POOSAALA RAM PRASAD v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

CAMP 103/2025, [2025] HKCA 934

On An Intended Appeal From [2025] HKCFI 900 &

[2025] HKCFI 1759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2025

(ON AN INTENDED APPEAL FROM HCA NO 279 OF 2021)

________________________

________________________

_______________

J U D G M E N T

_______________

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

INTRODUCTION

1.  This is the Plaintiff’s summons filed on 27 May 2025 (“the Summons”) seeking:

(1)  leave to appeal against the order of Deputy High Court Judge Grace Chow (“the Judge”) dated 13 May 2025 (“the May Order”), whereby the Judge refused the Plaintiff’s application for leave to appeal, out of time, against an earlier order of the Judge dated 28 February 2025 (“the February Order”) dismissing the Plaintiff’s appeal against the order of Master Thomas Kwong dated 20 December 2024 (“Master Kwong’s Order”); and

(2)  leave to adduce various medical records of the Plaintiff exhibited to his affirmation dated 27 May 2025 as new evidence in support of his application for leave to appeal/intended appeal.

2.  Having considered the papers before us, we consider that it is appropriate to deal with the Summons on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) and rule 14A(1) of the Rules of the High Court, Cap 4A (“the RHC”), notwithstanding the Plaintiff’s request for an oral hearing of the Summons.

BRIEF BACKGROUND

3.  The basic facts of this case have been set out in a previous judgment of the Court of Appeal dated 23 December 2022 ([2022] HKCA 1876) and will not be repeated here. In gist, the Plaintiff was the holder of a bank account maintained with the Defendant. His claim arose out of the Defendant’s rejection of his application for a telegraphic transfer of a sum of HK$79,800 to a person in India with an account held with Central Bank of India. According to the Plaintiff, the funds to be transferred was for document-processing and legal fees for an intended purchase of a landed property in India. Due to the fact that the funds were not transferred, the intended purchase was cancelled. On 19 February 2021, he commenced the present action seeking to recover from the Defendant his loss and damage as a result of the cancellation of the intended purchase.

4.  On 11 December 2024, the Defendant applied by summons (“the Amendment Summons”) for leave to amend its Amended Defence as per a draft Re-Amended Defence annexed to the Amendment Summons, and to file and serve the Re-Amended Defence within 7 days from the date of the order to be made therein.

5.  On 20 December 2024, Master Kwong heard the Amendment Summons and made an order allowing the Defendant’s application. The sealed order of Master Kwong (“the Sealed Order”) stated, at §2, as follows: “Unless the Defendant do file and serve its Re-Amended Defence within 7 days from the date hereof, the Defendant shall be debarred from doing so”.

6.  On 2 January 2025, the Defendant filed and served the Re-Amended Defence. Taking into account the intervening Saturdays and public holidays, the filing and service of the Re-Amended Defence by the Defendant was within the time limit as stipulated in §2 of the Sealed Order. However, the Plaintiff contended that the Re-Amended Defence was filed out of time because, according to the Plaintiff, Master Kwong had explicitly ordered at the hearing of the Amendment Summons that unless the Defendant filed and served the Re-Amended Defence by 4:00pm on or before 27 December 2024 (that is, within 7 calendar days from the date of the hearing), the Defendant would be debarred from doing so.

7.  On 3 January 2025, the Plaintiff took out a summons seeking, inter alia, an order from the court that the Defendant was “in default for failing to file and serve the Re-Amended Defence as per the court’s order dated 20^th December 2024”. That summons was dismissed by Master Matthew Leung on 15 January 2025.

8.  On 22 January 2025, the Plaintiff filed a Notice of Appeal (“NoA”) against Master Kwong’s Order. By then, the Plaintiff was over 2 weeks late to lodge the appeal under Order 58, rule 1(3) of the RHC.

