MASSMUTUAL ASIA LTD v. LO PUI SUN

HCMP1500/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO.1500 OF 2004

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J U D G M E N T

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Hon Waung J (giving the Judgment of the Court):

1. On 18 May 2004, District Judge To entered Summary Judgment in the sum of HK$209,669.98 together with interest thereon (“Judgment”) for the Plaintiff against the Defendant.

2. On 31 May 2004, District Judge To refused the application of the Defendant for leave to appeal to the Court of Appeal against the said Judgment.

3. Notwithstanding the refusal of District Judge To for leave to appeal to the Court of Appeal, the Defendant was at liberty (within time) to apply to the Court of Appeal for leave. The Defendant however was out of time to seek leave from the Court of Appeal and the Defendant’s application for leave to appeal to the Court of Appeal out of time was dismissed by Yeung JA on 21 June 2004.

4. The Defendant now renews his application for leave to appeal out of time.  We are not satisfied that leave to appeal out of time should be granted.

5. We cannot see any arguable ground in support of an appeal from the Judgment. The Judgment was based on an undisputed provision of an undisputed Contract whereby the Plaintiff was given the right (upon termination of the Contract) to recover from the Defendant money paid by the Plaintiff to the Defendant during the period of Contract in the form of Special Allowance.  The lawful termination of the Contract was clearly found by the District Judge and there cannot be any dispute that the Plaintiff upon such lawful termination was given the right to recover the Special Allowance paid. That form of contract might be said to be harsh but that is the norm in the insurance industry. The Defendant’s main complaint is that he focused on Group performance and neglected his Personal performance and that it was therefore unfair to him for the Plaintiff to terminate the Contract. This is an argument without substance because the Defendant never disputed that he knew the contents of the Contract which was binding on him.

6. In the circumstances, it is not necessary for us to inquire if there was a good justification for the delay in seeking leave to appeal from this Court.

7. The renewed application of the Defendant for leave to appeal out of time is therefore dismissed.