SKK (H.K.) CO. LTD. AND ANOTHER v. TSUI PO HING AND ANOTHER

HCMP 934/2019

[2022] HKCFI 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 934 OF 2019

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D E C I S I O N

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1.  By Summons dated 21 January 2022, the 1^st and 2^nd defendants (“Ds”) apply for leave to appeal against this Court’s order made on 10 January 2022 (“Order”) refusing their application[1] for provision of transcripts of the hearings on 25 May 2021 (“May Transcripts”) and 22 October 2021 (“October Transcripts”).

2.  On 16 February 2022, the parties agreed that the Court can dispose of the Summons on paper, thereby waiving their right to an oral hearing. 

3.  The Summons, insofar as it relates to the May Transcripts, must be dismissed in limine.  Ds had applied for leave to appeal against my refusal to provide the May Transcripts in their summons dated 8 September 2021, and I refused the application for the reasons stated in §§15-17 of my Decision dated 28 October 2021 (“Leave Decision”).  Ds cannot make a second application for the May Transcripts when their application had already been refused, and leave to appeal against that refusal dismissed by this Court.  

4.  In their written submissions, Ds refer to their application for leave to appeal against the Leave Decision[2] and claim that for the purpose of that application, the Registrar of Civil Appeals has on 4 January 2022 approved the inclusion of the transcripts in the hearing bundle (in Chinese “批准被告人可以將書面聆訊謄本收納在申請文件冊內”).  This is clearly wrong.  The Registrar only stated that if Ds want to refer to any transcripts, such transcripts should be included in the hearing bundle (in Chinese “倘若第一被告及第二被告需要引用聆訊謄本以支持他們的上訴許可申請，他們亦可把有關的書面聆訊謄本（由法庭提供的版本）收納在申請文件冊內”[3]).  As this Court has already refused Ds’ application for the May Transcripts, there will not be any transcripts which need to be included in the bundle.

5.  As regards the application for leave to appeal against the order refusing Ds’ application for provision of the October Transcripts, it is an appeal against a case management decision.   

6.  It is well established that leave to appeal would only be granted if the Court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.  This means the prospects of succeeding must be more than “fanciful”, without having to be “probable”.  Even if this threshold requirement is met, the Court has a discretion to refuse leave (Hong Kong Civil Procedure 2022, §59/2A/4).   

7.  Where, as here, the intended appeal is an appeal against exercise of discretion of the judge, the applicant would have to show that he has an arguable case, with reasonable chance of success, that the relevant decision exceeds the generous ambit within which reasonable disagreement is possible, is plainly wrong, and not merely the appellate court would prefer a solution which the judge had not chosen (RK v YS, HCMP 1969/2012, 1 November 2012 (CA)).  This is because an appeal court will not interfere with a judge’s exercise of discretion unlessthe judge has misunderstood the law or the evidence or the exercise of discretion was plainly wrong (北京橙天嘉禾影視製作有限公司 v張承勷, HCMP 2666/2016, 11 November 2016).

8.  Ds have not prepared any draft notice of appeal against the Leave Decision.  Nor have they articulated any ground in support of their proposed appeal other than asserting that they have a right under the High Court Ordinance or the Rules of the High Court to be provided with transcripts. 

9.  I do not think that Ds have the alleged right to be provided with transcripts.  The starting point is that it is the responsibility of the parties to take notes of the proceedings if and insofar as they consider it necessary to do so.  The same applies to a litigant in person.  

10.  It must be emphasised that provision of transcripts is the exception rather than the rule as it involves the engagement of an outside transcriber to listen to the recording and transcribe the same into written form.  This can be a time consuming and costly process.  The amount to be paid by the applicant only covers part of the actual cost incurred in the process. 

11.  More importantly, where the proposed appeal is an appeal against an interlocutory order and the Court gave a written decision setting out the reasons for making the order, it is ordinarily sufficient for the parties to refer to the written decision and possibly, the submissions used by the parties at the hearing.  Provision of transcripts for interlocutory hearing would only add to the costs of the proceedings and encourage the parties to pick on matters said or not said at the hearing, when such matters would not assist determination of the appeal.   

12.  It is for these reasons that the Court would be slow to approve provision of transcripts of an interlocutory hearing where the parties only made submissions to the Court, and the Court gave a written decision on the application.  Consistent with this, it is the practice of the Court not to approve an application for provision of transcripts unless the hearing in question falls into one of the following categories:

(1)  an ex parte hearing where only the applicant was present.  The Court would ordinarily allow transcripts to be provided to the parties as the hearing was conducted in the presence of the applicant, but not the respondent or persons who may be affected by the order;

(2)  a trial where witnesses gave oral evidence, and such evidence is relevant to a pending appeal against the judgment;

(3)  a hearing where there is a dispute as to whether a party has  made certain concessions or admissions; and

(4)  a hearing where the Court gave oral reasons for the decision or judgment, and there is no written decision or judgment setting out those reasons.   

13.  It is incumbent upon a party applying for transcripts to satisfy the Court that there is a proper basis to accede to the application. For this purpose, the applicant has to (1) identify which parts of the transcripts he wishes to seek; (2) the purpose of seeking such parts of the transcripts; (3) why the notes of the proceedings which ought to have been taken by him are not sufficient; and (4) any other reasons sufficient to justify the Court exercising its discretion in his favour. 

14.  In the present case, other than stating that they have a right to be provided with the October Transcripts, Ds failed to explain why such transcripts are relevant to their renewed application for leave to appeal.  I do not think the October Transcripts are relevant to their application given that:

(1)  The hearing on 22 October 2021 was a hearing of Ds’ summons dated 8 September 2021 for leave to appeal against the “Dismissal Order”, the “Sale Order”, the “Costs Order”, the “1^st Translation Order”, the “Transcript Order” and the “2^nd Translation Order” (as defined in §2 of the Leave Decision).  Ps and Ds made detailed submissions and arguments in their respective written submissions served on the other party in advance of the hearing;

(2)  At the hearing, the parties essentially repeated the points already made in their written submissions.  Both Ds were present at the hearing, they could take their own notes of the hearing if they considered it necessary to do so.  If Ds did not do so, it goes to show that they did not consider it necessary to take note of what had been said at the hearing; and

(3)  More importantly, this Court has in the Decision ([2021] HKCFI 3219) set out the reasons for refusing leave to appeal.  It would not be necessary for Ds to refer to the October Transcripts to apprise of the arguments advanced by the parties and the reasons for dismissing their application.   

15.  In any event, as soon as Ds requested for provision of the October Transcripts by their letter dated 3 November 2021, this Court approved the provision of the audio recording of the hearing on 22 October 2021 to Ds at the usual charge of $170.  For reasons never explained, Ds did not pay the charge or take any step to obtain the audio recording.  Instead, Ds simply reiterated their request for the same transcripts in their letter dated 7 January 2022 as if their application had not been dealt with by the Court.  Such conduct is unacceptable.   

Disposition and costs

16.  For the above reasons, the Summons is dismissed.  

17.  Costs should follow the event.  I make a costs order nisi that Ds shall pay the costs of and occasioned by the Summons forthwith, to be assessed by way of gross sum assessment.  Subject to any comments which Ds may make, it seems to me that the costs claimed by Ps (HK$15,070) are very reasonable and should be allowed in full. If Ds wish to provide their comments on Ps’ statement of costs, they should do so within 7 days of this Decision by sending the same to e-Lodgement platform (https://e-services.judiciary.hk/elodge/hc/) or by fax.  This Court will assess the costs on paper.