RE JAMES HENRY TING

HCMP 2136/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2136 OF 2013

(ON AN INTENDED APPEAL FROM HCB 7809/2012)

________________________

________________________

_______________

J U D G M E N T

_______________

Hon Cheung CJHC (giving the judgment of the court):

1.  This is an application for leave to appeal from Ng J’s refusal of the debtor (Mr Ting)’s application for leave to be cross‑examined on his evidence by video conferencing facilities for reason of ill health, and of his application for leave to file and serve an affirmation to exhibit an expert psychiatric report (by Dr Chen) in support of his claim of ill health. The application for leave to appeal to challenge the latter refusal was made out of time.

2.  The decisions under challenge were discretionary case management decisions of the judge.  As a matter of general principle and for very good reasons, case management decisions can only be challenged on appeal in very exceptional circumstances.

3.  We have read the reasons given by the judge for his decisions.  We have also considered the respective submissions of the parties for the leave application.  We are not persuaded that the judge’s discretionary decisions are challengeable on appeal.

4.  The judge has certainly not misunderstood the law.  Nor, in our view, has this court’s recent decision in Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822 established anything new in terms of the proper approach to a request for giving evidence via video link.  As for its actual decision, like all other decisions, the case was decided on its own facts.  All we need say is that the debtor’s alleged condition, even taken into account Dr Chen’s report, is far removed from the condition of the 1^st defendant in Daimler AG, and the facts of these two cases cannot be more dissimilar. The judge made a similar point below.

5.  The judge was fully entitled to take into account the factors that he mentioned in his reasons.  In particular, he was entitled to take a very dim view, particularly in this post‑CJR era, of the delay involved in the present case and the lack of adequate and satisfactory explanation for the same.  This applies both to the application for taking evidence via video link and the last minute attempt to introduce the report of Dr Chen.

6.  We find nothing wrong with the judge’s approach or his reasons.  We also agree with the submissions of the petitioner made in opposition to the application for leave to appeal.  There is simply no room to interfere with the judge’s exercise of discretion.

7.  The application for leave to appeal (and all ancillary applications) are therefore dismissed with costs, summarily assessed at $60,000, to the petitioner.  Pursuant to Order 59 rule 2A(8), we make an order that the debtor may not request our determination of this application to be reconsidered at an oral hearing inter partes, as we consider that the application is totally without merit.