WONG TAI WAI DAVID v. THE HONG KONG SAR GOVERNMENT

CACV19 /2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL 19 of 2003

(ON APPEAL FROM HCA No.4309 of 2001)

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REASONS  FOR  JUDGMENT

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Hon. Yuen JA:

1.  On 1 December 2004 we heard the Plaintiff’s motion for leave to appeal to the Court of Final Appeal against the judgment of this Court handed down on 7 September 2004.

1.    At the conclusion of the hearing, we dismissed the motion for reasons which we indicated would be reduced into writing and handed down in due course.  We do so now.

Background

2.  In September 2001, the Plaintiff issued the writ in this action, claiming damages from the Government.  His statement of claim was filed in May 2002. 

Defendant’s Summons to strike-out

3.  In June 2002, the Defendant issued a summons to strike out the statement of claim on the grounds that it disclosed no reasonable cause of action, was frivolous and vexatious and was an abuse of the process.

Plaintiff’s Summons for discovery etc

4.  Whilst the strike-out summons was pending, the Plaintiff issued a summons in September 2002 for a number of orders, including discovery and inspection of documents and for interrogatories and other directions. 

5.  On 13 December 2002, Master Levy adjourned the application for discovery and inspection of documents, and made no order on the application for interrogatories and other directions. 

6.  The Plaintiff appealed Master Levy’s order.  The appeal was heard by Sakhrani J on 15 January 2003. 

7.  In a judgment given the same day, Sakhrani J dismissed the appeal.  The judge said in his judgment that the Defendant’s strike-out summons was fixed for hearing in July 2003 and until that summons was heard, it would be premature to proceed with applications of the type that the Plaintiff was seeking.  Further, only when the pleadings were formulated could one see what were the exact issues between the parties. 

8.  The good sense of that decision is obvious - if the Defendant succeeded in its strike-out summons, the time and costs that would be expended for discovery and inspection of documents, etc. would be saved.

9.  Sakhrani J’s decision was of course made in the exercise of the judge’s discretion in a matter of case management.

10.  The Plaintiff appealed Sakhrani J’s decision in CACV 19/2003. 

The Strike-out decision

11.  In the meantime, the Defendant’s strike-out summons was heard by Deputy Judge Poon.  In his judgment of 5 August 2003, the deputy judge struck out the statement of claim but only on the basis that it disclosed no reasonable cause of action.

12.  The Plaintiff appealed Poon Dep J’s decision in CACV 247/2003.

Appeals before Court of Appeal

13.  CACV 19/2003 (the appeal from Sakhrani J’s decision) and CACV 247/2003 (the appeal from Poon Dep J’s decision) were heard together by this court on 7 May 2004.

14.  For reasons set out in the judgment dated 7 September 2004, this court allowed the appeal in CACV 247/2003 (i.e. the Plaintiff’s appeal from Poon Dep J’s strike-out decision). 

15.  As for CACV 19/2003 (i.e. the Plaintiff’s appeal from Sakhrani J’s decision), the appeal was dismissed for the reasons set out in paragraphs 56-57.

Motion for leave to appeal to CFA

16.  By a notice of motion dated 4 October 2004 but filed on 9 October 2004, the Plaintiff sought leave to appeal our decision in CACV 19/2003 (i.e. the appeal from Sakhrani J’s decision).

17.  That Notice of Motion was filed out of time as s.24(2) Hong Kong Court of Final Appeal Ordinance Cap. 484 provides that the notice of motion should be filed within 28 days from the date of the judgment to be appealed from, not from the date of sealing of the judgment (unlike Order 59 rule 4(1) of the Rules of the High Court).  However no point was taken by counsel for the Defendant on the delay, and since it was a relatively short delay, I did not consider it of any significance. 

18.  What was of relevance was that our judgment in CACV 19/2003 was an interlocutory appeal, and s.22(1)(b) Hong Kong Court of Final Appeal Ordinance provides:

"(1) An appeal shall lie to the Court [of Final Appeal] –

(a)...

(b) at the discretion of the Court of Appeal or the Court [of Final Appeal], from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court [of Final Appeal] for decision".

19.  At the hearing before us, this court sought to explain to the Plaintiff that he is now able to seek discovery, etc. since the strike-out decision has been overturned.  The Plaintiff nevertheless contended that he wished to appeal Sakhrani J’s decision to the Court of Final Appeal because that decision had cost him delay in the pursuit of discovery, etc.

20.  The Plaintiff submitted that there was a question of great general or public importance involved in the proposed appeal, which he formulated thus:

"Does a witness of the ICAC or the judiciary deserve to be subject to such a long period (nearly 7 years) of criminal harassment, false allegation, false light suspicion and unfounded investigation?"   

21.  In my view, such a question is not engaged at all in the proposed appeal.  The matter before Sakhrani J was simply whether steps subsequent to the close of pleadings such as discovery, etc. should be taken when the fate of the statement of claim, in the face of a strike-out application, had not been determined.

22.  There was no other ground for giving leave under s.22(1)(b).  Our judgment in CACV 19/2003 was given in an appeal from a decision made in the exercise of the judge’s discretion, when there was nothing to indicate that he had erred in law, or had misapprehended the facts, or that his exercise of discretion could be challenged on any other ground.

23.  By reason of the above, I dismissed the notice of motion.  Having heard the parties on costs, I considered that the notice of motion was entirely misconceived and warranted the award of costs on an indemnity basis.  Counsel for the Defendant sought a gross sum order in the sum of $28,000 which he indicated was the amount of counsel’s brief only.  Having taken into account the simplicity of the matter, I awarded costs in the gross sum of $20,000.

Hon A. Cheung J:

24.  I agree.