PROGETTO JEWELLERY CO LTD v. LAU CHIU YING AND ANOTHER

HCA 2548/2014

[2020] HKCFI 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2548 OF 2014

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(by original action)
________________________

(by counterclaim)
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REASONS FOR DECISION

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1.  On 22 January 2020, this Court handed down a judgment in favour of PJ and against Joy and JD (“the Main Judgment”) [1]. Neither Joy nor JD lodged an appeal against the Main Judgment within the time prescribed in Order 59 rule 4(1)(c). On 21 May 2020, Joy personally sought leave to appeal the Main Judgment out of time[2]. On 12 June 2020, I heard Joy’s application for leave to appeal (“the Leave Hearing”). On the same date, I handed down a written decision, in which I dismissed Joy’s application (“the Time Decision”) [3]. On 22 June 2020, Joy made an application to the Court of Appeal for leave to appeal against the Time Decision (CAMP 61/2020). On 7 July 2020, Joy took out a summons for stay of execution of the order against her in the Main Judgment pending the determination of her application in CAMP 61/2020 (“the Stay Application”). On 3 August 2020, I heard the Stay Application. At the end of the hearing, I dismissed the application with costs to PJ, and summarily assessed those costs at HK$38,000. These are the reasons for the decision. These reasons should be read together with the Main Judgment and the Time Decision[4].

2.  The principles concerning stay of execution have been succinctly summarized by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd[5].  The matters to be borne in mind include the following:

(1)  The burden is on the party seeking a stay to make out a positive case to justify the indulgence, not for the successful party to justify why a stay should not be granted.

(2)  The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay.  If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.

(3)  Even if the court is satisfied that there is an arguable appeal, the appellant must provide additional reasons as to why a stay is justified.

(4)  If the suggested additional reason is the possibility of the appeal being rendered nugatory, it is incumbent upon the appellant to provide evidence to substantiate it.  Where it is said that the levying of execution would result in financial ruin or serious financial consequences for the appellant, the court will require good evidence to support this contention, such as the production of accounts or other documents to justify the assertion.  A bare assertion is unlikely to meet with much sympathy where more substantial evidence is available.

3.  In the Time Decision, I have given reasons as to why I refused Joy’s application for leave to appeal out of time.  In CAMP 61/2020, Joy made an affirmation dated 22 June 2020, in which she exhibited lengthy written grounds of appeal against the Main Judgment (“the Written Grounds”). It is important to bear in mind that Joy only put forward grounds of appeal against the Main Judgment on 22 June 2020, and there was no ground of appeal proposed by Joy in the Leave Hearing or at any time prior to that hearing.

4.  Having considered everything said by Joy in writing and in her oral submissions, I am not persuaded that I have erred in any aspect in the Time Decision.

5.  Further, having considered the Written Grounds, I am of the view that Joy has not shown reasonable prospects of success in her intended appeal against the Main Judgment.

(1)  In order to succeed in challenging the factual findings made by the trial judge, the appellant has to overcome a very high threshold.  The Court of Appeal would not set aside the factual findings made by the trial judge unless the findings are plainly wrong[6].

(2)  While large scale copying from counsel’s submissions is not a practice endorsed by the Court of Appeal, the crucial questions are (a) whether the trial judge had exercised his independent judgment over the matter; and (b) whether adequate reasons were given by the trial judge in the judgment for coming to his decision[7].

(3)  Whether or not interventions by a trial judge during the course of evidence is excessive depends on the circumstances of the case, the context and nature of the interventions.  Interventions made for the purpose of clarifying a party’s case and evidence are legitimate.  The trial judge may also make his concerns known so that counsel can properly deal with them[8].

(4)  An appellant cannot succeed in a civil appeal by pointing to any fault or blameworthiness on the part of the legal team representing him at the trial.  His remedy lays in proceedings in negligence against the legal representatives and not in an order for a retrial.  The court system would grind to a halt if an unsuccessful litigant could obtain an order for a retrial by relying upon the negligence of his own legal representatives, not to mention the injustice of depriving the successful party of a judgment in his favour after a full trial[9].

