OLENA PONOMAROVA v. NORTHCROFT HONG KONG LTD

CAMP 314/2023, [2024] HKCA 148

On An Intended Appeal From [2023] HKCFI 956 &

[2023] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 314 OF 2023

(ON AN INTENDED APPEAL FROM HCA NO 156 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Plaintiff’s summons dated 19 September 2023  for leave to appeal against the order of Wilson Chan J dated 5 September 2023 (“the September Order”), whereby the Judge rejected the Plaintiff’s application for leave to appeal against an earlier order of the Judge dated 13 April 2023 (“the April Order”) allowing the Defendant’s appeal against the order of Master D To dated 30 December 2022 and granting the Defendant’s application for security for costs of the action against the Plaintiff.

2.  As a matter of procedure, following the Judge’s refusal to grant leave to appeal against the April Order, the Plaintiff ought to have made a further application to the Court of Appeal for leave to appeal against the April Order pursuant to Order 59, rule 2B(3) of the Rules of the High Court (Cap 4A), instead of seeking leave to appeal against the September Order. In view of the fact that the Plaintiff is unrepresented, we shall treat the Plaintiff’s summons as her further application for leave to appeal against the April Order.

3.  The basic facts of this case and the Judge’s reasons for making the April Order are set out in his written judgment dated 13 April 2023 (“the Judgment”), and will not be repeated here.

4.  Having considered the papers before us, we consider that it is appropriate to deal with the present application on the basis of written submissions only without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court, notwithstanding the Plaintiff’s request for an oral hearing should the Court be minded to deny her application.

DISCUSSION

5.  The test for granting leave to appeal against an interlocutory order of the Court of First Instance, and the Court of Appeal’s approach in an appeal against an exercise of discretion by a judge at first instance concerning security for costs, are well settled.

6.  In respect of the former, under s 14AA(4) of the High Court Ordinance (Cap 4), leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. For this purpose, reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable”, and therefore more than “fanciful”, without having to be “probable”.

7.  In respect of the latter, the Court of Appeal will not lightly interfere with a discretionary decision unless the decision proceeded from some error of principle, or reliance on irrelevant considerations, or disregard of relevant considerations, or the decision is plainly wrong.

8.  In the Plaintiff’s summons dated 19 September 2023, she raises the following 8 grounds of appeal:

(1)  plagiarism on the part of the Judge;

(2)  lack of diligence, impartiality, independence and/or propriety in the performance of duties on the part of the Judge;

(3)  wrongly allowing the Defendant to re-argue the application for security for costs which had been rejected by the Master under the guise of an appeal;

(4)  violation of due process;

(5)  the Judge’s exercise of discretion was in disregard of principles and procedures consistent with a fair process, and under a miscomprehension as to the facts; he took into account irrelevant matters, and failed to take into account relevant matters; and the conclusion which he reached was outside the generous ambit within which a reasonable disagreement is possible;

(6)  failure to give consideration to the complexity and relation of 2 court cases, namely, HCA 156/2022 and HCA 258/2023;

(7)  failure to assess whether there were circumstances which would make it unjust to order the Plaintiff to give security for costs; and

(8)  the Judge erred in fact when analysing the strength of the Plaintiff’s case and the Defendant’s defence.

9.  In respect of Ground (1), we have read the Judgment and compared it with the Skeleton Submissions of the Defendant dated 28 March 2023 (“the Defendant’s Submissions”). We have also considered the instances of plagiarism alleged in paragraph 1 of the Plaintiff’s Statement in Support of Leave Application to Appeal dated 17 November 2023 (“the Plaintiff’s Statement”). The Judgment is a short one, consisting of 14 paragraphs in 6 pages, under the following sub-headings:

(1)  “Introduction” – paragraphs 1 to 3;

(2)  “Background” – paragraphs 4 to 6;

(3)  “Relevant Legal Principles” – paragraphs 7 to 8;

(4)  “Discussion” – paragraphs 9 to 13; and

(5)  “Conclusion” – paragraph 14.

10.  There is no substance in the Plaintiff’s allegation of plagiarism insofar as they relate to matters set out by the Judge under the sub-headings “Introduction” and “Background”. Those matters do not relate to the essential reasoning of the Judge in his decision. Insofar as the “Relevant Legal Principles” section is concerned, the principles stated by the Judge are well-established, and are based on legal authorities which have been clearly identified by the Judge. The “Discussion” section (consisting of 5 paragraphs) sets out the Judge’s reasoning for his decision and is substantially different from the “Analysis” section in the Defendant’s Submission (consisting of 12 paragraphs). In particular, the Judge only briefly dealt with the merits of the Plaintiff’s claim, when compared to the Defendant’s Submissions. Lastly, the “Conclusion” section merely sets out the order made by the Judge. Overall, we do not consider the Plaintiff’s complaint of plagiarism by the judge is justified. Ground (1) is rejected.

