IOF v. BCA

CACV356/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 356 OF 2005

(ON APPEAL FROM FCMC NO. 11752 OF 2004)

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J U D G M E N T

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Hon Chu JA giving the judgment of the court:

1. By Judgment handed down on 25 February 2014 (“the Judgment”), this court dismissed the appeal of the respondent (BCA) for want of prosecution.

2. On 25 March 2014, the respondent filed a Notice of Motion applying for leave to appeal against the Judgment to the Court of Final Appeal. 

3. By letter dated 27 March 2014, the court enquired with the parties whether there is any objection to dealing with the application for leave to appeal on paper. The petitioner did not reply to the letter.[1]

4. The respondent replied by letter dated 2 April 2014.  While he claimedhe was not sure whether he fully understood the court’s letter, the respondent concluded by saying:

“Of course I would like every opportunity to present my application for leave to appeal to the Court of Final Appeal in an efficient manner and if it would mean saving costs without detracting from my arguments then I would think a paper application would suffice.”

5. By letter dated 7 April 2014 , the court informed the respondent that the Court of Appeal may deal with applications for leave to appeal to the Court of Final Appeal on paper without holding an oral hearing, and directed:

“…

3. The Respondent (Appellant) is to confirm to the court by letter by 15 April 2014 whether he objects to his application for leave to appeal to the Court of Final Appeal being dealt with on paper.

4. The Petitioner has not replied to the court’s letter dated 27 March 2014. Hence, if the Respondent (Appellant) does not object to his application being dealt with on paper, the parties shall lodge with the court and serve on the other parties by 30 April 2014 their written arguments on the application.

5.  In the event the Respondent (Appellant) objects to his application being dealt with on paper, the application will be listed for an oral hearing and the court will notify the parties of the hearing date.” 

6. Therespondent has not responded to the court’s directions.[2]  He has raised no objection to disposing of his application on paper.  He has also not lodged any written arguments in support of his application.  In the circumstances, this court will proceed to deal with his application for leave to appeal on paper and on the basis of the grounds set out in the Notice of Motion.  

7. Sections 22(1)(a) and (b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, (“the Ordinance”) which are relevant to the present application, provide that an appeal to the Court of Final Appeal may be brought:

“(a) as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1000000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1000000 or more;”

Or

“(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”.

8. The respondent’s appeal that was dismissed by this court relates to the Family Court’s order made on 21 September 2005 in FCMC 11752/2004 pronouncing a decree nisi and ordering the respondent to pay the costs of the suit.  The Judgment does not come within the terms ofsection 22(1)(a) of the Ordinance.  The respondent cannot appeal to the Court of Final Appeal as of right.

9. With regard to section 22(1)(b), the respondent has set out the following eight grounds in his Notice of Motion:

“1. The Learned Justices erred in concluding that the Appellant had himself solely caused a delay in bringing the Appeal since 2005 and erred in not properly considering, or considering at all delays caused by the Petitioner’s solicitors when they submitted the bill of costs containing a substantial error which caused months of delay and in part caused the allocator’s costs be set aside.

2. The Learned Justices erred in not properly considering time consumed by settlement negotiation by way of setoff with FCMC 8256/2007 that was initiated by the appellant with the Director of Legal Aid.

3. The Learned Justices erred in not properly considering the fact (and injustice caused) that the Appellant had successfully resisted the FCMC 11752/2004 proceedings and a suit costs order made by the family court against the Appellant was contrary to fundamental costs rules and law.

4. The Learned Justices erred in not properly considering time consumed when the Appellant tried to remedy the above injustice by bringing the matter back before the presiding judge in the family court.

5. The Learned Justices erred in not properly considering the fact and delay caused by a sealed rescinded suit costs order being sent to the Appellant and the Appellant’s reasonable assumption that an appeal would no longer be necessary.

6. The Learned Justices erred in concluding that there was an abuse of process since there was or is no apparent injustice to the Petitioner and nor was there any allegation or assertion of injustice caused by the delay by any party.

7. The Learned Justices erred in not properly considering that the last direction given by the Learned Master in the appeal was made on the 7^th May 2013 and that the Appeal Court may have accepted documents on this date had the Appellant actually filed them.

8.   The Learned Justices erred in not properly evaluating the possible injustice and difficulty the Appellant would have if he made a fresh application to the lower court (Family Court) for leave to appeal on the suit costs ground.”   

10. We observe, firstly, that all these grounds are pertaining to the facts in the case below or in theother action between the respondent and the petitioner.  They do not raise any question of great general or public importance.

11. Secondly, we see no merits in the grounds.  The various grounds put forward by the respondent effectively seek to explain his delay in prosecuting the appeal herein by relying on what happened subsequently in FCMC 11752/2004 and also in the other matrimonial action he brought against the petitioner (FCMC 8256/2007).  We have in the Judgment considered the history of the appeal and the subsequent events in FCMC 11752/2004 and also the events in FCMC 8256/2007.  We have concluded that the respondent’s inordinate delay and persistent failure to comply with the court’s directions on the conduct of the appeal was not due to any real difficulty or inability to do so, but is indicative of a lack of genuine intention on the respondent’s part to proceed with the appeal.  

12. We remain of the view that the respondent has no good reason for his delay and non-compliance with the court’s directions.  All the matters he raised at the last hearing before this court and in the Notice of Motion would not have prevented him from complying with the court’s directions and/or proceeding with the appeal.  Neither do they justify the excessive delay and repeated failures in complying with the court’s directions.  The respondent might have his own motive or purpose for stalling the appeal while he dealt with the other proceedings in the two actions, but that is not the same as having a good reason that would excuse his delay and failure. 

13. The respondent complains of injustice caused by the order dated 21 September 2005.  In our view, if the respondent were aggrieved, it would be incumbent upon him to proceed with the appeal diligently and expeditiously.

14. As to the assertion of no apparent injustice or no complaint of injustice, we have in the Judgment pointed out that the proceedings in FCMC 11752/2004 to tax the petitioner’s costs have been put on hold pending the outcome of the appeal.

15. We fail to understand the point made in ground 7 of the Notice of Motion.  The Registrar of Civil Appeals on 7 May 2013 granted the respondent’s request to extend the time for lodging the appeal bundle to 1 June 2013.  As at our hearing on 19 February 2014 and today, no appeal bundle has been lodged by the respondent.

16. In short, we are of the view that there is no basis for exercising the discretion to grant leave to appeal under section 22(1)(b).

17. Accordingly, the application for leave for appeal to the Court of Final Appeal is dismissed.