MAK NGUN TAI AND OTHERS v. FUNG MING IP AND OTHERS

HCMP 197/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 197 OF 2017

(ON AN INTENDED APPEAL FROM HCAP NO 37 of 2015)

________________________

BETWEEN

________________________

_______________

JUDGMENT

_______________

Hon Lam VP (giving the Judgment of the Court):

1.  Pursuant to the direction in our judgment of 13 March 2017, counsel for the Plaintiffs indicated in a statement of 15 March 2017 the position of his clients. The Plaintiffs contended that the 2^nd Defendant was not neutral in the APL application notwithstanding what was said at para 8 of the written submissions of Mr Lai of 25 August 2016. Hence the Plaintiffs are not willing to provide the undertaking suggested in our judgment of 13 March 2017.

2.  Having considered the matters set out in the statement of 15 March 2017, on the limited materials before us, we are of the view that there is a reasonable prospect of success in the appeal by the 2^nd Defendant.

3.  We therefore grant leave to appeal to the 2^nd Defendant.

4.  Since we have dismissed the 1^st Defendant’s application for leave, he shall bear his own costs in the application.  As for the costs of the 2^nd Defendant and the costs of the Plaintiffs in the preparation of the statement of 15 March 2017, they shall be costs in the cause of the appeal.

5.  Given the very narrow compass of the appeal, viz the only issue is whether the 2^nd Defendant adopted a neutral position in the APL application (she might have adopted different stance at different stages and the position at the hearing before the Recorder might have changed), we invite the parties to consider whether they would agree to have the appeal processed on papers as it would be more costs effective and proportionate.  If they are agreeable to such a course, they should submit draft directions for such purpose for the approval of the Court within 7 days after the service of the Notice of Appeal on behalf of the 2^nd Defendant.  In view of the dispute, transcript of the hearing should be obtained and counsel should refer to the relevant parts of the transcript in their skeleton submissions.