RE LAU KAM SING DICKIE

CACV 330/2019, [2023] HKCA 883

On appeal from [2019] HKCFI 1855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 330 OF 2019

(ON APPEAL FROM HCB NO 2311 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the debtor’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 4 April 2023 (“CA Judgment”)[1], in which the debtor’s appeal against the bankruptcy order made by Au-Yeung J dated 24 June 2019[2] was dismissed.

2.  The background in brief is that the debtor failed to repay the principal sum of $8 million and interest of $704,000 under a loan agreement. The petitioner served a statutory demand on the debtor personally and subsequently issued a bankruptcy petition against the debtor based on the statutory demand. The debtor filed a notice to oppose the petition stating that he intended to contend that the petitioner is a money lender without a licence but did not file any evidence prior to the hearing before Au-Yeung J, sitting as a bankruptcy judge. The judge refused to adjourn the hearing for the debtor to file an affirmation in opposition and made a bankruptcy order on 24 June 2019.

3.  The debtor is acting in person and has acted as such in the appeal. Both parties have lodged written submissions pursuant to Practice Direction 2.1. Having considered the submissions and the papers, we think it is appropriate to determine the application on paper and proceed to do so.

4.  In the notice of motion filed on 2 May 2023, the debtor raised three grounds under the “otherwise” limb in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, which are as follows:

(1)  the Court of Appeal erred in law in refusing the debtor’s application by summons dated 8 September 2020 for leave to adduce new evidence in his appeal;

(2)  the Court of Appeal was wrong in principle in refusing to exercise its discretion to interfere with the judge’s exercise of discretion that had been made under a mistake of law, in disregard of principle and under a misapprehension as to the facts; and

(3)  the Court of Appeal was wrong in principle in refusing to exercise its discretion in favour of the applicant to adduce new evidence.

5.  Grounds (1) and (3) above and a large part of the debtor’s skeleton submissions concern the Court of Appeal’s refusal to grant leave for him to adduce new evidence in his appeal[3]. As the Court of Appeal had already dismissed his notice of motion for leave to appeal to the Court of Final Appeal against the refusal of leave to adduce further evidence on 8 July 2022, it is an abuse of process to reargue these grounds and submissions. These grounds and submissions will not be considered by the Court of Appeal again in this application.

6.  Ground (2) essentially concerns the judge’s refusal to grant an adjournment of the petition hearing, her conclusion that there was no arguable issue of law raised by the debtor’s solicitor and that the debtor could not possibly demonstrate, or demonstrate a bona fide dispute on substantial grounds, that the creditor was a money lender if he were allowed to file evidence. The debtor seeks to re-argue the contentions and points which had been canvassed in the appeal and rejected for the reasons as stated in the CA Judgment. We were not persuaded that the judge’s assessment the debtor was unlikely to be able to make out an arguable case that the creditor was a money lender was plainly wrong or outside the generous ambit within which a reasonable disagreement is possible and concluded that there is no basis for appellate intervention of her exercise of discretion in refusing an adjournment[4].

7.  We are not satisfied that exceptional circumstances are made out to warrant granting leave to appeal on the “or otherwise” limb. In any event, it is a settled practice of the Court of Appeal to defer to the Appeal Committee of the Court of Final Appeal in respect of any question as to whether leave to appeal should be granted on the “or otherwise” limb. There is no good reason to depart from this practice in the present case.

8.  Lastly, although the debtor asserted in his submissions (but not in the notice of motion) that his intended appeal also involved a question of great general or public importance[5], he did not identify any question that could be said to be of great general or public importance in his notice of motion or skeleton submissions. He merely contended that if he were allowed to adduce new evidence, the consideration of the evidence to be adduced will make clear what constituents or elements of a money lender’s activities conducted by a person will make him fall within the definition of a money lender in the Money Lenders Ordinance, Cap 163, the determination of which will have significant bearing on the public interest, and the removal of “grey area” loan granting activities could be suppressed and would lead to better administration of the Money Lenders Ordinance.

9.  It is hypothetical if any question of great general or public importance would arise in the intended appeal, as this is premised on the debtor being allowed to adduce new evidence, which we are not satisfied that he should be permitted to do. Besides, the evidence to be considered in this particular instance would be fact-sensitive and it is difficult to envisage how this may give rise to any question of law of great general or public importance.

10.  For all the above reasons, as the conditions for granting leave to appeal under section 22(1)(b) are not met, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 2 May 2023.

11.  Costs of this application should follow the event. The petitioner filed a statement of costs seeking costs in the total sum of $80,910. Taking into account the lengthy submissions of the debtor[6], the costs sought by the petitioner appear to be reasonable. We order the debtor to pay the petitioner’s costs assessed summarily at $80,910.