MACPI GROUP (HK) LTD v. YAP BEE HONG CHRISAND

DCCJ5593/2007 & DCCJ605/2008 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5593 OF 2007

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D E C I S I O N

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1.  The plaintiff applied for leave to appeal against my refusal to vacate the trial date on 14 February to 18 February 2011 at the earlier hearing on 6 January this year. The plaintiff further appealed today against the order for costs of the hearing of the application to adjourn the trial date, and the costs order against the plaintiff for his application for discovery of a new document, which was allowed by me. The plaintiff also asked for a stay of execution, should leave to appeal be granted, pending the determination of the plaintiff’s appeal by the Court of Appeal.

2.  The plaintiff’s counsel, Mr Lee, submitted that the plaintiff’s appeal has a real and substantial prospect of success in that the plaintiff has shown exceptional circumstances to justify the trial to be postponed.  The exceptional circumstances were that the plaintiff’s witness, who is a director at the plaintiff, had to attend an exhibition in Moscow close to the date of trial. The plaintiff claimed if Mr Mosso, the director, could not attend the exhibition to pursue its business opportunities there, the plaintiff would lose out.

3.  Mr Lee submitted that exceptional circumstances under Order 35 should include, other than personal factors, business factors, that this is a relevant issue suitable to be determined by the Court of Appeal.

4.  I was referred to Lord Woolf’s guidelines set out in the Practice Note reported in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538.

Lord Woolf’s (then Master of the Rolls) guidelines 1 and 2 at page 1538 of the report are as follows:

“1. The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why, however, this court has decided to adopt the former phrase is because the use of the word ‘realistic’ makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

2. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying”.

5.  It is this last sentence of the guideline 2 that Mr Lee relied on, that business factors should also be considered equally as personal factors as exceptional circumstances.

6.  Practice Direction 5.2/10 provides that milestones dates will be immoveable, save in the most exceptional circumstances.  Examples given are: late instructions from clients, changes in the team of lawyers, absence of prejudice which cannot be compensated for by costs, will not be treated as exceptional circumstances. The list is not an exhaustive one as to what constitutes exceptional circumstances.  It gives merely an example of what are not exceptional circumstances.

7.  The plaintiff’s reason for setting aside the trial dates of 14 to 18 February 2011, which was fixed in April 2010, is that the plaintiff’s witness, Mr Mosso, has to pursue business opportunities in Russia at a Moscow exhibition, that the plaintiff’s failure to attend the exhibition may mean loss of business opportunities in Russia.

8.  The loss of possible business opportunities, in my view, cannot be in any way regarded as exceptional circumstances.  As I have said in my decision of 6 January 2011, there are business opportunities in every corner of the earth at any time.  It is not exceptional for a business concerned to pursue every opportunity available to do business every day of the year and at any time.

9.  That was why the application was refused, because this excuse or reason, is applicable every month of the year to all business concerns.  In the plaintiff’s case, whenever there are similar exhibitions anywhere in the world, at any time.  Once the trial date is fixed, the milestone dates should not be moved whenever one party considers further business opportunities which may suddenly crop up that would clash with the date of the trial, particularly when those trial dates were fixed to accommodate the witnesses’ diaries in the first place.

10.  Mr Lee criticised the Court for being inconsistent, citing my refusal of his application on 1 March last year, the original date of the trial, to call an additional witness at the trial.

11.  That application was opposed by the defence because calling the proposed third witness was never part of the plaintiff’s case, even though his role was known to all parties all along from the very beginning.  The defendant had suspected the plaintiff’s motive for calling the third witness on 1 March 2010 was to fill in the gaps of evidence in the plaintiff’s case.  On that occasion on 1 March 2010, I refused the plaintiff’s application to call an additional witness at a late stage on the basis of case management practice.

12.  At the 6 January 2011 application, Mr Lee informed me that Mr Mosso, the plaintiff’s witness, would not be available to give evidence at the trial, if the trial dates are not postponed.  In my decision, I have expressed that it is up to the plaintiff to deploy its human resources to suit its commercial interests.  I have also informed Mr Lee that should Mr Mosso be unavailable to attend the trial as a witness, I will consider the plaintiff’s application to call another witness in his place.  I have never suggested to the plaintiff whom it should adduce evidence from.  It may be anyone at the plaintiff’s office who knows the background of the action between the plaintiff and the defendant.  It would still be evidence from two witnesses from the plaintiff at the trial.  Therefore, there will not be any change of number of witnesses and the number of days of trial.

13.  I find Mr Lee’s reasons today and the particulars given in his notice of appeal, to be contrived, irrelevant and deliberately misleading.  I cannot find in the plaintiff’s ground of appeal any realistic prospect of success in the appeal. It is fanciful for the plaintiff to think that the pursuit of business opportunities should be placed in the same category as, for example, a vital witness’s own illness or illness of a close member of that witness, that would prevent the witness’ court attendance in the court’s discretion to adjourn the trial based on exceptional circumstances.  For these reasons, I refuse leave to appeal.

Costs appeals

14.  Costs on the application for vacating the trial dates should follow the event.  Therefore, I had ordered costs against the plaintiff, I do not see any reason why that should have any real prospects of success or arguable prospect of success, when I do not think the plaintiff has any realistic prospect of success in the appeal of the adjournment of the trial dates.

