HCA 391/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 391 OF 2006
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BETWEEN
HO YUEN KI WINNIE
1st Plaintiff
MOON VALLEY FOUNDATION LIMITED
2nd Plaintiff
and
HO HUNG SUN STANLEY
1st Defendant
SOCIEDADE DE TURISMO E DIVERSOES DE MACAU, S.A.
2nd Defendant
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Before: Hon A Cheung J in Chambers
Date of Hearing: 25 May 2009
Date of Judgment: 25 May 2009
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J U D G M E N T
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1. Under the new section 14AA of the High Court Ordinance (Cap 4), an intending appellant has to obtain the leave of the Court of First Instance, or failing which, that of the Court of Appeal, in order to appeal from an order made by the Court of First Instance. Section 14AA(4)(a) provides that no leave shall be granted unless the Court hearing the application for leave is satisfied that the appeal has a reasonable prospect of success.
2. In other words, if the Court is not convinced that there is a reasonable prospect of success, no leave can be granted.
3. But the converse is not true. Even if the Court takes the view that there is a reasonable prospect of success, it still retains a discretion as to whether to grant leave, although the fact that there is, ex hypothesi , a reasonable prospect of success would heavily influence the Court’s exercise of discretion.
4. This is an application for leave to appeal from the order of discovery made by the Court on 29 April 2009. The Court’s reasons for making the order have been set out in the judgment handed down on the same day.
5. I have carefully considered the intended grounds of appeal, including a new point raised for the first time by counsel orally at today’s hearing which has not been argued at the original hearing or mentioned in the summons for leave as an intended ground of appeal.
6. I do not propose to repeat the reasons I gave in my judgment. Suffice it for me to say that I am not convinced that there is a reasonable prospect of success for the reasons already given in my judgement.
7. In any event, even if I were to be of a different view, I bear in mind that the present action was commenced in 2006. The question of discovery first arose in 2008, and the application was not heard until 23 April 2009. Within a week, the Court, doing its best, gave its judgment and made an order for discovery of some but not all of the documents asked for.
8. I take the view that in light of the progress, or more correctly, lack of progress, in the prosecution of the present action – the parties having reached only the stage of discovery and there having been no real advancement of the case made since mid-2008 when the question of discovery first arose, the parties’ efforts would better be directed to the prosecution and defence of the present action. A further round of argument over discovery at the appellate level would not really do the parties any good, on the assumption that both of them want the real disputes between them to be argued at trial and adjudicated by the court as soon as possible.
9. So for those reasons, even if I were of the view that there is a real prospect of success, I would not be minded to grant leave to appeal in the exercise of the Court’s discretion. But I do not rest my decision on that footing.
10. For those reasons, the application for leave is refused.
[Discussion re undertaking]
11. Mr Shieh is, in a sense, correct that there can be no irreparable harm to the Plaintiffs if I were not to grant an interim stay, but I think it is simply right, if the Plaintiffs are definitely seeking leave from the Court of Appeal, that things should be put on hold pending the outcome of that application. I think it is simply fair for a stay to be granted upon the undertaking by counsel for the Plaintiffs to file the application for leave from the Court of Appeal within five days from the date hereof.
12. Stay of the order of discovery until after the final outcome of the Plaintiffs’ intended application to the Court of Appeal for leave to appeal is known, upon the Plaintiffs by counsel undertaking to file and serve such an application within five days from the date hereof.
[Discussion re unless order]
13. No order be made in relation to the application for an unless order which should not be dealt with until after the final outcome of the Plaintiffs’ intended application to the Court of Appeal for leave to appeal is known.
[Submission re costs]
14. Costs to the 1st Defendant with a certificate for two counsel, given the importance of the matter to both parties.
[Submission re gross sum assessment]
15. Costs to the 1st Defendant, assessed at the gross sum of $60,000.
(Andrew Cheung)
Mr Erik Sze-man Shum and Ms Josephine L Y Tjia, instructed by Ho, Tse, Wai & Partners, for the plaintiffs
Mr Paul Shieh SC and Ms Eva Y W Sit, instructed by Herbert Smith, for the 1st defendant