HUANG HSIN YANG v. BANK OF CHINA (HONG KONG) LTD

HCMP 1340/2006

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS no. 1340 of 2006

(on AN INTENDED appeal from hcsd NO. 3 of 2005)

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D E C I S I O N

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Hon Rogers VP:

1.  This is an application for leave to appeal out of time from a decision of DHCJ L Chan given on 5 June 2006.

2.  The matter in respect of which leave to appeal is sought is the order by which the judge ordered four interrogatories to be withdrawn.  The hearing of the substantive application, which was to set aside a statutory demand, had a chequered history and, at the moment, the hearing below proper is taking its course.

3.  There was a preliminary hearing on 1 February followed by the first hearing on 13 February.  That was adjourned to 31 March.  Shortly before 31 March, the applicant applied for leave to file a further affirmation and that was allowed at a hearing on 22 March and the hearing of 31 March was adjourned.  The next hearing was fixed then for 23 June.  As the judge recorded, the interrogatories were then served on 17 May and that, of course, was some time after the previous hearings.

4.  The judge ordered the interrogatories to be withdrawn because he said that that would disrupt the hearing of 23 June.  That hearing went ahead.  The proceedings to set aside the statutory demand were not concluded on that day because the applicant’s counsel had not finished his submissions, let alone the respondents having a chance to argue.

5.  However, the matter sought to be appealed now is a matter of case management.  It is up to the judge to decide how he is going to run the case and if evidence, or in this case interrogatories, is proffered late, it is up to him to decide whether it is going to be permitted or not.  If he refuses to allow interrogatories to be administered and, at the end of the day, the applicant can show that they should have been administered, there may be something on which they can appeal.  But now the matter has been decided; it is in the judge’s hands, and this court does not interfere with case-management decisions at this stage but waits to look at the overall result to see whether the judge has come to the right conclusion and whether he has relied upon the right facts.

6.  In my view, although the delay in this case in filing the notice of appeal was only one day and, therefore, minimal, it would be wrong in this instance to allow an appeal which would interfere with the way the judge is now handling the matter.  The matter must be left to the judge to proceed with it as he sees fit.