TANG CHI YUEN v. 陳金洪TRANSLITERATED AS CHAN KAM HUNG AND OTHERS

HCMP 3085/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3085OF 2016

(ON AN INTENDED APPEAL FROM DCCJ NO 674 of 2016)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  This is an application for leave to appeal against the refusal of Deputy District Judge Chow [“the Judge”] to grant summary judgment to the Plaintiff in DCCJ 674/2016. The dispute between the parties relates to the validity of a resolution of the Lantau Taxi Association which suspended its radio service to the Plaintiff on account of his promotion of an App for taxi services. By an Order 14 summons of 9 March 2016, the Plaintiff sought summary judgment for declaratory and injunctive relief. The summons was heard on 13 July 2016 and the Judge handed down her decision on 10 August 2016 dismissing the same. She granted unconditional leave to the Defendants to defend the claims and ordered the Plaintiff to pay the costs of the summons.

2.  The Plaintiff sought leave to appeal and leave was refused by the Judge on 4 November 2016 except in respect of her order for costs, which she accepted to be wrong.  She accepted that the correct order for the costs of the summons should be costs in the cause of the action.

3.  The Plaintiff renewed the application for leave in respect of the other grounds before us.

4.  Though Mr Lam relied on several grounds on behalf of the Plaintiff to support the renewed application, the crucial question in our view is whether there are any triable factual issues in the present case concerning the validity of the resolution.  If there are such issues (and the Judge held there are), the dispute cannot be resolved by the summary procedure under Order 14. 

5.  In respect of an appeal against a refusal to grant summary judgment, this court has repeatedly said that we would only intervene in exceptional circumstances when unconditional leave to defend has been granted on points of fact: see Treewell Development v Tsang Chun Wah [2003] 4 HKC 401; Xpoly Recycling Ltd v Gold Leader Enterprises Ltd [2011] 4 HKLRD 230.  In the former case, Ma JA (as the Chief Justice then was) said at [10] and [11],

“ 10. Where a judge has made an order giving unconditional leave to defend on the basis there are triable issues of fact, it will be an exceptional case before an appellate court … will disturb this order …

11. The approach is different when questions of law are concerned since the views of the court below are either correct or not correct, whereas his views on facts are by their nature capable of a wider spectrum of correctness or reasonableness. Where a judge has arrived at a reasonable view of the facts, the Court of Appeal will rarely disturb the result.”    

6.  In the present case, there is a minute of the meeting of 26 January 2016 at which the resolution was passed.  There is also a document bearing the signatures of 83 members endorsing the resolution.  Mr Lam suggested that those members only subscribed to the resolution after it had been passed.  Counsel also invited the court to draw the inference that it must be so since they were said to be signed “as a result” of the letter from the Plaintiff of 26 January which was only sent by post on 28 January 2016.

7.  In our judgment, the important question is whether a case of breach of Article 22 of the articles of association had been made out.  That article provides that upon written request of 50% of all the members, the Committee may suspend the radio services provided to a member if amongst other things, he acted to the prejudice of the Association’s interest.

8.  Whilst the point made by Mr Lam could afford some grounds for cross-examining the Defendants, we are of the view that the Judge was entitled to conclude that whether such written request had been made before the passing of the resolution is a triable issue in light of the evidence.  The same can be said with regard to the factual disputes on whether the Plaintiff had acted in a manner which was prejudicial to the interest of the Association.

9.  Mr Lam also relied on the proposition that the Association should give the Plaintiff an opportunity to answer before passing the resolution, citing Baroness Baillieu v FCC [2009] 5 HKLRD 557 and Chan Ho Har Wane v Clearwater Bay Golf and Country Club [1992] 2 HKC 604.

10.  It is a question of fact whether the Plaintiff had been given a fair opportunity in the circumstances of this case.  There are disputes of fact as to what had happened between 28 December 2015 and 28 January 2016.  The Judge was entitled to take the view that such disputes should not be resolved on affirmation evidence alone.

11.  In short, we agree with the Judge that the issues could not be resolved by an Order 14 application.  Having come to this conclusion, the intended appeal has no reasonable prospect of success and we do not see any other reason why leave to appeal should be granted.  We therefore dismissed the summons of 8 November 2016 with costs.

12.  Having heard counsel, we fixed the costs payable by the Plaintiff to the Defendants at $40,000.

13.  As for the appeal on costs, since the judge indicated in her decision on leave that the order should be costs in the cause of the action and it is not controversial, it could be dealt with by way of undertaking (see Leung Lai kwan v Lo Kai Wing HCMP 1554 of 2015, 20 Aug 2015).  Mr Wong on behalf of his client undertook to proceed on the basis that the order for costs of the Order 14 application in the court below be costs in the cause.  Mr Lam agreed to such a course.  In such circumstances, there is no need for the parties to go through a formal appeal on that issue involving unnecessary costs and time.