曹雯娟小姐 v. 馬惠屏小姐 AND ANOTHER

CAMP 217/2024, [2025] HKCA 868

On Appeal from [2024] HKDC 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 217 OF 2024

(ON AN INTENDED APPEAL FROM DCCJ NO 127 of 2022)

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D E C I S I O N

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Hon Au JA (giving the Decision of the Court):

A. Introduction

1.  The plaintiff commenced her action against the defendant in the District Court in 2022 under DCCJ 127/2022 (“the Action”).  Thereafter, relevantly:

(1)  By way of an order dated 9 November 2023, Master Soong provisionally struck out the claim pursuant to Order 25, rule  4 of the Rules of the District Court (Cap 336H)  (“the RDC”)  by reason of the plaintiff’s absence at the Case Management Conference (“CMC”)  on the same date.

(2)  By way of an order dated 27 March 2024 (“the Refusal Order”), Master Eva Leung refused the plaintiff’s application to restore the Action.

(3)  By way an order dated 18 July 2024 (“the Dismissal Order”), HH Judge Phillis Loh (“the Judge”)  dismissed the plaintiff’s appeal against the Refusal Order.

(4)  By way of an order dated 21 October 2024 (“the 21 Oct Order”), the Judge refused to grant leave to the plaintiff to appeal against the Dismissal Order.

(5)  By an order dated 10 December 2024 (“the 10 Dec Order”), the Judge dismissed the plaintiff’s summons taken out on 10  October 2024 making various interlocutory applications under the Action.

2.  This is the plaintiff’s application by way of summons dated 4 November 2024 (“the Summons”), seeking leave to appeal against the judgment and/or order made by the Judge on “10 & 21 of October of 2024”.

3.  As directed by the Registrar of Civil Appeals (“RCA”)  on 22 November 2024, as the Judge had not made any order against the plaintiff on 10 October 2024, the Summons is to be treated as an application for leave to appeal against only the 21 Oct Order.  The RCA’s said direction is clearly correct.

4.  Further, given that the 21 Oct Order is a refusal by the Judge to grant leave to appeal against the Dismissal Order, following the practice of this court as stated in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we would treat this application as a renewed application for leave to appeal against the Dismissal Order.

5.  On 17 January 2025, the plaintiff lodged a letter referring to the RCA’s above-mentioned direction and stated that she needed to amend the Summons.  She attached a new “revised summons” to the letter, which summons included seeking leave to appeal against judgment and/or orders made by the Judge on “4 November of 2024” and “10 to 12 Dec 2024”.  As no leave was granted to the plaintiff to file this “revised summons”, we will not consider it in this decision.

B.  Background

6.  The background of this case has been encapsulated in the three written judgments rendered by the Judge for the Dismissal Order, the 21 Oct Order and the 10 Dec Order (respectively, the Dismissal Decision, the Leave Decision and the Abuse Decision as defined below).  We do not intend to repeat all of the background facts and would only set out those facts which are material to the understanding and disposal of the present application.

7.  In short, by way of the Action, the plaintiff in substance claimed against the defendants for having allegedly committed a series of fraud, deception, misrepresentation and other foul plays in the process of her purchase and taking over of the defendants’ fish stall business in late June 2020, which led to the closing down of the business in April 2021.[1]

8.  On 9 November 2023, by an Order made by Master Soong, the Action was provisionally struck out pursuant to Order 25, rule 4 of the RDC by reason of the plaintiff’s absence at the CMC.[2]

9.  On 5 December 2023[3], the plaintiff by summons applied to restore the Action pursuant to Order 25, rule 4(3)  of the RDC (together with a series of other applications).  In the process, the plaintiff had filed voluminous amount of documents but none of them provided any reason for her absence at the CMC to support her application to restore the Action.[4]  On 27 March 2024, Master Eva Leung refused to restore the Action (ie, the Refusal Order)[5].

10.  The plaintiff then appealed against the Refusal Order.  By her decision dated 18 July 2024 (“the Dismissal Decision”)[6], after considering the documents submitted by the plaintiff and finding that the plaintiff had not proffered any good reason to explain her absence at the CMC[7], the Judge dismissed the plaintiff’s appeal and made the Dismissal Order.

11.  The plaintiff then sought leave to appeal against the Dismissal Order.  After considering the voluminous statements and documents submitted by the plaintiff, the Judge found that the plaintiff’s said documents did not support her application for leave to appeal, but were new evidence and allegations made against the defendants purportedly in support of the plaintiff’s claim.[8] By her further decision dated 21 October 2024[9] (“the Leave Decision”), the Judge dismissed the plaintiff’s leave application and made the 21 Oct Order.