(5)  Unpleaded issues and points not supported by evidence cannot be pursued in the appeal.

(6)  Notwithstanding the lengthy Written Grounds put forward by Joy, I am not persuaded that I have not exercised independent judgment and have not given adequate reasons in the Main Judgment.  The Main Judgment would speak for itself.

(7)  I am also not persuaded that I have made excessive or impermissible interventions in the trial.  Counsel representing Joy at the trial did not make any complaint at any time that this Court had made excessive or impermissible interventions.

(8)  The challenges in Grounds 1-3, 6, 8-10 are challenges against the factual findings made by me as the trial judge after seeing and hearing the evidence.  I am not persuaded that Joy has demonstrated a reasonable prospect of success in overcoming the very high threshold required in those challenges.

(9)  In relation to Ground 3, Joy (legally represented at all times until 2 days after the handing down of the Main Judgment) had not suggested that any expert evidence on trade practice or trade custom was required.

(10)  Ground 4 relates to my decision not to entertain Joy’s unpleaded argument.  There is no reasonable prospect of success in this ground.

(11)  Ground 5 has no merit.  Apart from the CCTV records mentioned in the Amended Agreed Facts and the Agreed CCTV Events, I have also seen some CCTV recording during the trial.  Save and except the CCTV records mentioned in the Amended Agreed Facts, the Agreed CCTV Events and the CCTV recording viewed during the trial, counsel representing Joy at the trial did not in their final submissions suggest that some other CCTV recording or any audio recording might have a material impact on the outcome of the trial.

(12)  Ground 7 primarily relates to some case management decisions, which would rarely be overturned by the Court of Appeal. 

(13)  Ground 10 concerns the fact that no specific discovery had been pursued by Joy before the trial.  I raised my concern on this point at the final submissions stage and sought assistance from the counsel representing Joy at that time, but counsel could not offer any answer, let alone a satisfactory answer[10]. Joy now alleges that she had made an application for specific discovery, but she withdrew the application at a later time under the misguidance by her lawyers. Even if this allegation is true, that would not constitute a good ground of appeal.  See the principle in subparagraph (4) above.

6.  Even if I were of the view that Joy has an arguable appeal against the Main Judgment and has a reasonable chance of success in obtaining leave to appeal out of time from the Court of Appeal, I would only grant a stay of execution upon the condition that Joy should pay all the sums due to PJ under the Main Judgment into court within 14 days, and the stay would only take effect after the sums are paid into court. 

(1)  Joy claims that if there is no stay of execution, she may have to raise money to pay the judgment sums by selling her business and properties.  If she eventually succeeds in setting aside the Main Judgment, even if she can get back the money from PJ, she may not be able to buy back the business and the properties.  This is a real prejudice to her.  In my view, all these are bare assertions with no particular.  Joy has not disclosed her financial situation and the details of the business and the properties owned by her.  In the absence of all these particulars, I would not attach much weight to the prejudice alleged by Joy.

(2)  Joy also claims that if the judgment sums are paid to PJ, PJ may use part of the judgment sums to pay its legal fees in these proceedings.  If she eventually succeeds in setting aside the Main Judgment, she may not be able to recover all the judgment sums from PJ.  In my view, this aspect would be sufficiently taken care of if the judgment sums are paid into court. 

(3)  PJ mentions that it may potentially be prejudiced by a stay, for PJ has been relying on the Main Judgment to proceed against Joy in HCA 231/2019, in which PJ has made a claim against Joy based on s.60 of the Conveyancing and Property Ordinance.  Joy may use the stay as an excuse to delay HCA 231/2019.  In my view, PJ’s concern is understandable.

(4)  Taking into account all the aforesaid, if Joy has an arguable appeal, the right balance would be a stay of execution upon the condition that Joy has to pay all the judgment sums into court.

7.  I concluded that Joy had not demonstrated a reasonable chance of success in CAMP 61/2020, and hence I dismissed the Stay Application at the end of the hearing.

8.  I thank counsel for the assistance rendered to the Court.