LI SHIU TO v. CHEUNG PIK NG AND ANOTHER

HCMP 1864/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1864 OF 2014

(ON AN INTENDED APPEAL FROM HCA 416/2003)

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J U D G M E N T

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

1.  This is the 1^st defendants’ application for leave to appeal against Au Yeung J’s decision dated 11 June 2014.

2.  The original 1^st defendant Mr Li Shiu Tsang’s application to strike out for want of prosecution failed before Master Andy Ho, from whose order there was no appeal.

3.  Mr Li failed before Deputy High Court Judge Lok in resisting the plaintiff’s subsequent application to amend the pleadings.  Delay and prejudice, as well as what the plaintiff had represented to Master Andy Ho before, were all relied on as grounds in opposition to the amendments, but they were not accepted by the deputy judge.  From his decision, there was again no appeal.

4.  In our view, the subsequent death of Mr Li cannot give his estate any leg to stand on to mount yet another application to strike out based on abuse.  Mr Li’s death was unfortunate but the plaintiff was not to blame.  In litigation, as in life, anything could happen to the litigants or the witnesses.  On facts such as the present, save in exceptional circumstances, what happened subsequently, such as the death of a party or a key witness, or the unavailability of some material evidence, through no fault of the opposite party, cannot be a ground for revisiting a matter already dealt with in previous interlocutory proceedings.  There has to be some finality even in interlocutory matters.

5.  On the facts of the present case, we see no reasonable prospect of disturbing on appeal the judge’s exercise of discretion.

6.  The application for leave is therefore dismissed with costs, summarily assessed at $148,414, to the plaintiff.  There will also be legal aid taxation of the plaintiff’s own costs.