LING DAIHONG v. 汪裕祖

HCA 1007/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1007 OF 2011

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J U D G M E N T

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1.  The matter before me today is the hearing of a notice of appeal by the notice dated 5 September 2012 issued by the defendant.  By that notice, the defendant intends to appeal against a decision of Master Ng given on 30 March 2012 ordering summary judgment against the defendant.

2.  The appeal was also against the order of Master Ng on the same day dismissing the summons to amend the defence and counterclaim. 

3.  The plaintiff applies to strike out the notice of appeal dated 5 September 2012.  I have decided that this matter should be dealt with as a preliminary matter. 

4.  It is plain to me that the defendant has already previously appealed against the order of Master Ng by his notice of appeal dated 12 July 2012.  The hearing of that appeal took place before Mimmie Chan J. on 23 August 2012.  By her order dated 23 August 2012, she ordered that the defendant’s appeal be dismissed with costs to the plaintiff. The order of Mimmie Chan J. was sealed and perfected on 28 August 2012.

5.  The defendant has also issued a notice of appeal under CACV198/2012.  By that notice of appeal dated 7 September 2012, the defendant gave notice that he wished to appeal to the Court of Appeal against the order of Mimmie Chan J. made on 23 August 2012.  The notice of setting down that appeal was given on 7 September 2012.  The appeal to the Court of Appeal is yet to be heard.

6.  I am satisfied that the court has an inherent jurisdiction to strike out a notice of appeal from a master in chambers to a judge in chambers in clear and obvious cases.

7.  The defendant confirmed to me this morning that he still wishes to proceed with the notice of appeal issued on 5 September 2012.  As I have said, the order of Mimmie Chan J. has been sealed and perfected.  That order can only be reviewed by the Court of Appeal and not by another judge of the Court of First Instance.  To still proceed with the notice of appeal before me today is, in my view, an abuse of the process of the court.

8.  I am satisfied that this is a clear and obvious case for striking out the notice of appeal before me.  I make an order that the notice of appeal dated 5 September 2012 be struck out.

(Submissions on costs)

9.  I am satisfied that costs should follow the event.  I give costs of today’s hearing to the plaintiff.  I am also satisfied that costs should be on an indemnity basis since the notice of appeal has been struck out on the ground that it is an abuse of the process of the court.  I will make an order that the costs of today be costs to the plaintiff, such costs to be taxed on an indemnity basis if not agreed.