LEE CHICK CHOI v. BEST SPIRITS CO LTD

CACV 25/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2015

(ON APPEAL FROM HCSD NO 38 of 2011)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This appeal was brought by the Applicant Mr Lee Chick Choi in respect of the decision of A Chan J of 21 January 2015. By that decision, the learned judge dismissed Mr Lee’s application to set aside a statutory demand of 7 November 2011. The notice of appeal was served on 27 January 2015.

2.  There was no further progress in the appeal since the setting down of the appeal on 2 February 2015.

3.  A bankruptcy order was made against Mr Lee on 18 May 2015.  On 5 June 2015, a master acting as the Registrar of Civil Appeals made an order staying the appeal pending the approval of the trustee in bankruptcy for the continuation of the proceedings.

4.  Mr Lee appealed against the bankruptcy order and that appeal (in CACV 138 of 2015) was dismissed on 17 February 2017.

5.  By a letter of 2 May 2017, the trustees in bankruptcy in respect of the estate of Mr Lee informed the court they agreed that in view of the dismissal of appeal against the bankruptcy order, the very basis for impeaching the statutory demand in the present appeal had ceased to exist.

6.  Having read the judgment of Poon JA in CACV 138 of 2015 and the notice of appeal in the present case, it is plain to us that the appeal has no merit whatsoever.  The statutory demand was based on a costs order made in Labour Tribunal LBTC 588 of 2011.  Application for leave to appeal against that order had been refused by the Court of First Instance in HCLA 29 of 2011.  Subsequently, he made a futile attempt to seek a review of the costs order.  That application was rejected and attempts to bring appeal against that determination were also unsuccessful, culminating in the refusal of this Court (Lam V-P and Barma JA) in HCMP 401 of 2015 to grant leave to appeal on 10 April 2015. 

7.  It is also clear by now that no useful purpose would be served by the appeal.  The bankruptcy order is final as CACV 138 of 2015 had been dismissed and leave to appeal to the Court of Final Appeal had been refused on 31 May 2017. 

8.  From the litigation history as recited by Poon JA in the judgment in CACV 138 of 2015, it is also clear to us that the appeal is vexatious and an abuse of process.

9.  We therefore make an order striking out the appeal, dismissing the same and ordering Mr Lee to pay the costs of the Respondent in the appeal on an indemnity basis.  Since Mr Lee is a bankrupt, the Respondent must obtain leave from the bankruptcy court before it can proceed with any taxation of the costs.