HCMP 3305/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 3305 OF 2015
(ON INTENDED APPEAL FROM DCCJ 1914 OF 2015)
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BETWEEN
YUEN OI YEE LISA
Applicant
and
CHAROEN SIRIVADHANABHAKDI
1st Respondentst Defendant)
THAPANA SIRIVADHANABHAKDI
2nd Respondentnd Defendant)
MATTHEW KICHODHAN
3rd Respondentrd Defendant)
MICHAEL CHYE
4th Respondentth Defendant)
LEE MAN HONG ANDY
5th Respondentth Defendant)
THAI BEVERAGE PUBLIC COMPANY LIMITED
6th Respondentth Defendant)
INTERNATIONAL BEVERAGE HOLDINGS LIMITED
7th Respondentth Defendant)
BEST SPIRITS COMPANY LIMITED
8th Respondentth Defendant)
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Before : Hon Barma JA and Hon Poon JA in Court
Dates of Written Submission : 23 and 28 December 2015
Date of Judgment : 18 February 2016
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J U D G M E N T
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Hon Poon JA (giving the Judgment of the Court) :
Introduction
1. This is an application by the applicant (the plaintiff in the proceedings below) for leave to appeal against the orders of Acting Chief District Judge Justin Ko (“the Judge”) dated 16 November 2015, 2 December 2015 and 9 December 2015 (‘the 1st Order”, “the 2nd Order” and “the 3rd Order” respectively).
2. By the 1st Order, the Judge :
(1) ordered that the statement of claim herein be struck out under Order 18, rule 19 of the Rules of the District Court, Cap 336H and the court’s inherent jurisdiction and that the action herein be dismissed;
(2) ordered that the endorsement of writ in DCCJ 1915/2015 be struck out under Order 18, rule 19 of the Rules of the District Court, Cap 336H and the court’s inherent jurisdiction and that that action be dismissed; and
(3) made a restrictive proceedings order (“RPO”) against the applicant.
3. The Judge gave the reasons of the 1st Order in his judgment handed down on 16 November 2015 (“the Judgment”).
4. By the order of 2 December 2015, the Judge allowed the applicant’s application by way of summons dated 23 November 2015 to listen to the tape recorder in order to confirm what the Judge had recorded in [78] of his judgment dated 16 November 2015 that “[the applicant] admitted to have signed the certificates and refused to explain further.” The Judge dismissed the remainder of the applicant’s application by way of that summons for an order “to pass other offence committed by Messrs Hobson & Ma (the solicitors acting for the 2nd , 5th , 7th and 8th defendants) and Lam VP and Miss Susan Wong (the Deputy Presiding Officer who handled the applicant’s claim in the Labour Tribunal in LBCT 588/2011) to the Secretary for Justice in one go” and “to extend further time for [her] application for leave to appeal against [the Judge’s] judgment delivered on 16 November 2015 to the Court of Appeal pending an outcome from [her] legal aid application lodged on 22 October 2015”.
5. The Judge’s reasoning in granting the 2nd Order can be found in the Decision handed down on 2 December 2015.
6. By the order of 9 December 2015, the Judge dismissed the applicant’s application for leave to appeal against the 1st and 2nd Orders. Full reasons of his judgment are set out in the Decision of the same date.
7. The applicant now applies to this Court for leave to appeal against the 1st , 2nd and 3rd Orders.
Discussion
8. Under section 63 of the District Court Ordinance, Cap 336, an appeal to the Court of Appeal from a judgment, order or decision of a District Judge in any civil cause or matter may only be made with leave. Section 63A(2) goes on to provide that leave to appeal shall not be granted unless the Judge or the Court of Appeal hearing the application is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.
9. It is well established that leave to appeal under section 63A(2) is not lightly granted. Reasonable prospects of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable : see SMSE v KL [2009] 4 HKLRD 125, per Le Pichon JA at [17].
10. We now consider if the applicant’s appeal has any reasonable prospect of success.
11. In the Judgment, the Judge set out in details the background leading to the action below and its procedural history. We shall not repeat them here.
12. After carefully going through the evidence before him, the Judge concluded that the action was a re-litigation of LBCT 588/2011 and HCA 2045/2012. Those actions were commenced by the applicant’s husband but had already been dismissed. The Judge found that the applicant had a direct interest in the outcome of her husband’s claim in those actions and was therefore his privy. She cannot re-litigate those matters by virtue of the action below. In our view, the Judge was entirely correct in his analysis and reasoning.
13. As to the RPO, the Judge also explained in detail why he thought it was proper to make the RPO against the applicant. We again agree with the Judge entirely. The RPO was well justified by the procedural history of the action and how the applicant had conducted herself so far.
14. The 2nd Order contained the Judge’s case management decisions. We agree with the Judge’s reasoning as contained in the Decision of the same date. There is simply no basis for us to disturb his decisions.
15. In the applicant’s draft notice of appeal, she also seeks leave to appeal against the 3rd Order. That is procedurally misconceived. When she failed to obtain leave to appeal from the Judge, the only way to obtain leave is by way of renewing the application to the Court of Appeal, not applying for leave to appeal against the 3rd Order.
16. In the draft notice of appeal, the applicant raised a total of 12 grounds of appeal. Grounds (a) to (d) concern various matters after the making of the RPO. They are not grounds of appeal. Grounds (e) to (j) make various allegations against the former Chief Executive, Lam VP and other judicial officers. Ground (k) contends that it is important to wait for an outcome from the police’s investigation against Messrs Hobson & Ma, Lam VP and Ms Susan Wong. Grounds (e) to (k) are not grounds of appeal either. Finally, Ground (l) concerns the costs order the Judge made against her. But the Judge was plainly right in exercising his discretion to order costs against her. The applicant has failed to satisfy us why we should disturb the Judge’s costs order.
17. The applicant has filed numerous affirmations to support her application. Most of the affirmations are irrelevant. In any event, they do not take her application any further.
18. In our view, none of the grounds of appeal has any reasonable prospect of success as required under section 63A(2) of the District Court Ordinance.
Conclusion
19. For the above reasons, we dismiss the applicant’s application for leave to appeal. As this application is wholly without merit, we make an order pursuant to Order 59, rule 2A(8) of the Rules of the High Court, Cap 4A, that that no party may under paragraph (7) of the same rule request our determination to be reconsidered at an oral hearing inter partes.
20. We further order the applicant to pay the respondents costs of the application. We direct the respondents to file and serve a statement of costs within 14 days from today and the applicant to file and serve a statement of objection (limited to 2 A-4 pages) within 14 days thereafter. The quantum of the respondents’ costs will then be disposed of on paper.
(Aarif Barma)
(Jeremy Poon)
Justice of Appeal
Justice of Appeal
Applicant appeared in person
Mr Lam Chi Ching Gary, instructed by Hobson & Ma, for the 2nd , 5th , 7th and 8th respondent