CHEUNG SAU CHU ROSANNA v. 魯珉軒 AND OTHERS

HCPI 497/2020

[2024] HKCFI 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 497 OF 2020

________________________

________________________

____________________

DECISION

____________________

1.  On 13 October 2023, this court handed down decision in respect of the plaintiff’s appeal against the master’s decision (“the Decision”). She seeks leave to appeal against the Decision. At the hearing on 12 December 2023, and pursuant to the plaintiff’s request, this court adjourned the application to be disposed of on paper, and for that purpose gave direction for the lodging of written submissions.

2.  The same definitions and abbreviations in the Decision are adopted for the present purpose.

3.  The background and contentions of the parties discussed in the Decision will not be repeated here.  Suffice to recapitulate that the appeal against the 1/6/2023 Order, albeit out of time, was argued and considered mainly on its merits.  There was no proper application before the master for relief against sanction for non-compliance with the unless order dated 20 April 2023 in respect of the filing of her reply.  Even assuming that her representation at the hearing before the master on 1 June 2023 were to be entertained as an application for relief against sanction, this court found that there would have been no justification for granting the relief.  This would have been the same conclusion of this court, had such an application been before this court. Further, the plaintiff’s application for production of documents was misconceived.  Insofar as the plaintiff was seeking recusal of the master from the case, this court found that she suffered from the lack of formal application before the master and therefore no order which could be appealed and heard by this court.  Even assuming this court were to entertain such an application of the plaintiff in the first instance, such application would have been devoid of merit.

The intended appeal

4.  By her summons filed on 26 October 2023 (“the Summons”), the plaintiff applies for:

(1)  the Decision be “set aside”;

(2)  the order of this court made upon the Decision be stayed;

(3)  “review hearing” of the appeal under O58, RHC;

(4)  leave to appeal to the court of appeal;

(5)  leave to file statement of objections to the statement of costs of the 4^th and 5^th defendants.

5.  As pointed out in the written direction dated 7 December 2023, (1) and (3) above are misconceived as there is no such procedure in respect of the Decision or the Order.  The plaintiff may seek leave to appeal against the Decision/Order, which is indeed (4) above. Further, (5) above cannot be revisited in view of §42 of the Decision.

6.  As mentioned, the plaintiff sought adjournment of the hearing of the Summons.  However, the hearing on 12 December 2023 was maintained, and after hearing the parties, this court adjourned the substantive argument and determination pending written submissions.

Leave to appeal

7.  Section 14AA(1) of the High Court Ordinance, Cap 4, provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

8.  The principles are trite.  A reasonable prospect of success must be more than ‘arguable’ or ‘not fanciful’ though without having to be ‘probable’: see SMSE v KL [2009] 4 HKLRD 125; Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515.  In respect of case management decisions, the appellants faces a very high hurdle and has to show that the court below had gone clearly wrong: see for instance Mimi Kar Kee Wong Hung v Severn Villa Ltd [2012] 1 HKLRD 887.

9.  In her submissions, the plaintiff complained that the hearing of her present application proceeded without opportunity for her to adduce transcript of the hearing in August before this court.  This is not material as what happened during that hearing is a matter of actual knowledge of this court and the parties.

10.  None of the plaintiff’s written submissions suffices to discredit the consideration by this court of the propriety of the case management directions given by the master under the 1/6/2023 Order (summarised in §4 of the Decision), when one takes in account the procedural history as explained in the Decision.  Nor is there fair basis for arguing that relief against sanction under the unless order dated 20 April 2023 should have been granted, even assuming that such an application were before the master on 1 June 2023 or this court on appeal from the master.  There is hardly reasonable prospect of success in the intended appeal against.

11.  In her submissions, the plaintiff suggests that she was not seeking recusal of the master from the case but “only to seek to change the master”.  The attempt to differentiate the descriptions is pure semantics.  Again, the plaintiff complains about lack of opportunity to adduce the transcript(s) of the proceedings before the master(s) to make good her point.  However, her written submissions do not suffice to impeach the reasoning in this court’s discussion in respect of the recusal issue, which this court considered notwithstanding (as explained in the Decision) the lack of proper basis for asking this court to do so. Importantly, there is no reasonable prospect of satisfying the appellate court that this court was wrong in applying the principles in respect of recusal of tribunal as explained in the Decision in considering the master’s exercise of case management discretion based on what were the objective procedural history and circumstances actually before her.

12.  For completeness, this court will address the plaintiff’s attempt to challenge the summary assessment of costs under the Decision as if it is an application for leave to appeal against that.

13.  The statement of costs provided by government counsel for the 4^th and 5^th defendants for the hearing in August 2023 was simple and straightforward.  They only charged for 5 items of professional work.  There was no question of inability of the plaintiff to read the statement due to language barrier.  This court actually explained the same item by item in Chinese to the plaintiff.  After that, she did make representation regarding the specific items.  This court did not see the need, as there was neither rule nor norm requiring the court, to adjourn the summary assessment for written comments by the paying party (let alone for 14 days as the plaintiff now suggests) in circumstances such as these.  Making appropriate deduction from the billed amount but factoring in the increase necessitated by the actual hearing time (as pointed out during the hearing), this court came to the assessed sum of HK$25,000 (which was still less than the billed amount). The complaint of the plaintiff about this court’s exercise of discretion as to costs is without merit.

14.  The application for leave to appeal therefore is refused.

Stay

15.  An appeal does not operate to stay the order being challenged.  This is the case of an appeal against the master’s decision to the judge: see O58, r1(4), RHC as well as the case of an appeal from the judge to the Court of Appeal: see O59, r13(1), RHC.  It follows from the refusal of leave to appeal that there exists no basis for the consideration of stay of the order of this court made upon the Decision.

Order

16.  The Summons is dismissed.

17.  I make a nisi order that the plaintiff shall pay the costs of the 4^th and the 5^th defendants occasioned by the Summons.  In the absence of application in 14 days to vary, the nisi order will become absolute without further order, upon which the 4^th and the 5^th defendants do lodge and serve their statement of costs within 7 days, and the plaintiff may lodge her written comment on the statement (limited to 1 page) within 7 days thereafter.  Costs will be summarily assessed on paper afterwards.

18.  At the end of the hearing on 12 December 2023, this court awarded the 4^th and the 5^th defendants their costs occasioned by the plaintiff’s application for adjournment, which was summarily assessed at HK$6,000 on the basis of the then handwritten statement of costs of government counsel.  This court made it clear that the costs of and occasioned by preparation in answering the Summons were then not included, as those are not wasted and should now fall to be assessed pursuant to the above costs order.

19.  The 2^nd and 3^rd defendants were present but took no positive stance and made no submission.  There is no order as to costs between them and the plaintiff.