SINO TRIFONE LTD v. FOND EXPRESS LOGISTICS LTD AND ANOTHER

HCMP 2366/2012 AND HCMP 2367/2012

HCMP 2366/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2366 OF 2012

(ON AN INTENDED APPEAL FROM HCCL NO. 21 OF 2011)

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(Heard together)

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Hon Fok JA (giving the Judgment of the Court):

1.  By notice of motion in each action dated 25 February 2013, the 2^nd defendant applied for leave to appeal to the Court of Final Appeal.

2.  On 22 May 2013, on the hearing of the notices of motion, the Court dismissed the applications and explained the reasons for doing so in its judgment of the same date.

3.  In our judgment, we addressed the position regarding the representation of the 2^nd defendant: it being a company and having had its application for leave to be represented by a director dismissed by the Registrar, the 2^nd defendant was unrepresented and this Court had no jurisdiction to grant such leave.  Therefore, and notwithstanding his request, this Court had no jurisdiction to permit Mr So, the 2^nd defendant’s director, to represent the company.

4.  We also explained, in respect of a request by Mr So for an adjournment, that, even if that request were properly made, we would have declined to grant it for the reasons set out in paragraph 9.

5.  The 2^nd defendant has now applied by summons in each action dated 17 June 2013 for a rehearing of its application for leave to appeal with the attendance of counsel instructed on its behalf.

6.  The basis of the application, as set out in an affidavit of Mr So, is said to be unfairness to the 2^nd defendant since our decision was reached without hearing argument from the 2^nd defendant who wished to be heard.  Mr So exhibits the skeleton argument he says he had prepared for use on the previous occasion.

7.  For the following reasons, we dismiss the applications now before us.

8.  The 2^nd defendant has had its day in court before the Recorder and lost.  It was late in appealing against the Recorder’s judgment.  An application for extension of time to appeal was dismissed.  In dismissing that application, this court applied well-settled principles.

9.  The 2^nd defendant has already made an application for leave to appeal to the Court of Final Appeal. The present request for a second bite of that particular cherry is without merit.  The court has already explained why an application for an adjournment of the hearing on 22 May 2013 would not have been granted: the 2^nd defendant had ample time to instruct solicitors and counsel to represent it at that earlier hearing.

10.  In any event, the application for leave to appeal was itself misconceived and without merit for the reasons given in paragraphs 11 and 12 of our judgment dated 22 May 2013.  To reiterate:

(1) The only decision of this court that the 2^nd defendant could take to the Court of Final Appeal is the decision to refuse an extension of time to appeal;

(2) The questions of law set out in the notices of motion said to arise for the Court of Final Appeal’s determination could only arise if an extension of time to appeal had been granted and the Court of Appeal had decided that underlying substantive appeal against the 2^nd defendant;

(3) Those questions of law simply do not arise from this court’s refusal of an extension of time to appeal.

11.  This remains the case notwithstanding the 2^nd defendant’s belated attempt by summonses dated 25 June 2013 to amend the notices of motion seeking leave to appeal to the Court of Final Appeal.

12.  In short, the suggestion of any unfairness to the 2^nd defendant is totally unfounded.

13.  We therefore dismiss the summons in each action dated 17 June 2013 and order the 2^nd defendant to pay the costs of the application to the plaintiffs.  For the reasons stated in paragraphs 15 and 16 of our judgment dated 22 May 2013, the plaintiffs are entitled to such costs on an indemnity basis.

14.  The plaintiffs have provided a statement of their costs for summary assessment.  On a gross sum basis, we summarily assess the plaintiffs’ costs on an indemnity basis in the sum of $59,122 and order the 2^nd defendant to pay such costs to the plaintiffs within 7 days of today’s date.