LEUNG SO HUNG SIEM v. CARSON WEN

CACV 251/2020, CACV 542/2020 & CAMP 34/2021
(Heard together)

[2022] HKCA 1228

CACV 251/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2020

(ON APPEAL FROM HCB NO 4036 OF 2018)

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CACV 542/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 542 OF 2020

(ON APPEAL FROM HCAL NO 1806 OF 2020)

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CAMP 34/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 34 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1806 OF 2020)

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DECISION

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Hon Anthony Chan J (giving the Decision of the Court) :

1.  These are the Applicant’s Notices of Motion for leave to appeal to the Court of Final Appeal against the judgment of this Court dated 15 February 2022 ([2022] HKCA 196) (“Judgment”). In the Judgment, (1) the Applicant’s appeal against a bankruptcy order dated 11 June 2020 (CACV 251/2020); (2) her appeal against a decision refusing leave to apply for judicial review of the judgment by which the bankruptcy order was made (“Leave Decision”) (CACV 542/2020); and (3) her extension of time application to serve a notice of appeal against the Leave Decision (CAMP 34/2021) were all dismissed.

2.  The Notices of Motion are identical in contents and filed on 19 April 2022.  Pursuant to section 24(2) of the Court of Final Appeal Ordinance, Cap 484 (“Ordinance”), the Notices of Motion were required to be filed within 28 days from the date of the Judgment.  They should have been filed on 12 April 2022 upon the re-opening of the Court’s Registry.  They are out of time.

3.  The Applicant lodged her skeleton submissions on 3 May 2022[1] in support of the Notices of Motion.  Having considered the submissions, we agree with the directions of the Registrar of Civil Appeal dated 22 April 2022 (§§4 and 10), that these Notices of Motion should be heard together and determined on paper only without an oral hearing.

4.  Under section 22(1)(b) of the Ordinance, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or Court of Final Appeal, from any judgment of the Court of Appeal, if 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.

5.  Section 24(5) of the Ordinance provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.  It is trite that one of the important considerations whether an extension of time should be granted is the merits of the proposed appeal.  Unless there are merits in the proposed appeal, it is futile to grant an extension of time.

6.  Regrettably, neither the Notices of Motion (14 pages in length for each), nor the skeleton submissions of the Applicant (10 pages) is intelligible.  No attempt had been made in either document to identify the question fit for the consideration of the Court of Final Appeal. 

7.  Doing the best we can, there seems to be two particular complaints in the Applicant’s materials.  Firstly, she is dissatisfied with the dismissal of her applications to adduce “new evidence” for her appeals before this Court (see Judgment, §§24-28).  However, no intelligible reason can be discerned from the Applicant’s materials as to why this Court was wrong or what question of great general or public importance there is in respect of this issue.

8.  Secondly, the Applicant contends that she was entitled to charge at the rate of US$9,500 per hour under a commission agreement and that rate should be applied to her costs entitlement against Mr Wen[2], which could be relied upon to set-off against the Statutory Demand on which her bankruptcy was based (see Judgment, §§29-30).  The contention is badly misconceived.  The Applicant had no valid claim against Mr Wen based on the commission agreement (see Judgment, §33).  Further, it is inconceivable that the costs order arising from a minor amendment would entitle the Applicant to an extravagant hourly rate. 

9.  There is no merit in these applications, nor any ground to grant an extension of time to the Applicant.  Accordingly, the Notices of Motion are dismissed with costs to Mr Wen.