LEE SHI YAN ESTHER v. APPLE ASIA LTD (sued as Apple Inc, Hong Kong Branch)

CAMP 88/2025, [2026] HKCA 1008

On Appeal From [2025] HKCFI 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 88 OF 2025

(ON AN INTENDED APPEAL FROM HCA NO. 1616 OF 2024)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

I.  Introduction

1.  This is the plaintiff’s application for leave to appeal out of time against the decision dated 7 April 2025 of Au‑Yeung J (‘the Judge’) (‘the Decision’)[1]. We take the view that the application can be properly dealt with without a hearing on the basis of written submissions only pursuant to Order 59, rule 14A(1) of the Rules of the High Court (Cap. 4A) (‘RHC’).

II.  Background

2.  The plaintiff’s claim against the defendant is for, amongst other things, an interim injunction requiring the defendant to reply to her in writing in respect of ‘iPhone problems’, to compensate her $14 million ‘for damages or sufferings due to the use of Apple ID of the Plaintiff by third parties’, and compensation for the ‘disappearance of a photo taken by the iPhone of the Plaintiff’. Upon the defendant’s application, the Master made an order on 25 September 2024 striking out the statement of claim on the ground that it disclosed no reasonable cause of action (‘the Strike‑out Order’).

3.  On 15 November 2024, the plaintiff appealed against the Strike-out Order (‘the Appeal’). However, she was absent at the hearing of the appeal on 19 December 2024 and the Judge dismissed the appeal for want of prosecution (‘the Dismissal Order’). The Dismissal Order was subsequently sealed and perfected on 9 January 2025.

4.  On 19 February 2025, the plaintiff applied by summons (‘the Set‑aside Summons’) to annul the Strike‑out Order out of time. She also sought leave to appeal out of time the Strike‑out Order and the Dismissal Order. By the Decision dated 7 April 2025, the Judge ordered the Set‑aside Summons be dismissed and the plaintiff’s application for extension of time against the Strike‑out Order and Dismissal Order be dismissed.

5.  On 2 May 2025, the plaintiff applied for leave to appeal out of time to this Court against the Decision.

III.  Our view

1)  Whether leave to appeal is required

6.  Mr Yeung for the defendant submitted that no leave is required to appeal against the Decision as Order 59, rule 21(1) and (2) RHC are exceptions to the leave requirement under section 14AA(1) of the High Court Ordinance (Cap. 4) :

‘ High Court Ordinance

14AA Leave to appeal required for interlocutory appeals

(1)  Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.

Rules of High Court

21.  Judgments and orders to which section 14AA(1) of the Ordinance not apply

(1)  Judgments and orders to which section 14AA(1) of the Ordinance (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right from them are the following—

(a)  a judgment or order determining in a summary way the substantive rights of a party to an action;

…

(2)  Without affecting the generality of paragraph (1)(a), the following are judgments and orders determining in a summary way the substantive rights of a party—

(b)  an order striking out an action or other proceedings or a pleading or any part of a pleading under Order 18, rule 19 or under the inherent jurisdiction of the Court;

…

(f)  an order dismissing or striking out an action or other proceedings for want of prosecution;

…’

7.  In the present case, although both the Strike‑out Order and Dismissal Order are orders determining the substantive rights of a party to an action in a summary way, leave to appeal (out of time) is still required because the actual decision of the Judge was the refusal to grant an extension of time to appeal against the Strike‑out Order and the Dismissal Order, which are interlocutory decisions as per Leung So Hung Siem v Carson Wen & Others [2019] 2 HKC 387 at [7] and [12]. Under Order 59, rule 2B(2) of RHC, the plaintiff should seek leave from the Judge first. As the plaintiff made the present application directly to this Court without first seeking leave from the Judge, which according to Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678 at [12], it can be dismissed without consideration of the merits. Even assuming that there were special circumstances making it impossible or impracticable for the plaintiff to first make the application to the Judge as per Order 59, rule 14(4) of RHC, we are of the view that no leave should be granted having considered the merits of the application.

2)  Merits of the application

8.  In considering whether to grant leave to appeal out of time, the Court will take into account (1) the length of the delay, (2) the reasons for the delay, (3) the chances of the appeal succeeding if an extension of time is granted and (4) the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success. See Lee Chick Choi v Best Spirits Company Limited, HCMP 371/2015, 21 May 2015, [19].

(1)  Length of Delay

9.  The plaintiff was late by 10 days when she made the present application on 2 May 2025, which cannot be regarded as insubstantial.