12.  On the other hand, despite that the Action had been struck out, on 10 October 2024, the plaintiff filed a summons and further documents without leave of the court, to make various interlocutory applications purportedly under the Action. By way of her decision dated 10 December 2024[10] (“the Abuse Decision”), the Judge dismissed the said summons and made the 10 Dec Order.  In this decision, the Judge effectively stated that it was an abuse of process by the plaintiff in taking out the summons given that her claim had already been struck out.  The Judge further stated that if the plaintiff continued to make any further such applications, she would consider granting an injunction against the plaintiff restraining her from continuing to abuse the process of the court.

C.  This renewed leave to appeal application

13.  In the Summons, and her affidavit filed in support of the Summons, the plaintiff has in substance raised the following intended grounds of appeal:

(1)  The case is highly complex;

(2)  Her claim against the defendant involves public interest because the claim is necessary to expose the alleged organised fraud committed by the defendants by having a fair trial and a legal precedent so that justice would be upheld;

(3)  The plaintiff needed more time to gather and submit supplementary information against the defendants which might have delayed her application for leave to appeal; and

(4)  In the circumstances, the plaintiff wishes to make an application for extension of time if her summons was found to be issued out of time.

14.  On 4 November 2024, 19 November 2024 and 17 January 2025, purportedly in support of this application, the plaintiff sought to file affidavits, exhibits and the application bundles[11] which were disjointed and clearly over the page limit as stipulation in paragraph 8 of Practice Direction 4.1 without permission.  They are also not in compliance with the directions made by the RCA concerning the application bundles and the filing of documents.[12]

15.  On 14 February 2025 and 12 March 2025, the RCA again directed the plaintiff to organise, file and serve her revised application bundles and written submissions, and extended time for her to do so by 14 April 2025.  The plaintiff did not comply with the directions and on 14 April 2025, she filed yet another affidavit without leave together with her written statements (of 29 pages)  and accompanying documents which were also incompliant with the RCA’s directions[13].

16.  On 19 May 2025, the plaintiff filed another affidavit without leave attaching a written statement dated 24 April 2025 (of 5 pages)  and other supporting documents (of 38 pages)  which sought to suspend the application for a period of 3 to 6 months for her to prepare the evidence.

17.  We reiterate the importance of complying with the requirements in Practice Direction 4.1 and the directions issued by the RCA.  Insofar as any of the documents sought to be filed or lodged by the plaintiff which are not in compliance with the Practice Direction and the RCA’s relevant directions, we would not have any regard to them.  See Practice Direction 4.1, paragraph 15.

18.  Having considered the relevant papers before the court, we believe that it is appropriate to deal with the present application on the basis of written submissions only pursuant to Order 59, rule 2A(5)(a)  of the Rules of the High Court (Cap 4A)  (“the RHC”).

D.  Legal principles

19.  Pursuant to section 63A(2)  of the District Court Ordinance (Cap 336), leave to appeal may only be granted if the Court of Appeal is satisfied that the intended appeal has a reasonable prospect of success or that there are some other reasons that the intended appeal should be heard.  Reasonable prospect involves the notion that the prospect must be more than “fanciful” without having to be “probable”.

E.  Discussion

20.  Under Order 25, rule 4 of the RDC, the court must provisionally strike out the claim if the plaintiff fails to attend a case management conference.  The court has a discretion to restore the action under Order 25, rule 4(4)  upon the party’s application, but pursuant to Order 25, rule 4(5), the court shall not so restore the claim “unless good reasons have been shown” to its satisfaction.

21.  The plaintiff had applied to restore the provisionally struck out claim before Master Eva Leung, which was unsuccessful.  In respect of her appeal against the Refusal Order, the Judge was not satisfied that there were good reasons to restore the claim as, importantly, the plaintiff had not given any reasonable or justifiable explanation for her absence at the CMC.  The Judge explained her reasons in the Dismissal Decision at [43] - [56] as follows:

“恢復原告人申索

43. 在民事司法制度改革後，案件管理會議現屬於進度指標日期（milestone date），是法庭進行積極案件管理重要的一環。根據《區域法院規則》第25號命令第 4(1)  條，凡原告人缺席案件管理會議，法庭須暫時剔除原告人的申索。

44. 有關恢復一個被暫時剔除的申索的法律原則，見香港民事程序2024（第一冊）第757頁，第25/1C/1段，法庭只會在信納有「良好的理由」之情況下，才會恢復該宗申索。有關原則可參照：World Chinese Business Investment Foundation Ltd v Shine Rainbow Marketing Ltd, HCA 2547/2007 (Judgment of Madam Registrar Au-Yeung, as she then was, dated 12 February 2010)。

