LEE CHICK CHOI v. SOCIETY OF WINE EDUCATORS - HONG KONG CHAPTER AND ANOTHER

HCMP 1203/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1203 OF 2013

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DECISION

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1. These originating proceedings have given rise to various interlocutory applications, including the one by way of the plaintiff’s summons dated 19 August 2013 (“the Summons”). This is the plaintiff’s application for leave to appeal against my decision in respect of the Summons.

BACKGROUND

2. By the Summons, the plaintiff applies for leave:

(1)  to “replace” the 1^st defendant by 2 other persons; and

(2)  to expunge certain parts of the 2^nd defendant’s 2 affirmations that refer to his wife, Yuen Oi Yee Lisa (“Yuen”).

3. By the hearing before me on 2 September 2013, the originating summons has been scheduled to be heard on 10 September 2013.  The application by the defendants to strike out the plaintiff’s claim has also been directed to be heard at the same time.  The affirmations referred to in the Summons were filed pursuant to the direction of the court.

4. At the end of the hearing of the Summons, I dismissed the plaintiff’s application with costs summarily assessed at HK$25,876, payable in 14 days.  I gave my written reasons on the following day.

5. The plaintiff filed his summons for leave to appeal on 13 September 2013[1].

6. After hearing the parties on 10 September 2013, DHCJ Whitehead SC found that the plaintiff’s claim was both frivolous and vexatious and was otherwise an abuse of the process of the court; and the same was thus struck out.

THE PRESENT APPLICATION

7. The plaintiff was absent from the present hearing.

8. Leave to appeal shall not be given unless the applicant can show that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

9. As far as the exercise of discretion, such as that as to costs, is concerned, the appellate court will not lightly interfere unless it is clear that the court failed to exercise the discretion; or has taken into account irrelevant considerations; or has failed to take into account relevant considerations in the exercise of the discretion.

10. According to his affirmation filed in support of the present application, the plaintiff seeks leave to appeal in respect of:

(1)  my dismissal of his application to expunge certain parts of the 2^nd defendant’s affirmations that referred to Yuen; and

(2)  my costs order.

11. As far as (1) above is concerned, the plaintiff argued that DHCJ Whitehead SC in his judgment did not specifically refer to the part of the 2^nd defendant’s affidavit evidence which he has sought to expunge.  This, he argued, proves his contention that such evidence was irrelevant and therefore it was wrong for me to dismiss his application to have those parts of the 2^nd defendant’s affirmations expunged.

12. I disagree.

13. I need not repeat the discussion in my written reasons dated 3 September 2013 (at §19) in this respect.  I then specifically pointed out that how the affidavit evidence would be assessed would be a matter for the judge hearing the originating summons and the striking out application on 10 September 2013.  That DHCJ Whitehead SC in his judgment might not have expressly referred to any specific part of the affidavit evidence does not reflect that that he considered the same to be irrelevant.  On the contrary, the learned deputy judge must be taken to have considered all the evidence before him, including the affirmations filed by the 2^nd defendant[2], in arriving at his conclusion.

14. I see no merit in the intended appeal in respect of (1) above.

15. As to (2) above, this is appeal against my discretion as to costs.  I then saw no reason why costs should not follow the event of the plaintiff’s application.  I maintain that.

16. The plaintiff complained that he has not received all the materials and hearing bundle from the defendants before the hearing on 2 September 2013.  He complained the documents have been sent by registered instead of ordinary post.  Then he and Yuen were too busy to collect the documents from the post office.  He argued that for such reason, I should have ordered that the parties should bear their own costs of the hearing.

17. I disagree.

18. To begin with, the plaintiff, as the applying party, should have been under the duty to compile and to serve the hearing bundle and written submission as a start (in the normal course of events).  Even assuming that the defendants have assumed such responsibility (because the plaintiff acts in person), the plaintiff had the duty to specify his address for service but never the liberty to dictate the mode of service.  For the court documents and the hearing bundle, service by ordinary or registered post to or by leaving at the plaintiff’s address would have been acceptable.  Whether and how the plaintiff would attend to the receipt of them was entirely a matter of his concern.  That he was allegedly too busy to do so was entirely circumstance of his own making, for which no one else should be held responsible.

19. I am not convinced that the appellate court will see fit to interfere with such discretion in the circumstances.

20. Further, upon the judgment of DHCJ Whitehead SC on 10 September 2013, the substantive dispute between the parties was brought to an end.  I understand that the plaintiff has taken the judgment on appeal on costs, which was also dismissed by the Court of Appeal.

21. Whether or not this explains the plaintiff’s lack of intention to proceed with the present application, he was not entitled to just leave it at that without an inter partes application to withdraw and to vacate the hearing, if possible. 

CONCLUSION

22. I must therefore dismiss the application with costs to the defendants, summarily assessed at HK$12,000 and payable by the plaintiff in 14 days.