)  The Court of Appeal should activate its inherent jurisdiction to correct the judge’s decision to dispose of the application on paper^..

(7)  The finality under section 28 of the SCTO refers to an appeal from the Tribunal’s decision under the assumption that the appeal procedures under Order 55 of the RHC have been adhered to and the judge has validly discharged his duty.  The failure of the judge to observe Order 55 Rule 2 lands an appeal in the Court of Appeal pursuant to section 13 of the HCO.  Section 28(3) of the SCTO does not exclude this appeal from being lodged via other route.  The breach of natural justice in depriving her right to an oral hearing warrants the Court of Appeal’s intervention to set aside the judge’s decision and order a hearing by another judge.

(8)  There is no legal basis in support of the dismissal of this appeal without a hearing by the Court of Appeal and the decision published in a judgment.

8.  Although it is clear from the wording of section 28 of the SCTO that the refusal by the Court of First Instance to grant leave to appeal against a decision of the Tribunal is final, the defendant contended that the Court of Appeal has the jurisdiction to hear the present appeal pursuant to section 13(2)(a) of the HCO which provides that the civil jurisdiction of the Court of Appeal shall consist of appeals from any judgment or order of the Court of First Instance in any civil cause or matter.  She relies on the case of Suen Hung Shan v Commissioner of Inland Revenue.

9.  This contention is misconceived.  Section 13(2) confers the jurisdiction to hear appeals to the Court of Appeal.  It does not have the effect of giving the right to a litigant to appeal against any judgment or order of the Court of First Instance in any civil cause or matter. The right to appeal is still governed by the relevant provisions or rules. The relevant provision in the present case is section 28 of the SCTO. 

10.  The case of Suen Hung Shan is not applicable to the present situation.  In that case, a judge of the Court of First Instance dismissed the application taken out by the Commissioner of Inland Revenue to strike out the application for leave to appeal against the assessment of the Board of Review.  The Commissioner has obtained leave to appeal against the decision of the judge.  It was under these circumstances that the Court of Appeal heard the Commissioner’s appeal and considered the issue of the proper appeal procedure.  It was not a case where the Court of Appeal considered an issue of procedural impropriety when a party did not have the right to appeal or to apply for leave to appeal.

11.  Under these circumstances, as the defendant does not have the right to appeal or to apply for leave to appeal against the judge’s refusal of leave, her complaints against the judge become irrelevant. In any event, her complaint against the judge for breach of natural justice in failing to observe Order 55 Rule 2 of the RHC in dealing with her leave application on paper without an oral hearing is untenable.  Order 55 Rule 2 of the RHC provides that:

“Except where it is otherwise provided by these rules or under any enactment, an appeal to which this Order applies shall be heard and determined by a single judge.”

12.  This provision applies to appeals.  The defendant’s previous application before the judge is an application for leave to appeal, not an appeal by itself.  The judge has the duty to actively manage cases and is entitled to deal with the case without the parties needing to attend at court, pursuant to Order 1A Rule 4(2)(j) of the RHC.  As stated by Ribeiro PJ in Chow Shun Yung v Wei Pih & Anr at §37.1, the right to a hearing is not absolute and the court may properly decide the case on the basis of written submissions where no findings of fact are needed and oral submissions are considered unnecessary (at §37.4).

13.  For the above reasons, the defendant does not have the right to lodge the present appeal.  We strike out the Notice of Appeal as it is incompetent.  As the claimant has not been served with the Notice of Appeal, we make no order as to costs.