15.  As to the costs of the further discovery of documents, the plaintiff applied to produce further documents 10 months after the defendant’s submission of new documents. The application was allowed and costs should also be borne by the plaintiff, in my consideration, because the plaintiff had taken 10 months to make the application and the application was close to the date of trial. 

16.  As to the application for stay of execution, the plaintiff asked for a stay of execution, that is, a stay of the trial, which would take place on 14 February this year, should I allow leave to appeal the application to vacate the dates of trial.  I have refused leave to appeal for reasons set out above.

17.  Mr Lee submitted that the appeal would be rendered nugatory if there is no stay of execution.  That may be so, but if I should grant a stay in spite of not granting leave to appeal, the situation would be quite ridiculous, because the plaintiff would have got what it sought (i.e. to vacate the trial dates) by lodging an application to stay without leave to appeal.  Should I grant this stay of execution regardless of the result of the appeal, the plaintiff would have got what it wanted.  In fact, there is no need for the plaintiff to lodge an appeal at all, if I granted a stay.

18.  I have been referred to Ma J’s (as he then was) judgment in Wenden Engineering Service v Lee Shing Yue Construction, HCCT90/1999, where he, citing his own judgment in Star Play Development Limited v Bess Fashion Management Company Limited, HCA4726/2001, paragraphs 6 to 10 (judgment dated 7 June 2002).  He referred to Rules of Supreme Court, Order 59, r.13(1) “Stay of execution: the applicable principles” at paragraph 6 of his judgment:

“6. Though in the court’s discretion whether or not to grant a stay, it is important to bear in mind that the starting point is Rules of Supreme Court, Order 59, rule 13(1):

‘Except so far as the court below or the Court of Appeal or a single judge may otherwise direct-

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;

(b) no immediate act or proceeding shall be invalidated by an appeal’.

7. In other words, unless the defendant can justify a stay of execution, one will not be ordered. The practice of the court is that justification can be demonstrated only if good reasons exist.

8. Good reason can exist in a variety of forms. It will be wrong to set out any exhaustive definition of what would constitute good reasons, but, commonly, reference is made to factors such as whether the absence (or existence) of a stay would render an appeal nugatory (thus bringing into focus the relative prejudice that may be caused to the appellant and to the respondent by a stay of execution), and the merits of the appeal”.

19.  I have also been referred to paragraph 9(6) of Judge Ma’s earlier judgment in Star Play Development, where he held:-

“(6) The existence of merely an arguable appeal cannot by itself amount to sufficient reason to justify a stay. It can be put this way: the existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted”.

20.  Mr Lee referred me to subparagraph 8 of paragraph 9 of the same judgment:

“(8) In most cases, the court will not be dealing with the extreme situations I have referred to. Often, it will be faced with simply the existence of an arguable appeal. Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified. The demonstration of an appeal being rendered nugatory is one example, albeit a common one. Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted, the court may require no more than the existence of an arguable appeal. Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require, in the absence of any other factors, the appellant to demonstrate strong grounds of appeal or a strong likelihood of success. This I understand to be the sentiment found in authorities such as World Trade at 2 (in a passage cited with approval by the Court of Appeal in Fung Wai Kwong William at 48) and Mabul Properties Corporation v Ahmed, unreported, 24 June 1987, English Court of Appeal”.

21.  In Judge Ma’s judgment, he has emphasised that in the case he was judging, the starting point is that the successful party is not to be deprived of the fruits of his success, but of course, the authority dealt with a case after trial with judgment delivered on the losing party lodging an appeal to the Court of Appeal, whether there should be a stay of execution.

22.  Here, the situation is a different one, should I grant a stay of execution without granting leave, it would be meaningless because the date of trial would be vacated and the plaintiff, in fact, would not need to go to seek an appeal in the Court of Appeal.  Even if the plaintiff does so, firstly, it does not mean that it will get leave to appeal from the Court of Appeal; secondly, even if it does get leave to appeal, it does not mean that the appeal would be successful. And if the appeal is not successful, the date for trial has been vacated.  It is the opposite of negating the result of my decision on 6 January 2011, without the plaintiff having to seek an appeal.

23.  On the basis that I have refused the plaintiff’s leave to appeal for vacating the trial date because I cannot find the plaintiff’s grounds of appeal disclosed any arguable prospect or reasonable prospect of success, I refuse leave to appeal and refuse leave to stay execution and to vacate the date of trial.  The trial will take place on 14 February 2011, with costs to the defendant, to be taxed if not agreed, with certificate for counsel.

24.  As to the application for the filing of opening submissions, I  make the following directions:

(1) parties to file and exchange their respective opening submissions within seven days of the trial, and within three days of the trial to file a reply submission, if any, by either party;

(2) the opening submissions will stand as the party's opening submission, save for clarifications or amendments, if any.

(Discussion re costs)

25.  Since I have refused leave to appeal and refused a stay pending appeal, because there is no leave to appeal.  Therefore, no further costs order is possible after this, unless, of course, the plaintiff takes this matter further and, no doubt, by which time the issue of costs would be dealt with by a higher court, so my order of costs remains until it is quashed by the Court of Appeal.

(Further discussion re costs)

26.  After perusing the defendant's gross sum bill, I assess the defendant's bill at $19,500.