KONG COLIN CHUNG PING AND ANOTHER v. KONG WING ON AND OTHERS

HCMP 2045/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2045 OF 2012

________________

______________________

REASONS FOR DECISION

______________________

1. This is the first and third defendants’ application for leave to appeal the decision of this court refusing to admit the affirmation of Chan Kam Pui Rose filed on 24 December 2014 (“the Chan affirmation”) into evidence for the substantive hearing. At the conclusion of the application leave was refused. My reasons appear below.

2. The issue for determination at the hearing of the originating summons was the validity or otherwise of two tenancy agreements.  The background to the filing of the Chan affirmation can be found in paragraphs 17 to 21 of the judgment dated 10 March 2014 to which reference should be made.  The first defendant is entitled as of right to appeal the substantive order and has already filed a notice of appeal.

3. The decision not to admit the Chan affirmation was exclusively one of case management.  It had been made clear that the scheduled hearing date of the originating summons of 25 February 2014 was a milestone date and that leave granted at the adjourned hearing held on 26 November 2013 upon the first defendant’s request to file a further affirmation was on the basis that it would not raise controversial issues of disputed fact.

4. Paragraph 4 of the order dated 26 November 2013 reads:

“If the further affidavits raise issues of disputed fact, they shall not be admitted into evidence …”

5. The first proposed ground of appeal states:

“that the Affirmation or at least paragraphs 15 to 19, 21 and 26 thereof in so far as they set out how the two tenancy agreements and the various related documents were executed and kept formed an integral part of the 1^st defendant’s case on the validity of the tenancy agreements, and the 1^st defendant is appealing as of right on the Declaratory Judgment that the tenancy agreements are invalid, for it and/or unenforceable.”

6. The principles on granting leave to appeal are well-settled.  A party seeking to overturn a case management decision faces a very high hurdle: see Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1HKLRD 887 at § 31.  In the present case, the prospects of the first defendant being able to surmount that high threshold appear remote.

7. At the hearing, Mr Chain who appeared for the first and third defendants did not seek to argue that the whole of the Chan affirmation should be admitted into evidence. Rather he argued that leave to appeal be granted in so far as the court’s ruling did not allow into evidence paragraphs 19, 21 and 26 of the Chan affirmation.  This represented  a retreat from the first proposed ground as stated above.

8. It is common ground that there was no appeal from the November order.  Paragraph 4 of that order is a comprehensive order: once disputed issues of fact are raised, that affidavit is to be excluded.  Nothing in the November order envisaged “cherry picking” or “blue penciling”. 

9. While it was suggested that how the documents were kept after execution forms an integral part of the first defendant’s case, it is unclear how the paragraphs identified can advance the first defendant’s case.  In my view, it is highly unlikely that the substantive appeal would not proceed if the present leave application were to fail.

10. In so far as it was submitted that the court erred on the joint and/or common interest privilege point or that there are important points of law involved in Russell v Jackson which should be looked at by the Court of Appeal in the “interest of justice”, the decision did not involve any ruling on the issue of privilege.  Rather, as earlier mentioned, it was grounded exclusively on case management.

11. Further, even if the first defendant were to obtain leave to appeal, the issue for the Court of Appeal would be whether this court was clearly wrong in making the case management decision.  Privilege will not arise for consideration absent a respondent’s notice from the plaintiffs or the 2^nd defendant.

12. Finally, the fact that the substantive appeal is going ahead does not mean that the court can ignore the leave requirement for interlocutory appeals: see Jose Miranda Da Costa Junior v Lorenzo Yih, also known as Yu Chuan Yih, unreported, HCA 156/2010, 28 April 2014.

13. For those reasons, I am not persuaded that leave should be granted.