XCHRX HANG SENG BANK LTD. AND ANOTHER v. LEE YUK MING

CACV 1794/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1794 OF 2001

(ON APPEAL FROM DCMP NO. 1641 OF 2001)

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J U D G M E N T

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1. On 9 July 2001, Judge Wong in the District Court dismissed an ex parte application by the Applicants for leave to apply for an order of committal against the Respondent. The Applicants then applied to Judge Wong for leave to appeal against the dismissal of their application. Judge Wong granted the Plaintiffs leave to appeal.

2. On 28 July, the Applicants' solicitors served a notice of appeal on the Respondent and filed the notice of appeal with the Registrar. In their covering letter to the Respondent, the Applicants' solicitors wrote:

"We take the view that the appeal may be made ex parte as according to the rules, the original application should be an ex parte application. Nevertheless, we are writing to notify you of the position and invite you to seek legal advice on your position."

On 7 August, the Respondent filed grounds of opposition to the appeal. He wishes to make representations at the hearing to the effect that Judge Wong's decision to refuse the Applicants leave to apply for his committal should be upheld. The Deputy Clerk of Court (Appeals) was concerned as to how the appeal should be listed, bearing in mind that the original application to Judge Wong had been made ex parte. The Registrar has now referred the matter to me for directions.

3. The critical issue is whether the Respondent is entitled to appear at the hearing and to make such representations as he wishes, or whether the appeal should proceed by way of an ex parte hearing as the Applicants suggest. Ord. 59 r. 14(3) provides as follows:

"Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal."

If the Applicants' application had been made to the Court of Appeal pursuant to this rule, the Respondent would not have been entitled to attend the hearing or make representations at it. That is because the rule expressly provides for the renewal of the application to be made ex parte. That is not to say that the court could not have invited the Respondent to make representations if it thought that such representations were necessary to enable it to make an informed judgment on the application, but the Respondent would not have had a right to make representations at the hearing.

4. However, the Applicants chose to challenge the order made by Judge Wong, not by renewing their application to the Court of Appeal under Ord. 59 r. 14(3), but by appealing against his order to the Court of Appeal. That was the effect of their service on the Respondent and their filing in the Registry of the notice of appeal. In my opinion, a person served with a notice of appeal (who will have been served, by reason of Ord. 59 r. 3(5), because he was a party to the proceedings in the court below who is directly affected by the appeal) is entitled to attend the hearing of the appeal and to make such representations as he wishes, unless there is a rule preventing him from doing so. No such rule exists, and there is therefore no basis on which the Respondent can be prevented from making such representations on the appeal as he chooses. Accordingly, I direct that the Respondent may attend the hearing of the appeal and may make such representations at it as he chooses.