SUN FOCUS INVESTMENT LTD v. TANG SHING BOR AND ANOTHER

HCMP 2251/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2251 OF 2009

(ON AN INTENDED APPEAL FROM HCA NO. 538 OF 2007)

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D E C I S I O N

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1.  This is an application for leave to appeal the judgment of Mr Recorder Shieh SC given on 5 October 2009.  The matter before the recorder was an application by the defendants to strike out the amended statement of claim, or alternatively, a number of paragraphs of that pleading.  The recorder struck out the whole of the amended statement of claim but did not dismiss the action.  He also refused to make an order for security for costs although he indicated that he would have done so had he not struck out the statement of claim.  In effect, he left the matter over until it could be determined whether a re-amended statement of claim would be permitted to be filed, when it could be seen what strength the action might have.

2.  On this application the defendants seek leave to appeal on the basis that the recorder should have dismissed the action.  It is said that the recorder “failed to give adequate consideration or at all” to a number of factors.  It should be stated at the outset that since the orders made by the recorder were matters of discretion the argument that the recorder did not give “adequate” consideration is not one which gives grounds for appeal.  The weight which a judge gives to matters in his discretion are a matter for him and the Court of Appeal will not interfere with the exercise of discretion by a judge unless it can be shown that he failed to take into account relevant considerations or took into account irrelevant considerations or that his decision was clearly wrong.  The fact that a judge does not specifically refer to a matter does not mean that he did not take it into consideration provided it is clear from his judgment that it is not something which can be said that he must have clearly overlooked.

3.  It should not go unobserved that the application to strike out the amended statement of claim came after the action had been in being for quite a lengthy period of time.  The recorder clearly exercised his discretion not to dismiss the whole action but required the plaintiff to apply to file a new pleading within a short space of time.  That was a course which the recorder was clearly entitled to take.  It cannot be said that his discretion could not have been exercised in that way.  He might have taken a different course.  It is not for the Court of Appeal to second guess the recorder on what was a course open to him.

4.  In short, the recorder made a practical order.  This application for leave to appeal is not put on the basis that the plaintiff could not frame a cause of action against the defendants.  By far the most practical way of proceeding was that chosen by the recorder.  If it transpires that the plaintiff cannot frame a cause of action against the defendants then the application to file the new re-amended pleading will fail and the action will itself be struck out.  Given the issues involved, the recorder was perfectly entitled to consider that the question of security for costs should be left over until it can be seen what, if any action, can be pleaded against the defendants.  In those circumstances, leave to appeal is refused.