LO KING YEUNG v. EDDIE CHU HOI DICK

CACV 192/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192OF 2017

(ON APPEAL FROM HCMP NO 482 of 2017)

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AND

CACV 193/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 193 OF 2017

(ON APPEAL FROM HCMP NO 483 of 2017)

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JUDGMENT

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

1.  By the judgment of 6 November 2017 in CAMP 18 and 19 of 2017, this Court (Cheung CJHC and Lam V-P) refused to grant leave to appeal against the decisions of Au J of 31 July 2017.

2.  At the end of that judgment, we noted that as the appeals brought against the decisions of 31 July 2017 in CACV 192 and 193 of 2017 were brought without leave in contravention of Section 14AA of the High Court Ordinance, those appeals appear to be incompetent and ought to be struck out.  There are ample supporting authorities in this regard: Fok Hing (HK) Trading Ltd v Guna Wan-Indra Trading as Bumipala Dhanadwipa CACV 74 of 2014, 4 July 2014; 黃志堅 v 調查委員會 [2015] 2 HKLRD 1106; Kwangtung Provincial Bank v Chung Sun Kwan CACV 64 of 2014, 15 August 2014; Terraform Engineering Co Ltd v Full Wealth Investment Ltd CACV 202 of 1998, 23 September 1998.

3.  Before making any orders in respect of CACV 192 and 193 of 2017, we invited the Plaintiff to advance submissions in this regard.

4.  On 13 November 2017, solicitors for the Plaintiff lodged a set of submissions from counsel on the new constitutional point.  No submission was advanced in that set of submissions on the incompetence of the appeals due to the lack of leave and Section 14AA of the High Court Ordinance.

5.  This Court does not have the power to re-open the refusal of leave and we have already addressed the so-called new constitutional point at [16] of the judgment of 6 November 2017.  The submission we invited at the end of that judgment was not an invitation to lodge submission on the new constitutional point.  Hence, the set of submissions lodged on 13 November 2017 is not germane.  It would seem that counsel for the Plaintiff failed to understand the significance of our refusal of leave and our observations at [21] of the judgment of 6 November 2017.

6.  The Court gave the Plaintiff one more indulgence to lodge submissions by 21 November 2017 to explain why CACV 192 and 193 of 2017 should not be struck out as leave to appeal has been refused.

7.  In a first letter of 21 November 2017, solicitors for the Plaintiff indicated that they were not aware of any situation where an appeal, if leave was required and not granted, can still be maintained.  It also said the Plaintiff had no further submission on the striking out of the appeals.

8.  In a second letter of 21 November 2017 sent by fax to the Court about an hour later, solicitors for the Plaintiff asked for the first letter to be “withdrawn”.  It further said that the Plaintiff had two points in reply:

“ (1) The Court of Appeal has struck out the plaintiff’s appeal on the basis that leave is required and the Court of Appeal has no jurisdiction to strike out if leave is not required. We maintain that leave to appeal is not required and the Court of Appeal, now so constituted, has no jurisdiction;

(2) The plaintiff seeks, in paragraph (4)(a) of the Originating Summons HCMP 482/2017 and HCMP 483/2017, a declaratory relief under the High Court’s statutory power provided for in Rules of the High Court (Cap 4A), O 15 r 16.  The High Court’s declaratory power is wide and extensive to make order as to rights.”

9.  In light of such change of position on the part of the Plaintiff, the Court listed the appeals for a hearing on 23 November 2017 to consider if they should be dismissed in light of the refusal of leave.

10.  Of the two points raised in the second letter of 21 November 2017, the second one has no bearing on the competence of these appeals.

11.  With respect, counsel was not entirely accurate in his understanding of the situation. This Court had not yet struck out the appeals when submissions were invited. But he was correct in understanding that it had been decided in CAMP 18 and 19 of 2017 that leave is required for the appeals to be brought, see [5] of that decision. And it is a decision binding on the parties to these appeals (the same parties as in CAMP 18 and 19 of 2017). For this reason, it matters not that the Plaintiff continued to maintain that leave is not required. For the purposes of these appeals, the decision in CAMP 18 and 19 of 2017 on the requirement of leave is binding.   

12.  In the circumstances, it is plain and obvious that the appeals are incompetent and ought to be struck out accordingly. And we are not persuaded otherwise by counsel.

13.  We now order the appeals to be struck out and dismissed. We also order that the Plaintiff shall pay the Defendants their respective costs in the appeals. Having considered the statement of costs submitted by the Defendant in CACV 192 of 2017 and heard submissions of the same, such costs be summarily assessed at $48,500.