THE FEBRUARY DECISION

9.  The Judge heard the Plaintiff’s appeal on 7 February 2025, and gave a written decision on 28 February 2025 (“the February Decision”). The Judge considered the Plaintiff’s delay in lodging his appeal was short, and was prepared to extend time for the Plaintiff to appeal if there were merits in the intended appeal. However, she took the view that the intended appeal had no merits, and dismissed the NoA. The Judge’s reasons are fully set out at §§9-31 of the February Decision, and will not be repeated here.

10.  The Plaintiff was not satisfied with the February Order. Since the February Order was interlocutory in nature, the Plaintiff required the court’s leave to pursue an appeal against it, and the application for leave to appeal ought to be made to the Court of First Instance within 14 days from the date of that order pursuant to Order 59, rule 2B(1) of the RHC, ie on or before 14 March 2025. The Plaintiff failed, however, to issue a summons for leave to appeal until 27 March 2025.

11.  The Judge heard the Plaintiff’s application for leave to appeal on 9 April 2025, and gave a written decision on 13 May 2025 (“the May Decision”). The Judge took the view, inter alia, that the Plaintiff’s intended appeal had no reasonable prospect of success and the overall justice did not require the exercise of her discretion to extend time for the Plaintiff to appeal. Accordingly, the Judge dismissed the Plaintiff’s summons of 27 March 2025.

THE SUMMONS

12.  As mentioned at the beginning of this judgment, the Plaintiff took out the Summons on 27 May 2025 seeking leave to (i) appeal against the May Order, and (ii) adduce new evidence in support of his application for leave to appeal/intended appeal.

13.  We shall first deal with the Plaintiff’s application for leave to adduce new evidence before we consider the Plaintiff’s application for leave to appeal.

THE APPLICATION FOR LEAVE TO ADDUCE NEW EVIDENCE

14.  Exhibited to the Plaintiff’s affirmation dated 27 May 2025 filed in support of the Summons are copies of various medical records which the Plaintiff wishes to adduce as new evidence in support of his application for leave to appeal/intended appeal. The medical records in question consist of the following:

(1)  two discharge slips dated 3 May 2025 showing that the Plaintiff was admitted to the Accident and Emergency at Queen Mary Hospital (“QMH”) due to chest pain, and was discharged on the following day with medication and medical appointments or check-ups scheduled between May 2025 and October 2025;

(2)  two appointment slips showing two medical sessions scheduled for the Plaintiff at QMH on 19 May and 20 May 2025 respectively; and

(3)  a letter issued by a government doctor dated 4 May 2025 showing an increase in dosage of the medicine used by the Plaintiff since that date.

15.  Pursuant to the directions given by the Registrar of Civil Appeals on 18 June 2025, the Plaintiff filed an affirmation on 2 July 2025, explaining that the medical records concerned his hospitalization between 3 and 4 May 2025 and were not available at the time of the lower court hearings on 7 February 2025 and 9 April 2025. The Plaintiff says that the medical records should be admitted as new evidence because they are relevant to the court’s consideration of his reason for the delay, assessment of damages of his claim, and determination of whether to extend time for him to file an appeal.

16.  The relevant principles for the exercise of the Court of Appeal’s power to receive further evidence as to matters which have occurred after the trial or hearing in the proceedings below are well-settled. The Court of Appeal has a wide discretion to admit evidence of such matters, but the discretion is to be exercised sparingly with due regard to the need for finality in litigation. Whilst it is not possible to produce an exhaustive list of relevant considerations, amongst them are the extent to which the fresh evidence may affect the outcome, the time element and the conduct of the parties. The evidence should be admitted where it would be an affront to one’s sense of fairness not to do so. The new evidence must also substantially affect a basic assumption made at the trial. The matter is one of degree. See Re China Fishery Group Ltd [2020] HKCA 169, at §26; and China Medical Technologies Inc v Bi Xiao Qiong [2020] HKCA 541, at §12.

