LO KING YEUNG v. CHENG CHUNG TAI

CAMP 18/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 482 of 2017)

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AND

CAMP 19/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 19 OF 2017

(ON AN INTENDED 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.  We have before us two applications for leave to appeal against the decisions of Au J on 31 July 2017 in respect of HCMP 482 of 2017 and HCMP 483 of 2017. By those decisions, the learned judge refused to extend time for payment of security. Those proceedings remain stayed pursuant to Section 73(5) of the Legislative Council Ordinance， Cap 542 [“LCO”].

2.  The Plaintiff applied for directions as to the requirement of leave to appeal and sought leave if it was held to be necessary.  On 24 August 2017, Au J held that leave was necessary and refused to grant leave.

3.  By two summonses issued on 30 August 2017, the Plaintiff renewed the applications for leave before this Court.

4.  As held by Au J, the applications are governed by Section 14AA of the High Court Ordinance and leave should not be granted unless we are satisfied that the appeals have reasonable prospect of success or there is some other reason in the interests of justice why the appeals should be heard: see Section 14AA(4). 

5.  In this connection, though Mr Ma (appearing together with Mr Ting for the Plaintiff) contended that the appeals fall within the scope of Order 59 Rule 21(a) and as such leave is not required, we agree with the ruling of Au J that the decisions to refuse an extension of time to pay security are not determinations of the substantive rights.  We also respectfully agree with the reasoning of the judge at [13] to [16] of the Decision of 24 August 2017.

6.  We reject Mr Ma’s submission that the orders of 31 July 2017 were analogous to the striking out of the Plaintiff’s cases for want of prosecution.  Au J did not strike out the proceedings.  The judge only declined to give directions for payment of security out of time.  The stay of the proceedings is not occasioned by the orders of Au J.  It is prescribed by statute under Section 73(5) of the LCO.  The inability of the Plaintiff to proceed with the case was due to his own delay in making applications for directions to pay security and the effect of that statutory provision instead of the orders of 31 July 2017.

7.  The decisions of Au J on 31 July 2017 involve the exercise of discretion.  This Court will not interfere with such exercise of discretion unless the judge made errors of principle or exercised his discretion in a manner which is plainly wrong. 

8.  We are not satisfied that there is any reasonably arguable ground calling for this Court’s interference with Au J’s decisions of 31 July 2017.  In the draft Notices of Appeal, Mr Ma contended that the judge erred in failing to take into account some relevant matters. However, counsel accepted that at the hearing on 26 July 2017 he focused his arguments on the question of delay and the explanation for the same.  Mr Ma also accepted in his supplemental submissions attached to a letter of 13 September 2017 from the solicitors for the Plaintiff that a new constitutional point raised in the draft Notices of Appeal which had not been argued before the judge in July 2017.

9.  Thus, it would appear that these matters which are now said to be relevant were not explicitly canvassed by counsel at that hearing.

10.  The judgment of Au J of 31 July 2017 should therefore be read in such context.  Whilst it is correct that the judgment addressed principally the time limit for making the applications for directions to pay security and lack of excuse for the delay on the part of the Plaintiff, it was so structured due to the arguments advanced by Mr Ma before the judge. 

11.  We cannot accept the submission of Mr Ma that the Plaintiff omitted to address other arguments before the judge because he somehow felt constrained by the letters from the court calling for the hearing on 26 July 2017 and the listing of such hearing for 30 minutes only.  We are informed by Mr Tam (appearing for Mr Chu) that the hearing actually lasted for more than 30 minutes.  It was clear to the parties and counsel that the scope of the hearing was not confined to the construction of section 73(5).  All the parties were aware that the hearing would also deal with the applications for extension of time to seek directions for payment of security.  Hence, evidence had been filed to address the delay and submissions were made for excusing the delay. Au J also referred to authorities on extension of time at [23] and [24] footnote 3.

12.  Irrespective of the terms of the letters from the court, counsel who sought an extension on behalf of his client should have adverted to all relevant matters in support of the application at the hearing.  If counsel did not refer to a matter, it can hardly be a ground for complaint that the judge made no explicit reference to the same in his judgment. 

13.  In any event, we are not satisfied that Au J failed to take account of the matters set out at para 1(1) and (2)(c), (f), (g), (h) and (i) of the draft Notices of Appeal.  Those matters must have been obvious to everybody involved.  It is plain to us that the judge did not feel obliged to refer to the same explicitly simply due to the manner in which Mr Ma advanced his submissions at the hearing of 26 July 2017.

14.  In our view, the matters set out at para (2)(d) and (e) in the draft Notices of Appeal are of little moment as they could not arguably have any bearing on the Plaintiff’s duty to proceed with these cases expeditiously and the consideration as to whether extension should be granted. 

15.  We are also in agreement with the judge for rejecting these grounds as reasonably arguable at [20] to [23] of the Decision of 24 August 2017.

16.  We cannot see any new constitutional point.  We agree with Au J that it was simply a matter of application of principles discussed in earlier cases to the specific factual circumstances of these cases.  Dressing it up as a “new constitutional point” cannot provide a valid basis for exercise of discretion in favour of the Plaintiff.

17.  In our view, the intended appeals are completely devoid of merit.  The Plaintiff has failed to satisfy us as to the requirements in Section 14AA(4).

18.  For these reasons, we dismiss the summonses of the Plaintiff.

19.  Mr Tam put in a statement of opposition on behalf of Mr Chu.  We order the Plaintiff to pay the costs of Mr Chu in CAMP 18 of 2017.  Having considered the statement of costs of Mr Chu, we fix such costs at $79,210.

20.  As said, the applications are totally without merit.  Pursuant to Order 59 Rule 2A(8), we further order that no party may request our determination herein be reconsidered at an oral hearing inter partes. 

21.  In the absence of leave, appeals brought by the Plaintiff in CACV 192 and 193 of 2017 are incompetent.  Unless the Plaintiff advances written submissions otherwise within 7 days from the handing down of this judgment, those appeals would be struck out without further notice.