THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD. v. KUAN TAO SHENG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No 101
(Civil)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. This is an application for leave to appeal to the Court of Final Appeal by the 1st defendant against a judgment of this Court given on 17 February 1998. The Court dismissed the appeal and the result was that the action by the plaintiff was able to proceed. It was an appeal concerning an application to strike out for want of prosecution.

2. Mr Chain concedes that there is no point of great general or public importance under s.23(1)(b) of the Hong Kong Court of Final Appeal Ordinance, but he says that leave ought to be given on the "or otherwise" provision. His submission is that the reasoning of this Court was demonstrably wrong. The issue he wishes to raise is whether the plaintiffs' delay, so far as the 1st defendant was concerned, was excusable. This Court decided that although the delay was plainly and obviously inordinate, the judge below should be upheld in his analysis that the period of delay from December 1994 to July 1996 was not inexcusable. In my judgment, I decided the matter thus at p.12:

"Although I may well have decided otherwise, this is a matter well within the judge's discretion and although I hold that he was wrong in his primary finding, I am not prepared on the evidence to say that he was plainly wrong in this alternative finding. In these circumstances I would uphold it."

On that matter, the Court was unanimous. It was therefore an appeal in an interlocutory matter on a question of discretion.

3. In these circumstances, what does the defendant have to show in order to get leave? Mr Tang SC, who resists this application, submits that in these circumstances leave will only be given if the error demonstrated is such that the decision of the Court of Final Appeal would be a foregone conclusion. With that we agree. That has not been demonstrated in this case. We would accordingly refuse leave. There is no basis for us to give leave under the "or otherwise" provision.

4. There is a further matter. This being an interlocutory appeal, it seems to us that the application is one which the Court of Final Appeal itself, through the Appeals Committee, ought to decide.

5. The application is dismissed.