YSYM v. LHB

HCMP 1514/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1514 OF 2014

(ON AN INTENDED APPEAL FROM FCMC NO. 19025 OF 2012)

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1.  On 23 September 2014, the Court of Appeal (Kwan & Chu JJA) handed down the decision dismissing the respondent’s application for leave to appeal to the Court of Appeal against the judgment of HH Judge Bruno Chan given on 11 February 2014 with costs. The Court of Appeal also refused his application to stay the order in the Judgment pending appeal.

2.  In the decision, the Court of Appeal indicated that it agrees with the Judge’s decision and his reasons and further gave reasons for its conclusion that the respondent’s intended appeal does not have reasonable prospects of success and that there is no other reason in the interests of justice why the appeal should be heard.  

3.  The Court of Appeal further ordered under Order 59 rule 2A(8) of The Rules of the High Court, Cap. 4A that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

4.  On 15 October 2014, the respondent filed a summons applying for leave to appeal to the Court of Final Appeal against the judgment of the Judge and the decision of the Court of Appeal.

5.  Order 59 rule 2A(8) provides:

“Where the Court of Appeal determines the application on the basis of written submissions only, it may, if it considers that the application is totally without merit, make an order that no party may under paragraph (7) request the determination to be reconsidered at an oral hearing inter partes.”

6.  As a result of the order of 23 September 2014, the respondent cannot request for a reconsideration of his application for leave to appeal against the Judge’s judgment.

7.  Further, section 14AB of the High Court Ordinance, Cap. 4 provides:

“No appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.”

8.  The decision of the Court of Appeal refusing leave to appeal is therefore final. 

9.  In the premises, the respondent ought not to have filed the summons.  Accordingly, the summons should be struck out. And I so order.