TSO MAN KUEN JASMINE v. POON CHUK HUNG

DCCJ 1379/2023

[2024] HKDC 2148

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1379 OF 2023

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DECISION

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Introduction

1.  On 7 June 2024, Master Y H Chan dismissed the Plaintiff’s applications for summary judgment, interim payment and consequential reliefs.

2.  By the Decision dated 2 September 2024 (see [2024] HKDC 1467), I dismissed the Plaintiff’s appeal against Master Y H Chan’s decision with costs.

3.  In my view, the Plaintiff’s applications for summary judgment and interim payment are liable to be dismissed. For the reasons elaborated in my Decision, I am of the view that:-

(1)  The Plaintiff has failed and/or refused to fulfill the mandatory requirements under Order 14, rule (1) by confirming on oath that the Defendant has no defence to her claims and that the facts pleaded in the statement of claim are correct (see my Decision, para 8).

(2)  It is not open to the Plaintiff to seek summary judgment based on an unpleaded cause of action, namely fraudulent misrepresentation (see my Decision, para 9).

(3)  There are plainly issues to be tried in the present proceedings, and at this stage the Court is not in a position to resolve the grave accusations raised by the Plaintiff, such as hacking files in computer (see my Decision, para 10).

(4)  Having said that the factual disputes between the parties can only be resolved at trial, the Court is unable to conclude that the Plaintiff’s claim would succeed at trial. As such, such no interim payment should be ordered (see my Decision, paras 12 to 16).

4.  On 15 October 2024, the Plaintiff took out a summons (the “Summons”). She asks that:-

(1)  leave to be granted to appeal against my Decision out of time;

(2)  the costs order under my Decision be “cancelled” first; and

(3)  the Court should consider referring the present case to the Police for criminal investigation.

5.  At the present hearing, the Plaintiff acts in person, whereas Mr Bernie Yim represents the Defendant.

Leave to Appeal Out of Time

6.  Pursuant to order 58, rule 2(4)(c) of the Rules of District Court (Cap 336H), an application for leave to appeal against a judge’s interlocutory judgment, order or decision shall be made within 14 days.

7.  There is no question that the Plaintiff’s application for leave to appeal was made out of time. Whilst my Decision was made on 2 September 2024, the Plaintiff did not take out the Summons until 15 October 2024.

8.  As Lam VP (as Lam PJ then was) pointed out in The Hongkong and Shanghai Banking Corporation Ltd v Sy Shu Wu & Ors [2018] HKCA 736 at paras 8-10:

“8. This Court has discretion to grant or refuse an extension of time for appealing. The court’s approach in this type of application is well established. The factors normally taken into account are:

(1) the length of the delay;

(2) the reasons for the delay;

(3) the chances of success of the intended appeal; and

(4) the prejudice to the other party if time is extended.

9. Where the delay is inexcusable, the party seeking an extension of time must show a real prospect of success on the merits, not just a reasonable prospect of success: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125.

10. Although prejudice to the other party is a ground for refusing to extend time, the absence of prejudice is not a ground for extending time: see Jotz, Klaus-Bernhard Markus v Hamawy, Tarek Mahmoud & Anor [2018] HKCA 144 at paragraph 11.”

9.  The learned authors of Hong Kong Civil Procedure (2024) at para 59/4/9 (at p 1269) also pointed out that:

“It is entirely in the discretion of the court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are: (1) the length of the delay; (3) the reasons for the delay; (3) the changes of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the applicant is granted.”

10.  In the present case, the delay on the part of the Plaintiff was about 1 month. The delay was not serious, and there is no evidence showing that the Defendant has suffered or will suffer prejudice. However, the Plaintiff is unable to provide any valid explanation for the delay.

11.  In my view, it is important for litigants to respect and abide by the procedural rules of the Court, and the fact that the Defendant is not legally represented does not ipso facto constitute an excuse for non-compliant.

12.  In any event, the Plaintiff’s proposed appeal has no merit, and is unarguable.

13.  In this connection:-

(1)  Section 63A of the District Court Ordinance (Cap 336) stipulates that no leave to appeal shall be granted unless the proposed appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

(2)  It is trite that the party that seeks to appeal bears the burden of satisfying the Court that his or her appeal has a reasonable prospect of success. This means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para 17.

(3)  As Kwan JA (as she then was) pointed out in 秦錦釗 及 香港特別行政區 [2018] HKCA 167 at para 8, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning, and pinpoint the error in respect thereof. See also李智慧 及 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984 at para 11 (per Chow JA).

14.  I have studied the Plaintiff’s written submissions dated 14 October 2024[1]. Whilst it is not easy to follow the Plaintiff’s contentions, it appears that the Plaintiff accuses the Defendant of, inter alios, failing to make adequate disclosure, destroying evidence, deleting files and/or messages and concealing evidence. The Plaintiff also makes suggestions that the Defendant’s solicitors were involved in some conspiracy, that they misunderstood certain aspects of the case and that they were slow in drafting up the orders made by the Court.

15.  Some of these accusations are hardly relevant. Be that as it may, as explained in paragraph 10(3) of the Decision, at this stage the Court is plainly not in a position to make findings on the Plaintiff’s allegations that files and/or messages were deleted. The Court may only make findings in relation to these forensic allegations with experts’ assistance. This is a matter for trial.

16.  More fundamentally, the Plaintiff has not identified any error in the analysis and reasoning set out in the Decision. She cannot explain why my exercise of discretion was plainly wrong and why my conclusion was untenable.

17.  I am of the view that the Plaintiff’s intended appeal is wholly unarguable. I cannot see any reason in the interests of justice that the intended appeal should be heard. Thus, it would be futile to grant leave to appeal to the Plaintiff.

18.  For the above reasons, I refuse to grant leave to the Plaintiff to appeal against the Decision.

“Cancelling” the Costs Order under the Decision

19.  As pointed out in paragraphs 18 to 20 of the Decision, the Plaintiff, being the unsuccessful party, should bear the Defendant’s costs in respect of the appeal against Master Chan’s order, and I failed to see any valid reason why the Court should depart from the general rule that costs should follow the event. The Plaintiff fails to identify any error on my part in regard to the question of costs.

20.  In any event, since I dismiss the Plaintiff’s application for leave to appeal, there is plainly no basis to disturb the costs order under the Decision.

Referring the present Case to the Police

21.  I am unable to see the procedural basis for the Plaintiff to seek an order that the present case be referred to the Police for criminal investigation.

22.  In any event, the Plaintiff is at liberty to seek the Police’s assistance if she genuinely takes the view that a crime was committed. In this connection, at the present hearing, the Plaintiff said that she had already reported the matter to the Police. As such, I am unable to see why the Court should be involved.

Conclusion and Disposition

23.  I dismiss the Plaintiff’s Summons dated 15 October 2024.

24.  I am not prepared to award costs in favour of the Defendant, save and except the costs for attending the present hearing. The Defendant’s legal representatives only belatedly lodged proposed directions seeking adjournment one workday before the present hearing. In my view, they should have (i) appreciated that this is the occasion for substantive disposition of the Plaintiff’s Summons; and (ii) lodged submissions to assist the Court.

25.  In light of the aforesaid consideration, I order the Plaintiff to pay the Defendant’s costs in respect of the Summons dated 15 October 2024, summarily assessed at HK$1,700.