China Citic Bank International Ltd v. Durrant Simon Patrick Michael)

CACV 127/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2014

(ON APPEAL FROM HCMP NO. 3196 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.On 23 June 2016, we handed down our judgment dismissing the defendant’s appeal against the judgment of Deputy High Court Judge S T Poon on 23 June 2014. The judge had dismissed the defendant’s appeal against the judgment of Master Leong in a mortgage action. Judgment was entered in favour of the plaintiff of the amounts due in respect of two mortgage loans and the defendant was ordered to deliver up vacant possession of the mortgaged property to the plaintiff.

2.Two days later, the defendant filed a notice of motion seeking leave to appeal to the Court of Final Appeal and a summons for stay of execution of the judgment of Master Leong pending the intended appeal to the Court of Final Appeal.  We gave directions on 27 June 2016 for both applications to be dealt with on paper.  We granted an interim stay of the judgment of the master until the determination of the present applications.

3.Whether leave to appeal to the Court of Final Appeal should be granted is at the discretion of the Court of Appeal or the Court of Final Appeal.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, the applicant would need to satisfy the court that the question involved in the intended appeal is one which, by reason of its great general or public importance, or otherwise, should be submitted to the Court of Final Appeal for decision.

4.In the notice of motion, the defendant merely set out the same four grounds of appeal mentioned in paragraph 14 of our judgment.  We are unable to discern any question of great general or public importance, whether in the four grounds of appeal or in the two submissions of the defendant. In his two submissions, he largely repeated his arguments on appeal, which have been rejected for the reasons given in our judgment.  We do not think the intended appeal is reasonably arguable.

5.As for the “or otherwise” limb, the court would only exercise the discretion to grant leave to appeal on this basis as an exceptional course (Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260).  There is nothing in the circumstances here to warrant such an exceptional course to be taken.

6.In the exercise of our discretion, we refuse to grant leave to appeal to the Court of Final Appeal.  That being the case, we also dismiss the application for stay of execution of the judgment below as this is premised on the pursuit of the intended appeal.

7.We make an order nisi that the defendant should pay the plaintiff’s costs of the two applications, to be taxed on an indemnity basis if not agreed.  Indemnity costs are ordered for the reason given in paragraph 38 of our judgment.  In the absence of any application to set aside the costs order nisi, the order will become absolute after 14 days from the handing down of this judgment.

Written submissions by Ms Verna Lui, instructed by V Hau & Chow, for the Plaintiff (Respondent)

Written submissions by the Defendant (Appellant), acting in person