11.  Grounds (2), (4) and (5) are bare allegations, and have no basis or foundation. At paragraph 2b of the Plaintiff’s Statement, she alleges that the 6-page decision of the Judge displays actual bias against the Plaintiff and favouritism towards the Defendant, as evidenced by the summary of the Defendant’s case in paragraph 6 and the omission of the Plaintiff’s case. This complaint is totally unjustified. The Judge set out the Plaintiff’s claim at paragraph 5, and a summary of the Defendant’s case at paragraph 6, of the Judgment. The Judge did not examine the merits of either the Plaintiff’s claim or the Defendant’s defence in any detail, or come to any conclusion on the merits of the case. We do not see how the Judgment can reasonably be read as displaying any bias against the Plaintiff or favouritism towards the Defendant.

12.  Ground (3) is based on a misunderstanding of the nature of the appeal process. An appeal from any judgment, order or decision of a master under Order 58, rule 1 of the Rules of the High Court is dealt with by way of an actual rehearing of the application which led to the judgment, order or decision under appeal (see Hong Kong Civil Procedure 2024, paragraph 58/1/2). Plainly, the Defendant was entitled to re-argue the application before the Judge in its appeal against Master D To’s order.

13.  Insofar as Ground (6) is concerned, while the two cases (HCA 156/2022 and HCA 258/2023) may share a common background and some of the issues raised in them may be related, they remain 2 separate actions. We see no reason why the Judge should give consideration to the “complexity and relation of the two court cases between the same parties” as contended by the Plaintiff when determining the Defendant’s application for security for costs in HCA 156/2022.

14.  In respect of Ground (7), the only possible injustice arising from making an order of security for costs against the Plaintiff is that it might stifle the Plaintiff’s claim. However, as pointed out by the Judge at paragraph 13 of the Judgment, there was no evidence before him that the Plaintiff’s claim would be stifled. At paragraph 5 of the Plaintiff’s Affidavit filed on 27 March 2023 in opposition to the Defendant’s appeal against Master D To’s order, she stated that prior to the hearing before the Master, she did not know that she was supposed to provide additional evidence on the scarcity of her financial resources and potential sources for putting money into court as security, and thus she “chose not to ask for leave to file an Affidavit and supporting evidence (my bank statements from active accounts for 12 months for instance), because one way or another the Defendant would succeed in wasting my scarce resources due to delays”[1]. Apparently, the Plaintiff applied to put in an affidavit before the Judge at the hearing of the appeal, but the application was refused by the Judge[2]. In this regard, it is of note that under Order 58, rule 1(5) of the Rules of the High Court, no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under that rule except on “special grounds”, which requires the conditions laid down in Ladd v Marshall to be satisfied (see Hong Kong Civil Procedure 2024, paragraph 58/1/3). Since there has not been any appeal against the Judge’s order to refuse to receive the Plaintiff’s proposed further evidence, it is not necessary to consider whether the Judge was correct not to do so. The burden is on the Plaintiff to show that her claim would be stifled by an order for security for costs made against her. In the absence of any relevant admissible evidence, the Judge cannot be faulted for not taking into account the possibility that the Plaintiff’s claim might by stifled by an order for security for costs.

15.  In respect of Ground (8), it is well established that when considering an application for security for costs, the Court should not examine in detail the merits of the case save in simple cases where the merits can be clearly demonstrated one way or another that there is a high degree of probability of success or failure (see Hong Kong Civil Procedure 2024, paragraph 23/3/3, at page 667). In the present case, the Judge, having considered the submissions of both parties, came to the view that the Plaintiff had failed to show that she had a high probability of success in establishing her case that there was an unlawful termination of her employment contract by the Defendant[3]. The Judge was entitled to come to that view, which cannot be said to be plainly wrong.

16.  In all, Grounds (1) to (8) are not reasonably arguable. We are not satisfied that the Plaintiff’s intended appeal has any reasonable prospect of success. Neither do we see that there is any other reason in the interests of justice why the appeal should be heard.

17.  Having reached this conclusion, there would be no basis to grant any stay of execution of the April or September Orders sought by the Plaintiff.

DISPOSITION

18.  The Plaintiff’s summons dated 19 September 2023 is dismissed with costs to the Defendant. In the Defendant’s statement of costs dated 28 September 2023, the Defendant claims costs in the total sum of $83,058.67. Included in that sum are the costs of preparing (i) the 2^nd Affirmation of Kam Sau Chee, and (ii) the statement of costs. In respect of (i), the Registrar of Civil Appeals has directed that it should not be read or considered by the Court of Appeal having regard to paragraphs 8 and 15 of Practice Direction 4.1[4]. In respect of (ii), the costs incurred in preparing a statement of costs are generally not granted in a summary assessment (see paragraph 13 of Practice Direction 14.3). Also, the costs claimed by the Defendant appear to us to be disproportionate, having regard to the simplicity of the Plaintiff’s application. In all the circumstances, the Defendant’s costs are summarily assessed in the sum of $30,000.

19.  Lastly, as the Plaintiff’s application is totally without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the Rules of the High Court.