LI SHIU TO v. LI SHIU TSANG AND ANOTHER

HCA 416/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 416 OF 2003

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D E C I S I O N

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1. This is the 1^st defendant’s application for leave to appeal from my order made on 11 June 2014 whereby the 1^st defendant’s second striking out application brought on the ground of inordinate and inexcusable delay resulting in prejudice and/or abuse of process was dismissed.

2. The legal principles applicable to an application for leave to appeal are not in dispute.  The 1^st defendant seeks leave under both limbs of section 14AA of the High Court Ordinance (Cap 4).

3. Leave to appeal will be granted if the applicant can show that there is reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

4. Reasonable prospect of success involves the notion that prospects of succeeding must be reasonable and, therefore, more than fanciful without having to be probable: SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA, at paragraph 17.

5. The Court of Appeal will not interfere with a decision made by a judge in the exercise of his discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong, such that it was outside the generous ambit with which a reasonable disagreement is possible: Cheung Kam Wah v Cheung Hon Wah [2005] 1 HKC 136; Carlos Manuel Kwong v Lo Kam Wing, CACV128/2005, Yuen JA, 3 November 2005, at paragraph 28.

6. When the decision made is one of case management, it would be subject to appeal only in rare circumstances.  The appellant faces the very high hurdle and must show that the judge as gone clearly wrong and made orders which will clearly involve an injustice or inability for the trial court to carry out his task, or if the judge erred in principle or the order was irrational having regard to the issues that had to be resolved: Lee Tak Yee v Chen Park Kuen[2001] 1 HKLRD 401, Rogers VP; Kan Miu Wah v Aeroflot, CACV 142/2006, Le Pichon JA, 6 September 2006; Chan Wing Cheung v Ho Shu Yee, CACV393/2004, Ma CJHC (as he then was), 10 January 2005.

7. The 1^st defendant relies on, essentially, three grounds of appeal.  First, it is said that the correct approach should be to allow the second striking out application to be substantively argued, and any concern as to timetabling and proportionality could have been adequately provided for by the appropriate use of case management powers. 

8. Mr Chu for the 1st defendant relies on Order 1A rule 2(2) which refers to the primary aim in exercise of the court’s power which is to secure the just resolution of disputes in accordance with the substantive rights of the parties.

9. I absolutely agree with this principle.  In my view, just resolution of disputes and proper case management require the court not only to manage the course of a case leading to trial, but also the interlocutory applications that arise in the interval.

10. The fact that a case has not been set down for trial is not a reason for permitting unmeritorious interlocutory applications to go forward.  It is, in my view, a misconception to think that a court must adjourn a summons that is disputed, or where parties have consented to an adjournment to a substantive hearing that may run into hours or, in the present case, a day. 

11. Having said that, I have given the opportunity to the 1^st defendant to show cause at the call-over to see why the application should be allowed to proceed, and the 1^st defendant had in fact put in written submission.  The summons was dealt with after hearing the arguments before I declined to make an order in terms of the consent summons.

12. I fail to see how it can be said that this court has failed in principle in not adjourning the second striking out application to be substantively argued. 

13. The substantial injustice occasioned to the 1^st defendant in the light of the plaintiff’s delay had been dealt with by Master Ho on a previous similar application for strike out.  The matter concerning the contribution claim against LSK had also been dealt with by this court, and will be dealt with by the Court of Appealin October.  The demise of LST, the only witness to the 1st defendantwith personal knowledge, has also been considered by me in the June decision. 

14. Accordingly, I see no merits as regards the first ground.

15. Ground 2 and ground 3 are really criticisms of this court in the way it exercised the discretion.  It has not been pointed out to me on what legal principle I have erred, nor has it been pointed out what relevant facts I have failed to put into the basket of factors that I have considered. The only comment probably is my lack of considering the factors and say that “collectively” I see no merits in the striking out application.  I do not see on what ground the appeal will have any reasonable prospects of success. 

16. Re the second limb relied on by the 1st defendant, it has been pointed out by Mr Chu that the executor defendants are facing a dilemma when they need to go to trial without witnesses.  Be that as it may, I do not see this as a ground to permit leave to appeal where there is simply no merit in the substantive summons itself. 

17. As pointed out by Miss Wong SC, before his death, LST had had the opportunity to state on record his recollection of events under the present amended case of the plaintiff.  Despite the opportunity, LST has said nothing.

18. Considering all the grounds, I am of the view that leave should not be given, there being no reasonable prospect of success and there being nothing to show that in the interests of justice the 1^st defendant should be heard on appeal from my decision.

19. Application is dismissed.  Costs to follow the event and be to the plaintiff to be summarily assessed on Monday.  This will be with certificate for counsel.