Lai Yi v. Tsui Kin Chung

HCMP 3404/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3404 OF 2015

(ON INTENDED APPEAL FROM LDPD 1406 OF 2015)

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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.The applicant (landlord) commenced the proceedings in the Lands Tribunal below against the respondent (tenant) to recover vacant possession of the suit premises and arrears of rent/mesne profits on the ground of non-payment of rent since 17 June 2015.

2.In the course of the proceedings, the respondent took out various interlocutory applications, which resulted in three hearings on 21 July, 27 August and 4 September 2015. By Reasons for Decision (1) dated 5 October 2015, the Judge dismissed the respondents’ application :

(1) that the Judge should recuse himself in adjudicating the dispute between the parties;

(2) that all directions or orders made by him in the proceedings be set aside; and

(3) that the present proceedings be transferred to the Court of First Instance.

3.By Reasons for Decision (2) also dated 5 October 2015, the Judge dismissed the respondent’s application to strike out the applicant’s claim and for an anonymity order.

4.By Judgment also dated 5 October 2015, the Judge confirmed that the order of possession of the suit premises that he previously made on 30 July 2015 was still effective.  He further ordered the respondent to pay mense profit in the sum of HK$6,900.00 per month to the applicant from 17 June 2015 until the latter recover vacant possession of the suit premises.  He finally made a costs order nisi that the respondent do pay the applicant costs in the sum of HK$2,000.00, to be made absolute within 14 days.

5.By a summons dated 3 November 2015, the respondent applied for leave to appeal against all the orders made by the Judge as aforesaid and for a stay of execution of the order of payment of mesne profit and costs.  The Judge heard and dismissed the application on 23 December 2015.  He handed down the Reasons for Decision on 8 January 2016.  There, the Judge did not consider any of the grounds of appeal that the respondent deployed to be reasonably arguable.  He then noted that the leave application was out of time and the respondent had failed to offer any reasonable excuse for the delay.  So the Judge refused to give the respondent leave to appeal and dismissed his application for stay of execution.

6.By a summons dated 23 December 2015, the respondent applied to the Court of Appeal for leave to appeal.

Discussion

7.As rightly observed by the Judge, the respondent’s application for leave to appeal is out of time.  Leaving delay aside, the respondent must satisfy us that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard : see section 11A(6) of the Lands Tribunal, Cap 17.

8.It would appear from the contents of the summons dated 23 December 2015 and the affidavits cum skeleton argument that the respondent filed in support of his application together with the exhibits/enclosures, the grounds of appeal can be grouped into the following categories.

9.First, the Judge is guilty of misconduct.  He was not punctual; he requested the respondent to speak Punti instead of Cantonese; he made offensive remarks; he behaved intemperately; he suffered from mental issues; and he repeated himself.

10.Second, the Judge was biased against the respondent.

11.Third, there was procedural irregularity because the Judge wrongly refused to make an anonymity order and refused to conduct the hearing in private.

12.Fourth, the Judge wrongly failed to strike out the applicant’s claim.

13.Fifth, the Judge wrongly made the order of possession.

14.Sixthly, the Judge wrongly made the costs orders against him.

15.We have carefully considered the Judge’s Judgment and the three Reasons for Decisions, the respondent’s affidavits, his skeleton argument and the materials placed before us.  We can see no substance whatsoever in any of his complaints against the Judge’s conduct.  As to the other grounds of appeal, we think the Judge has adequately dealt with them in the Reasons for Decision dated 8 January 2016.  We agree with his reasons entirely.  We fail to see any merit in any of those grounds of appeal.

Conclusion

16.The respondent’s appeal is wholly unmeritorious.  We refuse to grant him leave to appeal.

17.Because the respondent’s application is totally without merit, we make an order under Order 59, rule 2A(8) of the Rules of the High Court, Cap 4A that no party may under paragraph (7) of the same rule request our determination to be reconsidered at an oral hearing inter partes.

18.Since the applicant has not filed any statement of opposition, we make no order as to costs.

Respondent appeared in person

No written submission from the applicant