17.  We consider it plain that the medical records which the Plaintiff wishes to adduce as new evidence will have no impact on his application for leave to appeal or his intended appeal. At the outset, it should be noted, following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, that the Plaintiff’s application for leave to appeal against the May Order should be treated as a renewed application for leave to appeal against the February Order. As the Judge made it clear in the February Decision, she was prepared to extend time for the Plaintiff to appeal Master Kwong’s Order if there were merits in the intended appeal. However, the Judge found that the Plaintiff’s intended appeal had no merits, and thus she dismissed the NoA. The Plaintiff’s delay in taking out the NoA was not material to the Judge’s decision, and is likewise not material to the question of whether this Court ought to grant leave to the Plaintiff to appeal the February Order.

18.  The Plaintiff’s reliance on the medical records to show the impact of his medical conditions on his daily life and earning capacity for the purpose of the court’s assessment of damages in his claim against the Defendant is misconceived. His intended appeal is against an interlocutory order of the court granting the Defendant leave to further amend a pleading. The Judge’s decision to dismiss the NoA had nothing to do with any assessment of damages, and the issue of quantum is irrelevant to the question of whether the Defendant ought to be granted leave to amend the pleading.

19.  For the above reasons, we refuse to grant leave to the Plaintiff to adduce new evidence sought under the Summons.

THE APPLICATION FOR LEAVE TO APPEAL

20.  The applicable principles for granting leave to appeal against an interlocutory judgment or order of the Court of First Instance, and the consideration relevant to the court’s exercise of its discretion on whether to extend time to an applicant to apply for leave to appeal, are well-settled and have been set out by the Judge at §§2 and 4 of the May Decision. They will not be repeated here.

21.  The draft notice of appeal (“the Draft NoA”) annexed to the Summons consists of 21 paragraphs. They may be grouped into 5 broad intended grounds of appeal (hereinafter referred to as “Ground 1” to “Ground 5”). As will be seen below, none of the intended grounds of appeal has merit.

22.  Ground 1 challenges the Judge’s approach adopted in the May Decision of giving undue weight to the prospect of success of the Plaintiff’s intended appeal over other factors in her determination of the Plaintiff’s extension of time application for leave to appeal[1]. The Plaintiff complains that the Judge erred in failing to pay due regard to his reason for the delay, notwithstanding that the delay was short and there was no demonstrable prejudice to the Defendant even if an extension of time was allowed.

23.  There is nothing in this ground. As earlier mentioned, the proper focus should be on the February Order, not the May Order. In any event, it is plain that the merits of an intended appeal are critical to the question of whether the court ought to grant leave to appeal or extend time to appeal. If the intended appeal has no merit, it would be futile to grant leave to appeal or extend time to appeal. The Judge’s approach of focusing on the prospect of success of the Plaintiff’s intended appeal was in fact favourable to the Plaintiff.

24.  Grounds 2 and 3 may be taken together. They challenge the Judge’s holding that the Plaintiff’s intended appeal against the February Order had no reasonable prospect of success:

(1)  Ground 2 concerns the Judge’s rejection of the Plaintiff’s submission that there was non-compliance of Master Kwong’s Order by the Defendant[2]; and

(2)  Ground 3 challenges the Judge’s exercise of discretion afresh in allowing the amendments to the Amended Defence as sought by the Defendant[3].

25.  Under Ground 2, the Plaintiff effectively seeks to rehearse his arguments that the Defendant unilaterally altered the deadline for the filing and service of the Re-Amended Defence during the process of obtaining the Sealed Order, and the Defendant’s failure to file and serve the Re-Amended Defence on or before 27 December 2024 constituted a non-compliance with Master Kwong’s Order. The Plaintiff complains that the Judge erred in (i) failing to properly address the evidence that the Defendant’s solicitors made an admission at the hearing before Master Leung on 15 January 2025 that they contacted the clerk to Master Kwong in December 2024 without giving any notice to the Plaintiff, (ii) failing to infer from the evidence that the Defendant through its solicitors secretly extended the original deadline of 27 December 2024 for the filing and service of the Re-Amended Defence without making any formal application, giving rise to a procedural irregularity and an abuse of process in the proceedings and causing injustice to him, and (iii) failing to impose an automatic sanction to strike out the Re-Amended Defence by reason of the Defendant’s non-compliance with Master Kwong’s Order.

