CHOW SIU YING AND ANOTHER v. WAN LUEN TUNG

DCCJ 6597/2020

[2022] HKDC 222

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6597 OF 2020

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BETWEEN

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DECISION

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1.  This is the 1^st and 2^nd plaintiffs’ application for leave to appeal against the decision of this court out of time.

2.  The plaintiffs’ application for Summary Judgment was dismissed by this court by way of an oral decision during the hearing on 24 September 2021. A written decision based upon the oral decision was handed down on 5 November 2021.

3.  The plaintiffs took out the application to seek leave for appeal on 23 November 2021.

Late application

4.  Order 58 rule 2(4) of the Rules of the District Court an application for leave to appeal must be made within 14 days of the interlocutory decision.

5.  The plaintiffs, in their Third Affirmation, argued that the clock should start at the date of the handing down of the Written Decision in which case the current application was 4 days late.

6.  However, this court gave an oral decision on 24 September 2021. The decision was read out during the hearing along with the order that:

i) The plaintiffs’ application be dismissed; and

ii) The costs of and occasioned by the application be to the defendant summarily assessed at HK$70,000 (including Counsel’s brief of HK$40,000) payable forthwith.

7.  As such, the clock must start on 24 September 2021 and the plaintiffs’ application was therefore 46 days late.

Legal principles

8.  The legal principles on how the court should exercise its discretion to extend time are trite and summarised in Secretary for Justice v Hong Kong & Yaumati Ferry Co. Ltd & Anor [2001] 1 HKC 125.

9.  In short, there should be a balancing exercise taking into account a) the length of the delay, b) the reasons for the delay, c) the chances of success of the appeal if extension of time is granted, d) prejudice to the respondent.

10.  And if the delay is inexcusable, the applicant must show a real (as opposed to “reasonable”) prospect of success on merits.

Length of delay

11.  As stated above, the plaintiffs tried to argue that the clock should start on the date the written Decision was handed down and this is not accepted by the court.

12.  The length of delay was therefore 46 days and was substantial.

The reasons for the delay

13.  The plaintiffs did not raise the argument of making a mistake as to when the clock should start, and so they did not advance any explanation for such.

14.  Instead, the plaintiffs’ counsel, Mr. Conan Tsang, rather surprisingly, raise a new reason for the delay during the hearing. He suggested that the delay was because the plaintiffs wished to wait for the written Decision to see if there were further reasons raised in there (as compared to what the court has orally given during the hearing because “only the lawyers heard it in the court”).

15.  Firstly, such evidence was not raised in the plaintiffs’ affirmation and so Mr. Tsang was giving evidence from the bar which was totally inappropriate.

16.  Secondly, even if the court would entertain such evidence, the plaintiffs’ argument was that they were aware of the time limit, but nevertheless they delayed on purpose because they wanted to read the written Decision.

17.  As such, the delay was clearly inexcusable.

Merit

18.  Mr. Tsang did not submit any skeleton arguments. The grounds of appeal and the arguments were contained in the Summons.

19.  The grounds were, in short, that the Court has erred in:

a) not making a finding in relation to the inherent inconsistency in the pleadings; and

b) not finding the defendant incredible by reason of the illogical arrangement.

20.  As such, these were the same arguments raised in the original application for Summary Judgment, and Mr. Tsang appeared to have simply added the words “the Court has erred” before each in order to put them up as grounds for appeal. He was also quite content to repeat the same arguments again during this hearing.

21.  Of course, all these arguments have been dealt with in the decision. The fact that the plaintiffs did not agree with the court’s decision is not, per se, grounds for appeal. Mr. Tsang should be aware that he would need to raise reasons as to why the Court has erred in either the finding of facts or the application of law instead of rehashing the same arguments to attempt for “a second bite at the cherry”.

22.  Mr. Tsang has also raised new arguments “on the fly”. For example, he suggested that there must be an implied term on the loan agreement that the sum would be returned when the marriage was cancelled.

23.  Without even touching on the merit of these new arguments, the fact that Mr. Tsang has insisted to continue to go down this path was frustrating to this court: perhaps he has misconceptions on the legal principles of summary judgment. As I have stated in paragraph 6 of my written Decision, the court is not here to conduct a mini trial, and Mr. Tsang has repeatedly asked the court to do so.

24.  Putting it simply, it cannot be more self-evident to this court that, from the multiple, complicated and somewhat convoluted arguments raised, this is not a clear-cut case and is therefore totally inappropriate for a summary judgment application in the first place.

25.  As such, I find that the plaintiffs have failed to show any real prospect of success on merit of this appeal.

Argument on the orders of the original application

26.  Mr. Tsang also argued that, in the original application, if the court did not find that the plaintiffs have misused the O.14 procedure, the appropriate order should be that “the defendant be granted unconditional leave to defend” and “costs in the cause” (Greater China Capital Inc v Gbtimes Ltd [2018] 1 HKLRD 210).

27.  The decision of this court in the original application was to dismiss the plaintiffs’ application instead of granting the defendant an unconditional leave to defend. It should be self-evident from the decision (both given orally in court and in the written Decision) that the court took the view that the Plaintiffs have misused the O.14 procedure. If the court did not make that position plain enough before, paragraphs 23 and 24 above spell that out clearly.

Costs

28.  I would dismiss the plaintiffs’ application and award costs to the defendant with certificate for counsel. The defendant shall lodge and serve a summary bill of costs within 14 days of this order and the plaintiffs shall lodge and serve a summary list of objections 14 days thereafter. The costs shall thereafter be summarily assessed by the court on paper.