LEE SHING CHUK v. EMPLOYER HUI CHUNG NUAN OF CHUNG MEI ENGINEERING CO AND ANOTHER

[English Translation – 英譯本]

HCMP 2315/20 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2315 of 2016

(ON AN INTENDED APPEAL FROM HIGH COURT PERSONAL INJURIES ACTION NO. 810 of 2013)

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JUDGMENT

Hon Chu JA (giving the judgment of the Court):

1.  On 3^rd September 2016, the plaintiff commenced these proceedings to apply to the Court of Appeal for leave to appeal against the judgment of Lok J of the Court of First Instance [“the judge”] dated 24^th June 2016.

2.  Later, the plaintiff filed altogether 3 summonses and 13 affirmations in the present case.  The last summons and affirmation were filed on 17^th October 2016.

3.  All these summonses and affirmations of the plaintiff mainly requested that a trial be conducted regarding his personal injuries claim.  The plaintiff also made various complaints and accusations against the defendant as well as some of the judicial officers, especially masters, who had previously dealt with his case.  He requested the Court of Appeal to set aside the previous decision of the court, make an order of compensation in favour of him and pursue a criminal investigation on the masters’ conduct.

4.  Having considered the application documents submitted by the plaintiff, this Court is of the view that all his applications by summons can be determined in the manner as provided in Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap 4A, Laws of Hong Kong, namely by a written judgment following consideration of the documents filed by the plaintiff without a hearing. 

5.  The plaintiff alleged that while he was in the 1^st defendant’s employment, he sustained injury owing to the 1^st defendant’s negligence and breach of the labour law.  Hence, he lodged a claim against the 1^st defendant in the Court of First Instance.  At a later stage, the court granted leave to join the 2^nd defendant as a party to the proceedings.  Since the facts and the background of the present case have already been set out in the judgment of Deputy Judge Marlene Ng of the Court of First Instance dated 5^th September 2014, we are not going to repeat the same here.

6.  What has led to the present case was the checklist review hearing conducted before Master Leong [“the master”] of the Court of First Instance on 20^th January 2016.  On that day, the plaintiff did not attend.  The master thus adjourned the hearing.  In the meantime, the master noticed that 4 directions given in the hearing on 13^th October 2015 were omitted from the sealed order relating to the checklist review hearing of the same day.  These directions concerned the service of the 1^st defendant’s witness statement, the date of the next checklist review hearing, the arrangement of the costs of the hearing, and the notice regarding medical expert witnesses the parties should give to the court.  In the circumstances, the master ordered that the original order dated 13^th October 2015 be amended to include the said omitted directions.

7.  The plaintiff felt aggrieved of the master’s amending the order dated 13^th October 2015 in his absence.  He sought leave from the judge of the Court of First Instance to appeal out of time.  He requested that the master’s order dated 20^th January 2016 be set aside.  Besides, the plaintiff also complained that he had not received the notice informing him to attend court on 20^th January 2016.

8.  The plaintiff’s appeal was heard before the judge.  Having read the master’s note of proceedings on 13^th October 2015, the judge confirmed that the above-mentioned directions given by the master during the hearing were indeed missed out from the sealed order in question.  For this reason, the judge was of the opinion that the master’s decision and the amendments to the said order on 20^th January 2016 were correct.

9.  Regarding the plaintiff’s complaint that he did not receive the notice informing him to attend the hearing on 20^th January 2016, the judge’s view was that as the master did not really deal with any substantive issues related to the present case, the plaintiff’s complaint was unnecessary.  The judge therefore dismissed the plaintiff’s appeal.

10.  The plaintiff felt aggrieved of the judge’s decision.  He applied to the judge for leave to appeal.  His application was refused.

11.  The plaintiff now applies to this Court for leave to appeal against the judge’s decision which was an interlocutory judgment.  Under Section 14AA of the High Court Ordinance, Cap 4, Laws of Hong Kong, the plaintiff, unless with leave of the court, shall not lodge an appeal to the Court of Appeal against an interlocutory judgment or order.  Furthermore, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

12.  The plaintiff in the present case filed in the court a large amount of documents, the vast majority of which had nothing to do with this application for leave to appeal.  His summons for leave to appeal as well as the affirmation in support of his application only repeated his claim and accusations against the defendant and stated his various matters of discontent.  They did not specifically advance any merits and grounds for appeal.

13.  Order 20 rule 11 of the Rules of the High Court provides that clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court.  In Man Ping Nam v Man Fong Hang (No.2) (2007) 10 HKCFAR 140, the Court of Final Appeal also stated clearly that the failure of the court’s original order to cover a particular matter as a result of an accidental omission was capable of being corrected under Order 20 rule 11 of the Rules of the High Court.  The Court of Final Appeal also pointed out that the court (at all levels) has an inherent or implied discretionary power to clarify the ambiguities of the original order if the court’s intention appearing from the body of the judgment is manifest.  It did not matter even though the order concerned had been sealed.

14.  In this case, as omissions arising from clerical mistakes were present in the sealed order, the master rightly exercised his judicial power to rectify and amend the order.  It was also right and correct for the judge to refuse the plaintiff’s appeal.

15.  The plaintiff’s intended appeal is without the slightest prospect of success, nor is there any other reason in the interests of justice that the appeal should be heard.  Thus, the present application for leave to appeal does not satisfy the requirement of Section 14AA of the High Court Ordinance.  We refuse to grant leave to appeal and order that the plaintiff’s application for leave to appeal by summons filed on 3^rd September 2016 be dismissed.

16.  Regarding the summonses filed on 20^th September, 6^th October and 17^th October 2016, since the matters requested for were without legal basis and did not comply with the legal procedures, we therefore dismissed the said summonses.

17.  Furthermore, the plaintiff’s application for leave to appeal and his applications by summons are devoid of any merit.  For this reason, we, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, make an order that no party may under rule 2A(7) request the Court of Appeal to reconsider the present determination at an inter partes oral hearing.

18.  The 1^st defendant had not responded to the application relating to the present case.  The 2^nd defendant only expressed his objection to the application for leave to appeal by a solicitor’s letter.  After consideration, we exercise our discretion and make no order as to costs in the present case. 

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.