26.  The Plaintiff’s complaints were convincingly dealt with by the Judge at §§11-15 of the February Decision:

“[11] P asserted in his affirmation filed in support of NOA (‘P’s Affirmation’), and maintained in his oral submissions, that the Master had explicitly directed at the hearing on 20 December 2024 that the RAD be filed on or before 27 December 2024 at 4pm. Mr Law, who was present at that hearing, did not accept that any date was mentioned by the Master at the hearing and in fact the Amendment Summons had sought for the RAD to be filed and served within 7 days from the date of the order.

[12] In P’s Affirmation, P exhibited a copy of the annotated backpage of the Amendment Summons. He relied on the handwritten words (apparently of the Master) that ‘D do file and serve its Re-amended Defence by 4:00pm on or before 27 December 2024’. I have looked at the original Amendment Summons in the court files. The words ‘by 4:00pm on or before 27 December 2024’ were crossed out and instead the words ‘within 7 days from the date hereof’ were written. Next to the deletion and insertion appears the initials of the Master.

[13] Furthermore, there is a stamp on the backpage of the Amendment Summons which indicates that the draft order was approved on 27 December 2024 by the clerk to Master. From the bar table, and as stated in D’s Chronology of Events, Mr Law submitted that on 30 December 2024 he sought clarification from the court on the draft order and only on 31 December 2024 the clerk to Master informed that Master had reconsidered the draft order submitted and the approved order was ready for collection. On 2 January 2025, the approved draft order was collected, sealed and served on P.

[14] Notwithstanding the assertion by P that the order for the RAD to be filed and served within 7 days was only approved on 31 December 2024 by the Master after the original deadline of 27 December 2024 had passed (suggesting a change of the order after the hearing), it seems to me that if the Order was not the order made on 20 December 2024, it would not have been approved by the Master for sealing. There is no basis to go behind the express wording of the Order as sealed.

[15] As the express term of the Order was for the RAD to be filed and served within 7 days of 20 December 2024, and applying O.3, r.2(5) of RHC (which provides that where the period in question is a period of 7 days or less and would include a specified day, i.e. Saturday and general holiday, that day shall be excluded), the filing of the RAD on 2 January 2025 was within time.”

27.  We agree with the Judge’s analysis above. As there was no failure on the part of the Defendant to comply with Master Kwong’s Order, the question of sanction for non-compliance with an unless order did not arise.

28.  In any event, in the context of an intended appeal against an order granting leave to amend, the Plaintiff’s complaint of the Defendant’s non-compliance with the order is nothing to the point. Even if, for the sake of argument, the Defendant had failed to comply with Master Kwong’s Order in that the Re-Amended Defence was filed and served outside the stipulated time limit, it does not mean that the order should not have made in the first place or should be overturned on appeal. All it means is that there was a non-compliance with an unless order with all the consequences that would entail from such non-compliance, but the non-compliance would be not a valid ground of appeal against the order itself.

29.  Ground 3 seeks to challenge the Judge’s exercise of her discretion to allow the amendments to the Amended Defence sought by the Defendant. The Judge exercised her discretion afresh on the issue of amendment because, as noted at §6 of the February Decision, an appeal from a master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him/her for the first time.

30.  As pointed out by the Judge at §24 of the February Decision, the only substantive amendment introduced by the Re-Amended Defence related to the insertion of a new paragraph 8(6), as follows:

“By reason of the Plaintiff’s discovery, it is further denied that there was any binding agreement between the Plaintiff and the owner(s) of the subject property, i.e. the property to the extent of 9,222 square yards equivalent to 82,998 square feet at Hyderabad in India which is situated at Plot No.7, Road No 14 Banjara Hills, Hyderabad (‘the Property’), for sale and purchase of the Property pursuant to Indian law.”