(2)  Reasons for delay

10.  On 9 June 2025, the plaintiff filed an affidavit explaining her delay in making the present application. Leaving out paragraphs which reiterate reasons for her delay in lodging the appeal and reasons for her absence in attending the hearing on 19 December 2024, the plaintiff said :

i)  There were three days of public holidays during the period for submitting the appeal and the deadline for submitting the appeal was a public holiday (‘Reason 1’);

ii)  Submitting the appeal would incur additional costs and time which took the plaintiff days to consider (‘Reason 2’); and

iii)  The plaintiff took considerable time to prepare for the appeal as she is a layperson (‘Reason 3’).

11.  Reason 1 is not a valid excuse. As the deadline for submitting the appeal fell on 21 April 2025 which was a public holiday, it was automatically postponed to the next day i.e. 22 April 2025 when the Court office reopened as per Order 3, rule 4(1) of RHC.

12.  Reason 2 is not a reasonable explanation. It is the plaintiff’s own choice whether to appeal and her sole responsibility to bear in mind the appeal timeframe.

13.  Reason 3 concerns the difficulties faced by a litigant in person. However, the principles are clear that this does not justify applying a lower standard of compliance with rules or orders of the Court : Success Lane Development Limited v Fergurson Hong Kong Limited trading as New World Millenium Hong Kong Hotel [2024] HKCA 839 at [26].

14.  Accordingly, none of the reasons provided were valid excuses for the plaintiff’s delay in making the present application.

(3)  Chance of appeal succeeding

15.  As the delay was not insubstantial nor excusable, the plaintiff must show a real prospect of success on the merits. The draft grounds of appeal were exactly the same as the ones before the Judge. As for the plaintiff’s statement filed in support of this application, the first three paragraphs merely repeated the explanations she gave in her affidavit about the reasons for delay in making the present application, while the remaining paragraphs were just rephrasing of the draft grounds of appeal.

i)  The Judge’s refusal to re-open the appeal dismissed by Dismissal Order

16.  The Judge refused to re-open the appeal on the basis that the Court had no such power after the Dismissal Order was sealed. Despite so, the Judge proceeded to consider the explanations given by the plaintiff for her absence in attending the hearing on 19 December 2024, but found none of them reasonable.

17.  The principle that the Court is precluded from considering the matter after the order is sealed is well‑established.

18.  None of the points raised by the plaintiff in her draft grounds of appeal or her statement addressed the Judge’s finding that the Court has no power to re-open the appeal. The plaintiff also failed to explain how the Judge erred in ruling that her reasons for failure to attend the hearing were unreasonable. We do not see such an appeal has any chance of success.

ii)  The Judge’s refusal to grant extension of time

19.  In deciding not to grant the plaintiff extension of time to appeal against the Striking‑out Order and the Dismissal Order, the Judge had also gone through the four factors laid down in the Lee Chick Choi case, i.e. a) the plaintiff was late for five weeks when she lodged the Notice of Appeal, which was a lengthy delay; b) the five reasons given in explaining her delay in lodging the Notice of Appeal were inexcusable; c) the five paragraphs in the Statement of Claim lacked reasonable causes of action and the eight draft grounds of appeal were unarguable so that the appeal was doomed to fail and d) no prejudice has been asserted by the defendant.

20.  The Judge’s refusal to grant the plaintiff extension of time to appeal was an exercise of discretion. It is well‑established that an appellate court will not lightly interfere with a judge’s exercise of discretion unless it can be demonstrated that the judge has proceeded on wrong principles or the exercise of discretion has been plainly wrong. See Alan Chung Wah Tang v Lee Siu Fong [2020] HKCA 482 at [28]‑[29]. In any event, the plaintiff failed to identify any error in the Judge’s finding, but merely repeated submissions which had been considered and rejected. We see no chance of an appeal succeeding even if extension of time is granted.

21.  In light of the above, we considered that the plaintiff failed to demonstrate a real prospect of success on the merits of her present application.

(4)  Degree of prejudice to the defendant

22.  No prejudice has been asserted by the defendant.

IV.  Conclusion

23.  Accordingly, her application for leave to appeal out of time against the Decision is dismissed.

24.  We make no order as to costs as Mr Yeung accepted there should be no order as to costs.

25.  We further order under Order 59, rule 2A(8) of RHC that no party may request the determination to be reconsidered at an oral hearing inter partes, as this application is entirely without merits.