LUCKY POWER LTD v. LAM, PHILIP YUNG TAK and/or other occupiers AND ANOTHER

HCMP 2798/2016
and HCMP 3331/2016
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NOS 2798OF 2016 AND 3331 OF 2016

(ON AN INTENDED APPEAL FROM HCA NOS 481 of 2012 AND 1785 OF 2012)

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HCA NO 481 OF 2012

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BETWEEN

AND

HCA NO 1785 OF 2012

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BETWEEN

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(Heard together)

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JUDGMENT

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

1. On 24 February 2017, the Court (Cheung CJHC and Lam VP) refused to grant extension of time to Mr Lam to appeal against the judgment of Chow J of 27 July 2015.  The Court also dismissed all the summonses issued by Mr Lam.  The Court further explained in the judgment that as Mr Lam had no authority to represent the 2^nd Defendant, he could not issue the summonses on behalf of the 2^nd Defendant and it was not properly a party in the applications before the Court.

2. By two notices of motion of 20 March 2017 (one issued in respect of each set of proceedings), Mr Lam applied for leave to appeal against our judgment of 24 February 2017 to the Court of Final Appeal. Mr Lam also filed identical affirmations in each set of proceedings to support his applications.  By a document of 1 April 2017, Mr Lam asked the Court to accept the affirmations as his submissions in the applications.

3. The notices of motion are processed in accordance with PD 2.1 and they are considered by three judges by reason of the exception specified in Section 34B(4)(aa) of the High Court Ordinance.  Hence, in addition to Cheung CJHC and Lam VP, Poon JA also took part in the consideration of these notices of motion.

4. The relevant criteria for granting such leave are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, 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.”

5. In the Notices of Motion Mr Lam did not set out any question of great general or public importance.  All the matters set out in the Notices and his affirmations are repetitions of arguments or materials already considered by the Court in the judgment of 24 February 2017.  The exercise of discretion in refusing to grant extension of time was an exercise based on the facts and circumstances of the present case.  The long and unexplained delay, the lack of merit in the intended appeal and prejudice to the other party, the rejection of the fresh handwriting expert report for the purpose of the applications were considered by us in the context of the circumstances in this case.  No question of great general or public importance is involved.  We cannot discern any question which remotely satisfies the criteria in Section 22(1)(b). 

6. There is no other reason why the appeal ought to be submitted to the Court of Final Appeal for decision.

7. We therefore decline to grant leave and dismiss the motions accordingly.

8. As the Plaintiff has not filed any documents addressing the Notices of Motion notwithstanding the direction in para 3(b) of PD 2.1, we shall make no order as to costs in respect of the same.