CAMEL TECHNOLOGY (HK) CO LTD v. ROCOM ELECTRIC CO LTD

DCCJ7602/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7602 OF 2002

D E C I S I O N

1.  The plaintiff applies for leave to appeal against my order of 29 September 2005 granting the defendant conditional leave to defend by payment into court of the sum of $310,000 within 14 days with costs.  Counsel for the plaintiff, Mr Ngai, submitted that leave to appeal will normally be granted unless the grounds for leave have no realistic prospect of success. 

2.  The reasons for my decision on 29 September have been clearly set out in my reasons for decision delivered on the same day, I shall not repeat them here.  Those reasons clearly indicated that I have taken into my consideration the background of the plaintiff’s claim and the defence of the defendant.  The order was made after careful consideration of the facts in dispute and the law.  I exercised my discretion, bearing in mind those facts in dispute and the principles of law applicable in making the order.

3.  Mr Ngai in his application for leave today referred to Order 59/1/49 and Order 59/1/50.  Order 59/1/49 stated:

“Appeals against exercise of discretion

There are many authorities for the proposition that an appeal will not be entertained from an order which was within the discretion of the judge to make unless it be shown that he exercised his discretion under a mistake of law or in disregard of principle or that he took into account irrelevant matters or failed to exercise his discretion or the conclusion which the judge reached in the exercise of his discretion was outside the generous ambit within which a reasonable disagreement is possible.  Many of the cases in this area are decisions refusing to interfere with the judge’s discretion in making some interlocutory order.”

4.  After hearing Mr Ngai’s submission and reading his skeleton submission, I fail to see Mr Ngai has shown any grounds indicating that I have wrongly exercised my discretion or that I have applied the wrong principle of law or that I have misunderstood or misapprehended the facts based on which I exercised my discretion such that the Court of Appeal will entertain an appeal and interfere with the discretion exercised. 

5.  Under Order 14/4/44 of the Hong Kong Civil Procedure 2004, page 177, the last paragraph has this to say:

“Where conditional leave to defend is given, however, the Court of Appeal will not interfere with the discretion of the judge unless there has been some error of principle or misapprehension of facts or unless undue weight has been given to a particular aspect of facts.”

6.  I cannot see from Mr Ngai’s submission where it is said that I have wrongly applied my discretion or exercised my discretion under a misapprehension of the facts or have put undue weight on a particular aspect of the facts. 

7.  On the aforesaid basis, I do not see the plaintiff has any realistic prospect of success in the appeal against the order.  I therefore refuse Mr Ngai’s application for leave to appeal.

(Discussion re costs)

8.  No order as to costs.

Mr Lawrence L K Ngai, instructed by Messrs Henry Wan & Yeung, for the Plaintiff

Mr Leung Chung-yan, of Messrs So, Keung, Yip & Sin, for the Defendant