PONOMAROVA OLENA v. MASTER KENT YEE, DEPUTY REGISTRAR OF THE HIGH COURT

CACV 313/2022, [2024] HKCA 83

On Appeal From [2022] HKCFI 2243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2022

(ON APPEAL FROM HCAL NO 249 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 7 November 2023, this Court gave its judgment (“the CA Judgment”) dismissing:

(1)  the Applicant’s appeal against the order of Coleman J dated 26 July 2022 refusing to grant her leave to apply for judicial review of the decision of Master Kent Yee dated 25 January 2022 dismissing her legal aid appeal; and

(2)  the Applicant’s 3 summonses filed on 28 October 2022, 11 September 2023 and 18 September 2023 respectively seeking leave to (i) admit new evidence, and/or (ii) rely on a Supplemental Notice of Appeal, in support of her appeal.

2.  By Notice of Motion dated 4 December 2023, the Applicant applied for leave to appeal the CA Judgment to the Court of Final Appeal. In a document attached the Notice of Motion dated 4 December 2023, the Applicant set out the following intended grounds of appeal:

(1)  misdirection on facts and evidence by Coleman J, and further perpetuation of such misdirection by the Court of Appeal;

(2)  interpretations and applications of the exclusive jurisdiction of the Labour Tribunal over employment relationships under the Labour Tribunal Ordinance;

(3)  decision-making process of the Labour Tribunal (including the management of claims, its jurisdiction and transfer of cases);

(4)  constructive termination of her employment and due process; and

(5)  negligence and ultra vires action on the part of Master Kent Yee, the Director of Legal Aid and their legal representatives.

3.  In accordance with the usual practice under paragraph 3 of Practice Direction 2.1, the Notice of Motion is determined on paper, notwithstanding the Applicant’s request for an oral hearing of the application.

4.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion.

6.  Other than background information, the matters raised in the Applicant’s written submissions dated 22 December 2023 and reply submissions dated 12 January 2024 are essentially repetitions of the arguments previously advanced by her but rejected by the Court of Appeal. The Applicant’s allegation that the Court of Appeal has “perpetuated” the misdirection on facts and evidence by Coleman J is a bare allegation without particulars. The Applicant has not raised any viable ground of appeal against the CA Judgment. The intended appeal based on the matters raised in the Notice of Motion has no merits and no reasonable prospect of success.

7.  There is also no basis to grant leave to appeal based on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

8.  For the above reasons, the Notice of Motion is dismissed with costs to the Putative Interested Party. The costs claimed by the Putative Interested Party in the costs statement dated 5 January 2024, in the amount of HK$11,197, are reasonable, and are allowed in full upon summary assessment.

9.  Lastly, in view of the dismissal of the Notice of Motion, there would be no reason to grant any stay of execution of the order of the Court of Appeal dated 7 November 2023 or any subsequent costs order(s) made by the Court of Appeal. Accordingly, the Applicant’s application for stay of execution is refused.