PANG KA LEONG v. CHEUNG MEI PO

DCMP 2083/2017

[2019] HKDC 1018

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2083 OF 2017

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JUDGMENT

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1.  On 16 May 2019, I granted the plaintiff’s application for an order under the Partition Ordinance, Cap 352 for the sale of the Property[1] (“the Judgment”).

2.  By a Notice of Motion, the defendant has applied for leave to appeal and stay of execution pending appeal.

3.  Today, Mr Lee for the plaintiff takes two preliminary objections.  He submits that there is no proper application and the appeal is, in any event, groundless. 

4.  Mr Lok for the defendant does not dispute the fact that the application was not made in accordance with the prescribed procedure.  He explains that the defendant instructed his firm to appeal after learning of the Judgment but failed to give further instruction to prepare a supporting affidavit and has since become uncontactable.  He asks for an adjournment to try to locate the defendant.

5.  The plaintiff opposes any adjournment.  Mr Lee submits that enforcement of the Judgment would be delayed by an adjournment and the plaintiff would suffer prejudice.

6.  The defendant’s solicitors have tried but failed to locate the defendant.  There is no assurance that any adjournment would be fruitful.  On the other hand, the plaintiff would be prejudiced by an adjournment.  In the premises, I agree with Mr Lee that no adjournment should be granted.

7.  The combined effect of sections 63 and 65 of the District Court Ordinance, Cap 336 (“DCO”) is that leave is generally required to appeal a civil judgment of the District Court to the Court of Appeal and the appeal must be brought in the manner prescribed by the Rules of the High Court, Cap 4A (“RHC”).  Pursuant to Order 59, rule 1(2) and 2A of the RHC, an application for leave must be made by summons supported by a statement setting out the reasons why leave should be granted.

8.  The defendant’s application was not made by summons.  No ground of appeal was stated therein or attached thereto, or served thereafter.  Even if one were to treat the application as if it were made by summons, there is nothing in the papers to show what the intended grounds are and on what basis the defendant contends that her appeal has a reasonable prospect of success or that there is reason in the interests of justice why the appeal should be heard as provided in section 63A of the DCO.  In Park Lomen Inn Limited v Appeal Board (Hotel and Guesthouse Accommodation), unreported, CACV 171/2015, 16 December 2015, the Court of Appeal said (at para 16):-

“There cannot be a proper application for leave to appeal without setting out the grounds of the intended appeal and the proper formulation of questions for the court’s consideration as to whether they satisfy [the relevant test]”.

9.  Turning to the application for a stay, the existence of an arguable appeal is the minimum requirement before a court would even consider granting a stay: Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at para 9(6).  In the present case, no stay should be granted as I am not convinced there exist arguable grounds of appeal.

10.  The defendant’s applications for leave to appeal and stay of execution are therefore dismissed.

11.  The plaintiff has asked for indemnity costs.  Mr Lee has referred me to Lau Tin Cheung v Tianjin Development Holdings Ltd, unreported, HCMP 1018/2015, 27 May 2015 in which the Court of Appeal reiterated that:-

“This court adopts a robust attitude towards hopeless applications for leave to appeal as it is a diversion of valuable judicial resources which could usefully be spent on other cases. In line with the spirit of the Civil Justice Reform, unmeritorious applicants in these applications will usually face orders for costs on indemnity bases…”.

12.  I order the defendant to pay the costs of the plaintiff in this application on indemnity basis with certificate for counsel, summarily assessed at $19,000.