AN ZHOU AND OTHERS v. ZHOU ZHENG KUAN AND OTHERS

CACV 193/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2012

(ON APPEAL FROM HCA NO. 241 OF 2010)

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Hon Fok JA (giving the Judgment of the Court):

Introduction

1.  On 17 July 2013, we dismissed the 1^st defendant’s appeal against the judgment of To J refusing to grant relief from the sanctions provided for under two unless orders.  Our reasons for judgment were handed down on 19 July 2013.

2.  The 1^st defendant now applies, by notice of motion dated 14 August 2013, for leave to appeal against our judgment to the Court of Final Appeal.

3.  The application is opposed by the 1^st and 3^rd plaintiffs.  It may also be opposed by the 2^nd plaintiff, for whom Mr Tony Chow is instructed as counsel by Messrs C.L. Chow & Macksion Chan in the action, but the court has received a letter apparently from the 2^nd plaintiff suggesting she has not authorised lawyers to act for her in respect of this application. We are not able to resolve the issue of authority to act for the 2^nd plaintiff today but in any event, even if the 2^nd plaintiff has not authorised the opposition, the 1^st and 3^rd plaintiffs have and so the application is opposed.

4.  We are invited to exercise our discretion to grant leave to appeal either on the basis that questions of great general or public importance are involved in the appeal or on the “or otherwise” ground.

5.  The notice of motion poses five questions, said to be of great general or public importance, as follows:

“(i) Whether in the absence of any or any sufficient evidence that a litigant is abusing the Court’s process, it is ever right to adopt a disciplinary approach in response to a litigant’s breaches of interlocutory Orders, and to enter judgment against a litigant without a trial on the merits where no question of inability to have a fair trial is involved?

(ii) Whether it is ever right to strike out the whole of a defendant’s Defence for failure to provide particulars under certain paragraphs of the Defence in circumstances where even without those ‘offending’ paragraphs, the remaining Defence still contains valid defence(s)?

(iii) Alternatively, whether it is ever an appropriate proportionate response to strike out the whole of a defendant’s Defence for failure to provide particulars under certain paragraphs of the Defence in circumstances where even without those ‘offending’ paragraphs, the remaining Defence still contains valid defence(s), in circumstances where there is no or no sufficient evidence of abuse of process, and where no question of inability to have a fair trial is involved?

(iv) Further and additionally, whether it is ever right to do so when the same claim against other Defendants are [sic] proceeding to trial, and there is therefore a risk of inconsistent verdict?

 (v) Absent any real prejudice, must every case be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication?”

6.  Although leave to appeal was not required for the appeal before us, it was nevertheless an interlocutory appeal and is such for the purposes of an application for leave to appeal to the Court of Final Appeal: see Bank of China (Hong Kong) Ltd v Twin Profit Ltd and Others [2012] 4 HKC 75 at §§9-11.

7.  Leave to appeal to the Court of Final Appeal in interlocutory matters is generally only granted in rare and exceptional cases: see CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629 at §1.

8.  The application to To J below involved the application of the principles regarding relief from sanctions set out in RHC O.2 rr.4 and 5.  It was not suggested that the Judge had erred in identifying the relevant principles and the appeal was against the Judge’s exercise of discretion to decline to grant relief in the circumstances of the present case.  With that general observation in mind, we turn to the questions identified in the notice of motion.

9.  The first question does not, with respect, arise in the present case because its premise, that there is no evidence of an abuse of the court’s system, is contrary to the finding of To J, upheld in this court, that the 1^st defendant’s default was contumelious and/or an abuse of the court’s process.

10.  The second, third and fourth questions raise the issue of the proportionality of not granting relief from the sanction in question.  These questions must necessarily be fact dependent and therefore, in our view, are not questions of great general or public importance.

11.  The fifth question is similarly fact-sensitive since there is no dispute that the effect of the granting of relief from sanction would have on each party is one of the factors taken into account by a court under O.2 r.5(1)(j).

12.  In the Skeleton Submission of the 1^st defendant seeking leave to appeal, counsel for the 1^st defendant,[1] did not address (or did not directly address) the five questions identified in the notice of motion.  Instead, it was contended, relying on article 14.1 of the International Covenant on Civil and Political Rights, that:

“… absent any decision of the top court (sic Court of Final Appeal) dealing with the impact of human rights implication on the application of the Civil Procedure Rules, it is a point of great general and public importance for that court to consider whether it is a proper exercise of the Court’s power under the rules to strike out the Applicant’s case where the Applicant has been found to be in contumacious breach of an order of the Court if it can be shown that notwithstanding the Applicant’s conduct there is no substantial risk that a fair trial could not follow.”

13.  The argument that a refusal to grant relief from sanction would interfere with the 1^st defendant’s rights under article 14.1 of the ICCPR (or its Bill of Rights equivalent) was not raised before To J or in this court.  The point, although one of law, is a new point on which neither To J nor this court has been addressed.  In the circumstances, we consider that the question of whether leave should be granted to allow the point to be taken in the Court of Final Appeal de novo is a matter that should be left to the Appeal Committee.

14.  Similarly, it is now the usual practice of this court not to grant leave on the “or otherwise” ground but to leave that as a matter to be decided by the Court of Final Appeal itself: see MGA Entertainment Inc. v Toys & Trends (Hong Kong) Limited and Others, unrep., CACV 104/2011, 22.10.12 per Tang VP at §13.

15.  For these reasons, we refuse leave to appeal.

16.  We order that the costs of the application for leave to appeal be paid by the 1^st defendant to the plaintiffs, to be taxed if not agreed.