45. 法庭一般不會輕易批准失責/違規方恢復申索，除非有良好的理由及考慮過案件是否有合理的訴因及勝訴的機會。這是為了維持受法庭規範的訴訟時間表的嚴正性，及避免/減低/剔除無合理訴因或基本證據、瑣碎無聊及纏繞的訴訟。

46. 法庭應用三個步驟去考慮有關恢復暫時剔除申索的申請：

(1)  申請人必須首先提供良好的原因以解釋他的缺席；

(2)  法庭之後會考慮是否行使酌情權去恢復有關申索；及

(3)  假如法庭決定恢復有關申索，法庭可考慮附加條件。

47. 應用有關的法律原則於本案之中，原告人在誓章中從來沒有解釋她有任何原因以致缺席案件管理會議。在2024 年3月27日聆訊中，原告人聲稱她的缺席是因為她不明白司法常務官於2023年8月3日的命令，特別是其中第 1 段有關刪除申索陳述書中夾附的22頁該報吿草稿。

48. 就此事情，原告人聲稱她在詢問法院職員後，選擇其他方式去處理有關傳訊令狀的事宜，包括向區域法院法官作出上訴，以及後來提出申請修改傳訊令狀。原告人解釋她已經選擇了其他方式去進行這個案件，而她亦沒有按照2023 年8月3日的命令第1段行事，因而她認為對於該命令之其他段落亦不需要遵從，包括該命令第7段有關2023 年11月9日案件管理會議聆訊，原告人亦以為不需要出席。

49. 在本上訴中，原告人沒有就着她缺席於案件管理會議聆訊一事提出任何其他解釋，在聆訊中她確認維持以上於2024年3月27日聆訊中所作之解釋。

50. 本席認為這是一個完全不合理，更加不是「良好」的原因以致缺席聆訊。即使原吿人真的不明白任何有關法庭文件或命令，她仍然有法律責任遵從命令出席2023年11 月9日的案件管理會議聆訊。她聲稱不明白命令第1段意思的說法，或源自她自己的不合理誤解，均非良好原因去缺席聆訊，更不能被接納為不遵守命令的理據。

51. 2023年8月3日的命令第7段清晰提列出：根據第25號命令第4條，原吿人必須岀席2023年11月9日的案件管理會議，否則她的申索將被暫時剔除而不會另行通知。

52. 考慮了原告人的所有解釋、陳詞及證據，本席認為在本案的情況中，原告人就其缺席於2023年11月9日的案件管理會議聆訊，並沒有任何「良好」的原因。根據上述法律原則，原吿人未能達到第一步驟的要求，她的恢復申索申請應被撤銷。

53. 此外，原告人的申索並非十分清楚以致對方不能真實抗辨或答覆或完全沒有合理可抗辯的空間。相反地，她詳列於申索陳述書中對被告人的指控並沒有合理事實基礎，不構成合理訟因。法庭頒下修訂指示後，原告人不服上訴，但卻拒絕跟從修訂指示，申請加入更多與本案被告人毫無關係的其他潛在被告及122頁新修訂的申索陳述書。

54. 從被告人所存檔的抗辯書及多份誓章中可見，有關原告人所聲稱的申索，包括愛民魚枱業務的事情，雙方存在多項事實爭議，原告人的申索並非十分清楚以致對方不能真實抗辨。其餘有關原告人懷疑被告人可能牽涉向原告人植入納米物質或晶片、非法注射藥物等人身傷害或犯罪行為，更是毫無根據，無的放矢。

55. 有關原告人聲稱有其他人仕可能涉及刑事成份的其他申索，本席看不到這些毫無根據的指控與本案被告人或本案有何關連。

56.  總括而言，在公義及公平考量上，本席認為在本案的情況中，沒有任何理據或原因，致使法庭行使酌情權去恢復原告人的申索。”

See also Leave Decision, [13] - [15].

22.  The Judge was plainly right in her analysis and conclusion both as matter of law and as applied to the evidence in this case.

23.  We note that for this application, the plaintiff still has not provided any or any justifiable reason for her absence at the CMC in the Summons and the related affidavits.

24.  In the premises, the intended appeal has no merits at all, and no leave to appeal should be granted.

F.  Dispositions and Costs

25.  Accordingly, we dismiss the Summons.

26.  As to costs, since the defendants have not responded to the Summons nor taken any steps in this application, a just and fair costs order should be no order as to costs, and we so order.  This costs order is made on a nisi basis and shall become absolute 14 days from today unless any of the parties applies by summons to vary it.

27.  Lastly, as the plaintiff’s application is totally without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8)  of the RHC.

28.  Although all the Judge’s decisions are rendered in Chinese, this Decision is written English as the Summons, the plaintiff’s affidavits filed in support of the Summons are all in English.