THE KWANGTUNG PROVINCIAL BANK v. CHUNG SUN KWAN

CACV 64/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 64 OF 2014

(ON APPEAL FROM HCMP NO. 7711 OF 1999)

________________________

________________________

____________

JUDGMENT

____________

Hon Lam VP (giving the Judgment of the Court):

1. This judgment deals with the notice of motion of the Defendant of 12 September 2014. By that notice, the Defendant sought leave to appeal against our decision on 15 August 2014 to strike out his third party claim and dismiss the third party action.

2. The court gave directions for the notice to be determined on papers. Parties have filed the following submissions in accordance with the directions:

(a) Defendant’s submissions in English dated 17 October 2014;

(b) Defendant’s supplemental submission in Chinese dated 20 October 2014;

(c) Submissions of Mr Derek Chan, counsel for the Third Party, of 29 October 2014;

(d) Defendant’s reply submissions in English dated 14 November 2014; and

(e) Defendant’s second reply submissions in English dated 17 November 2014.

3. We have read all the submissions. For the most part, the Defendant’s submissions tried to re-argue the merits of the strike-out application (and as pointed out by Mr Chan, relied partly on arguments which his counsel had not pursued or expressly conceded before us). We wish to reiterate what another division of this court said recently in Ho Sin Ying v Chan Yui Ling CACV 221 of 2013, 14 Nov 2014, at paras 2 and 3 concerning the proper scope of submissions in the context of an application before this court for leave to appeal to the Court of Final Appeal:

“2. At the outset, we wish to take this opportunity to remind practitioners that this court will not allow an application of this nature to be deployed as an occasion for re-running the substantive arguments (whether reformulated or in the same way as the arguments already canvassed in the substantive appeal). This comment applies to both written as well as oral (if an oral hearing takes place) presentation of materials in the context of an application for leave to appeal. It should be borne in mind that by this stage, this court has made its decision on the substantive appeal after hearing the appeal itself. The court is therefore familiar with the background and the substantive arguments engaged. Extensive regurgitation of such arguments before this court in an application for leave to appeal to the Court of Final Appeal is unnecessary. The focus in the application is whether the requirements for granting leave under s 22 of the Hong Kong Court of Final Appeal Ordinance [“HKCFAO”] can be satisfied.

3. Henceforth, this court expects practitioners to bear the above observations in mind in the preparation of their submissions for an application of this nature.  The submissions should not seek to re-argue the points which had already been canvassed at the appeal.  They should focus on how it is contended that leave should or should not be given in accordance with the relevant criteria in the HKCFAO and whether those points actually arise in the context of the case before the court.  In future, the court may return submissions which substantially go beyond such parameters and counsel and solicitor will not be entitled to costs for the preparation of the same.”

4. Our decision, being one made on a summons for striking out, is interlocutory in nature for the purpose of Section 22 of the Hong Kong Court of Final Appeal Ordinance.  As such, leave cannot be granted as of right.

5. On the discretionary limb for the grant of leave, the notice of motion did not identify any point of great, general or public importance [“GPI”]. Amongst all the submissions filed by the Defendant, one can only find the identification of the points of GPI at para 5 of his submissions of 17 October 2014 where the GPI questions were formulated as follows:

“Finally, the question whether the conduct of the Official Receiver and the effect of that conduct on the property (i.e. the right of action) bound the assignee of the property (See para 16.1 of the Judgment) is a question of great general or public importance in that

(a) although an assignee will take his assignment “subject to equities”, whether a delay on the part of the assignor (the Official Receiver in this case) in the prosecution of an action is an equity to which the assignee (I myself) will be subject after assignment; and

(b) if the delay on the part of the assignor is an equity, whether the inaction on the part of the obligor (TP in this case) which placed the assignee in a worse position is relevant to the question whether it would be inequitable to allow the obligor then to raise that equity against the assignee.”

6. As Mr Chan said in his submissions, the first question had been expressly abandoned by Mr Chain during the hearing before us. Mr Chain accepted that the inaction on the part of the Official Receiver is relevant for the purpose of considering whether the Defendant’s claim should be struck out. In any event, for the reasons we have given at para 16.1 to 16.3 of our judgment of 15 August 2014, we do not think the question is arguable.

7. In our view, it is conceptually confusing to analyse the impact of the Official Receiver’s inaction by reference to the legal principle of assignment subject to equities.  Thus, quite apart from the fact that question 2 had never been argued before us, we do not think it is going to take the matter further.

8. The other parts of the submissions of the Defendant are re-arguments on the merits and focused on the facts of the case. We cannot see any GPI questions arising from those submissions. We are not minded (as it would be inappropriate for us to do so) to re-visit our judgment on the merits in the guise of responding to such submissions.

9. We do not think this is a proper case for leave being granted on the “otherwise” limb of Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

10. For these reasons, the notice of motion is dismissed. We also order the Defendant to pay the costs of the Third Party on the notice, such costs to be taxed if not agreed.