Tang Chi Yuen v. 陳金洪 Transliterated As Chan Kam Hung and Others

DCCJ 674/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 674 OF 2016

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DECISION

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Introduction

1.The plaintiff seeks leave to appeal against my decision handed down on 10 August 2016 (“the Decision”).

2.The plaintiff is a taxi driver and a member of Lantau Taxi Association; the 1^st – 9^th defendants are the committee members of the Association. I granted unconditional leave to the 1^st – 9^th defendants to defend the plaintiff’s claim with costs.

3.I do not intend to repeat the dramatis personae and the facts of this case, I shall adopt the abbreviations used in the Decision herein.

Legal principles for leave to appeal

4.Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336)

5.Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2015, §59/2A/4)

The plaintiff’s application

Ground 1

6.The plaintiff submitted, the temporary suspension of paragraphs (4) and (5) of the Resolution does not preclude an injunction applied for in an Order 14 application. The plaintiff was applying for a permanent order, instead of interlocutory in nature.

7.The granting of a permanent injunction is akin to a declaration, it should be granted after trial when all evidence had been canvassed. As the validity of the Resolution was a triable issue, it is pertinent to resolve it at trial.

Grounds 2

8.The plaintiff submitted, the court has adopted a wrong test in Great Rock Asset Management LCC v. Yulong International (HK) Limited, HCA 402/2015, 16 June 2016 in the plaintiff’s Order 14 application.  Great Rock Asset Management LCC was decided on the basis of Order 13 rule 6, for judgment in default of defence.

9.In Great Rock Asset Management LCC, a declaratory judgment was warranted in the circumstance of an e-mail fraud. The general consideration is that a declaratory judgment shall be given only in exception cases in absence of a trial.  This is not an inflexible rule where the exception should be rare and only in clear cases. I see no exceptional circumstance in the plaintiff’s claim that a declaratory judgment shall be given.

Ground 3

10.The plaintiff submitted, the court has erred to find there are triable issues in relation to the validity of the Resolution. The plaintiff argued the members signed the request “as a result of” the plaintiff’s letter dated 26 January 2016”. The letter was only sent on 28 January 2016 and should not have reached the Association earlier than 28 January 2016. The only inference that the members must have signed after passing of the Resolution on 26 January 2016. The Resolution was therefore invalid.

11.The 1^st – 9^th defendants submitted, the evidence showed only a letter was posted to the Association on 26 January 2016. The court should receive evidence in determining the issue. It is on common ground that a resolution should be passed with support of 50% of the members of the Association. As stated in §14 of the Decision, where there are 83 out of 154 members signed in support of the Resolution. The gist of the plaintiff’s claim is to challenge the validity of the Resolution. It naturally becomes a triable issue and far from a clear case that declaratory judgment should be given. I agree. This is exactly the triable issue of the plaintiff’s claim.

Ground 4

12.The plaintiff submitted, the court has erred in finding the income of the Association plunged as a result of a decreasing number of requests made by passengers via the traditional radio service in absence of evidence.

13.The “finding” was stated in §5 of the Decision as “The Association was dissatisfied because its income plunged with a decreasing numbers of requests made by passengers.” I clarified at the hearing, if there were an increasing number of passengers using the APP, less orders will be placed by passengers via the traditional radio service.  An inference was drawn on this basis that the fees or income of the Association will decrease.  I accept, as appeared in both the affirmations, it should be more appropriate to rephrase the above as “The Association was dissatisfied because the APP seriously affected the operation of the radio services, the Association’s reputation and interest; and fairness to its members.”

14.Having said that, the inference in §5 of the Decision does not amount to a finding of fact. Evidence can still be received at trial in deciding the issue. I am not satisfied I should exercise my discretion to grant leave to appeal on this ground.  

Ground 5

15.In my Decision, I must accept I have given two inconsistent orders: plaintiff’s summons be dismissed on the one hand and granting unconditional leave to defend to the defendants on the other. (See commentary of Hong Kong Civil Procedure 2015, §14/7/6) Based on the reasoning of my Decision where there are triable issues, the proper order should be the latter one.

16.The plaintiff accepts it could be remedied by way of a corrigendum to delete paragraph 22(i) of my Decision. The ground of appeal on costs remains.

17.The plaintiff submitted, the court has erred in ordering costs of the plaintiff’s summons to be paid by the plaintiff instead of the usual order of costs in the cause when unconditional leave to defend is granted.

18.With the reasons in the Decision where unconditional leave to defend is given, I accept the usual costs order of the plaintiff’s Order 14 application is costs in the cause. (See: the commentaries of the Hong Kong Civil Procedure 2017 at §14/7/13) As there are no reasons stated in my Decision on the departure of the general rule, on this ground, leave to appeal is justified.

Conclusion

18.  I do not see Ground 1 to Ground 4 of the draft Notice of Appeal has reasonable prospect of success in the appeal. I allow the plaintiff’s application for leave to appeal against the Decision on Ground 5 only. Costs for this application be in the cause of the appeal, with certificate for counsel.

Mr Gary Lam Chin Ching, instructed by Chui & Lau, for the plaintiff

Mr Timothy Y H Wong, instructed by Chiu, Szeto & Cheng, for the 1^st to 9^th defendant