LEE CHICK CHOI v. BEST SPIRITS CO LTD

CACV 25/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2015

(ON APPEAL FROM HCSD NO 38 of 2011)

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JUDGMENT

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

1.  On 22 June 2017, we struck out the appeal on the ground that the appeal against the statutory demand had been overtaken by the bankruptcy order and the dismissal of the appeal as to the latter. Mr Lee did not appear at the hearing of 22 June 2017.

2.  By a Notice of Motion of 20 July 2017, Mr Lee applied for leave to appeal to the Court of Final Appeal against the order of 22 June 2017.  He set out his grounds in a document attached to the Notice of Motion.

3.  In accordance with Practice Direction 2.1, the Notice of Motion is processed on papers.  Mr Lee lodged submissions on the same accordingly.

4.  Having considered the submissions from Mr Lee, we do not see any reason why an oral hearing is necessary for the disposal of the Notice of Motion.  In his written submissions and correspondence, Mr Lee raised other matters not properly coming within the scope of an application for leave and this Court is not minded to entertain the same as the only application properly before us is the application for leave to appeal to the Court of Final Appeal.  In this connection, we refer to AXA China Region Insurance Co Ltd v Leong Fong Cheng CACV 113 of 2016, 28 Oct 2016 at [44] to [55] on procedural discipline and the impropriety of slipping in applications by correspondence.

5.  Before we address the motion, we shall correct a mistake spotted by Mr Lee in our judgment of 22 June 2017.  As observed by Mr Lee, the date on which his appeal against the bankruptcy order was dismissed by the Court of Appeal in CACV 138 of 2015 was 24 February 2017 instead of 17 February 2017 as stated in paragraph 4 of our judgment.  That mistake, however, cannot be a ground for giving leave in the present instance since there is no dispute that that appeal had been dismissed and application for leave to appeal had been refused.  Mr Lee said he also brought an application for leave to appeal against the bankruptcy order to the Court of Final Appeal.  However, there is nothing before us to suggest that he has any prospect of obtaining such leave from the Appeal Committee.

6.  In fact, Mr Lee himself indicated under “Exhibit 3” paragraph 3(3) in the attachment to the Notice of Motion that he “used to have no intention to contest on this appeal at all …”.

7.  Having read the documents lodged by Mr Lee, we cannot find any basis for holding that leave to appeal should be granted pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance. There is no question of great general or public importance in the intended appeal.  There is no reason for leave to be granted on the “or otherwise” limb.

8.  It seems that Mr Lee was mostly concerned with the order for costs we made.  We followed the usual procedure in listing the appeal for striking out the same.  Despite several letters written to various parties which Mr Lee saw fit to copy to the Court by fax, Mr Lee had not indicated to us at any time before the hearing that he would consent to the dismissal of the appeal.  Had he done so, we would have directed him to file a Request for Dismissal in accordance with Section I of Practice Direction 4.1. On the contrary, in a letter of 9 June 2017 addressed to the trustees, he asked for leave from them “to continue with this appeal”.

9.  In the circumstances, there cannot be any complaint by Mr Lee as to the listing of the appeal for dismissal on 22 June 2017.

10.  Whilst Messrs Hobson & Ma did write to the Court on 13 June 2017 indicating that the Respondent sought to be excused from attendance, the Court did not make any direction in that regard.  Further, Mr Lee had written further letters and copied the same to the Court between 13 and 22 June 2017.

11.  In any event, as we said at [9] of the judgment of 22 June 2017, the Respondent must obtain leave from the bankruptcy court before it can proceed with the taxation of costs.  Mr Lee will have the opportunity to address the bankruptcy court in such leave application if the Respondent did make such application.

12.  Hence, we cannot see any arguable point in respect of the costs order, not to mention any point of great general or public importance.

13.  For these reasons, the Notice of Motion of 20 July 2017 is dismissed. The Respondent did not lodge any submissions in the motion.  Hence, we shall not make any order for costs in respect of the Notice of Motion.