31.  The Plaintiff contends that the Judge’s decision to allow the amendments to the Amended Defence was contrary to the overriding objective(s) under Order 1A of the RHC and was plainly wrong because the Judge failed to properly consider the unfairness or prejudice to the Plaintiff arising from (i) the fundamental change brought to the Defendant’s case by the amendments sought at a late stage of the proceedings, (ii) the disproportionate burden placed on him as a litigant in person facing serious health challenge and with limited resources in conducting the present proceedings vis-à-vis the Defendant, which was resourceful and legally represented, and (iii) the Defendant’s non-compliance with Master Kwong’s Order.

32.  In our view, none of these complaints has substance:

(1)  The suggestion that the amendments sought by the Defendant would bring about a fundamental change to the Defendant’s case is a bare assertion without particulars. There is no basis for any contention that the Plaintiff would suffer any prejudice arising from the amendments which could not be compensated by an appropriate order as to costs. We are in agreement with the Judge’s reasoning at §26 of the February Decision, as follows –

“It is trite that amendments should in general be allowed if they are necessary to enable the real question and controversy between the parties to be decided provided they will not prejudice the other party and if any prejudice can be compensated by an order as to costs. The court also takes into account the underlying objective in O.1A of RHC. Whilst P has submitted that there were delays in making the application to amend and he would be prejudiced by D introducing a ‘new defence position at a late stage’, I do not accept this is a late stage of the proceedings when witness statements have not been exchanged and there were other interlocutory applications outstanding.”

(2)  As for the alleged difficulties that he will face in responding to the changes introduced by the amendments to the Amended Defence, the mere fact that the Plaintiff is a litigant in person or is suffering from some health issues is not a valid ground for refusing the amendments sought by the Defendant.

(3)  Lastly, as we have rejected the Plaintiff’s complaint of non-compliance with the Master Kwong’s Order by the Defendant under Ground 2, his contention that the Judge failed to consider or sufficiently consider the prejudice to him as a result of the alleged non-compliance must likewise be rejected.

33.  Ground 4 challenges the Judge’s holding that the overall justice did not require the exercise of her discretion to extend time for leave to appeal[4]. Ground 4 is not a self-standing ground, and its validity is dependent on the merits of Grounds 1 to 3. As we have found Grounds 1 to 3 to have no merit, Ground 4 must also be rejected.

34.  Ground 5 contends that the Judge’s refusal to extend time for him to apply for leave to appeal in effect deprived him of the opportunity to have his appeal heard by the Court of Appeal[5]. The Plaintiff says that he is a litigant in person with health issue, and the court owes a greater duty to ensure fairness to him in the proceedings under Order 1A, rule 1 of the RHC.

35.  The complaints under this ground have no validity. Neither the Plaintiff’s medical condition nor the fact that he is a litigant in person would be a justification for the court to exercise its discretion to grant him leave to appeal or extend time for him to appeal if the intended appeal has no merit. In any event, the Plaintiff has exercised his right to make the present renewed application for leave to appeal, and this Court has duly considered the application. The underlying objective of the rules to ensure fairness between the parties under Order 1A, rule 1 does not mean that leave to appeal should be granted for an appeal which is not reasonably arguable, or has no reasonable prospect of success. In the circumstances of the present case, we consider the Judge’s determinations of the Plaintiff’s applications below were thorough and fair, notwithstanding the fact that the Plaintiff was litigating in person. Both his contentions of denial of access to justice or unfairness to him in the proceedings below are plainly unsustainable.

36.  In all, we are not satisfied that the Plaintiff’s intended appeal has any reasonable prospect of success. Neither do we see that there is any other reason in the interests of justice why the appeal should be heard.

DISPOSITION

37.  The Summons is dismissed with costs to the Defendant, to be summarily assessed. The Plaintiff shall have leave to file and serve a statement of objections (limited to 2 pages) to the Defendant’s statement of costs dated 11 June 2025 within 14 days from the date of this judgment.

38.  As the Plaintiff’s application for leave to appeal is totally without merit, we make an order that no party may request the present determination refusing leave to appeal to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the RHC.