Hingone Investment Co Ltd v. Leung Tung Hoi and Another

HCMP 2604/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2604 OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 1119 OF 2011)

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BETWEEN

(by original action)

BETWEEN

(by counterclaim)

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J U D G M E N T

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

1.This is an application for leave to appeal against the decision of Au-Yeung J [“the Judge”] in respect of her case management decision on 8 October 2015. By that decision, the Judge refused to grant leave to the defendants to file two supplemental witness statements. The trial of the case shall commence on 1 December 2015.

2.The defendants applied for leave to appeal before the Judge.  The Judge refused leave on 8 October 2015. 

3.The defendants did not produce before this court the written judgment of the Judge or the transcript or notes of the oral decision.

4.It has been said repeatedly that application for leave should first be made to the judge below as this court should have the benefit of the view of that judge in relation to leave to appeal, see see Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678; Jenho Development Ltd v Pensonic Technology (HK) Ltd HCMP 277 of 2013, 25 March 2013; Penny’s Bay Investment Co Ltd v Director of Lands  HCMP 222 to 225 of 2015, 19 May 2015 and Lehman Brown Ltd v Union Trade Holdings Inc HCMP 977 of 2014, 17 June 2015; Dembele, Salifou v Director of Immigration HCMP 1145 of 2015, 29 June 2015.  This is particularly so when the appeal is directed towards a case management decision which by its nature is inextricably sensitive to procedural history and circumstances leading to the decision in the context of the overall progress of the action. The Defendants did not place before us the Judge’s reasons for refusing leave.

5.This court also said repeatedly case management discretion is primarily a matter for the judge and this court would only intervene when the judge’s decision is plainly wrong, Li Xiao Yun v China Gas Holdings Ltd HCMP 466 of 2013, 11 March 2013; 厦門新景地集團有限公司v Eton Properties HCMP 13 of 2012, 14 Feb 2012, paragraph 9; Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 paragraph 31. 

6.Without including the reasons of the Judge (both in dismissing the summons and refusing leave) in the application bundle (which should include all relevant materials), the defendants failed to place before us the necessary materials to make good the submission that the Judge erred in principle or otherwise exercised her case management discretion in a manner which is plainly wrong.  

7.The application is opposed by the Plaintiff. There is a statement of opposition prepared by Mr Wong, counsel for the plaintiff.

8.We have read the supplemental witness statements. They are substantial documents.  We do not accept that they are mere evidence to fill in gaps.

9.Nor do we accept the change of advice from counsel as good reason for granting leave to file such evidence at so late a stage.

10.We have also read the cases cited by Mr Cheung, counsel for the defendants.  In our view, they were decisions in the special context of those cases.  In matters of case management discretion, much depends on the facts and circumstances of each case and the judge’s assessment of the case.  We do not find these cases to be of much assistance for the purpose of this application, particularly when the defendants did not see fit place the reasons of the Judge before us.  

11.We are not satisfied that the proposed appeal has any reasonable prospect of success.  Nor do we discern any other reason in the interest of justice to grant leave.

12.We dismiss the summons of 16 October 2015.

13.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), the Rules of the High Court, we make an order that no party may request our refusal of leave to be reconsidered at an oral hearing inter partes.

14.On the materials before us, the present application is a hopeless application which should not have been brought. It is a last minute pre-trial application and those acting for the plaintiff had to divert from the preparation for the trial in order to respond to this application. In line with established practice of this court (see Li Xiao Yun v China Gas Holdings Ltd HCMP 466 of 2013, 11 March 2013), we order the defendants to pay the plaintiff’s costs in this application on indemnity basis. Solicitor for the Plaintiff placed before us a statement of costs in the total sum of $163,714 of which $24,000 is counsel fees. We are of the view that the quantum for counsel fees is reasonable whilst the fees charged by the solicitor is clearly unreasonable. Even on indemnity basis, there is much room for reducing the costs of the solicitor, much of which overlaps with the costs for preparation of the trial and costs already incurred in respect of the applications before the Judge. In our view, the amounts set out in the statement of costs are so obviously excessive that no reliance can be placed on it for the assessment of the fees of the solicitors. Bearing in mind the lack of complexity of the matter, the involvement of counsel, we fix the costs payable by the defendants to the plaintiff at $45,000 (of which $24,000 is counsel fees). 

Written submissions by Mr Samuel Wong, instructed by Henry Wan & Yeung, for the plaintiff (by original action).

Written submissions by Mr Jeremy Cheung and Ms Candy Tang, instructed by B. Manek & Co, for the defendants (by original action).