Axa China Region Insurance Co Ltd v. Leong Fong Cheng

CACV 113/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 113 OF 2016

(ON APPEAL FROM HCA NO 1516 of 2013)

________________________

BETWEEN

_______________________

_______________

JUDGMENT

_______________

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

1.On 24 October 2016, this Court (Lam VP and Kwan JA) made an unless order providing that unless the Defendant shall file and serve an amended notice of appeal setting out her precise grounds of appeal and the order she asks this Court to make and pay security for costs in the sum of $167,500 by 24 December 2016, the appeal shall be automatically dismissed without further order.

2.The Defendant paid the security for costs on 17 November 2016 but she did not file and serve any amended notice of appeal by the deadline.  The appeal was dismissed accordingly.

3.By a Notice of Motion of 28 March 2017, she seeks leave to appeal to the Court of Final Appeal.  She claimed that her appeal was wrongly dismissed.  She claimed that she only filed a summons for appeal (“傳票上訴申請” ) on 12 May 2016 and her Notice of Appeal was filed on 5 December 2016, hence there was no question of requiring any amendment to Notice of Appeal.

4.Her assertions in the Notice of Motion are inaccurate.  According to the documents in the court file, she filed a Notice of Appeal ( “上訴通知書”) on 12 May 2016.  It was not a summons for appeal.  In fact, at the hearing on 24 October 2016, this Court explained to her that such Notice of Appeal was defective in that it did not set out proper grounds of appeal, see [10] of the Reasons for Judgment of 28 October 2016.

5.For that reason, this Court made the unless order regarding the filing and serving of amended Notice of Appeal.  She was present at the hearing and this Court had made clear to her the obligations to file and serve an amended Notice of Appeal.  The same was reiterated in our written Reasons for Judgment of 28 October 2016.

6.On 5 December 2016, instead of filing and serving an amended Notice of Appeal (as claimed by her in her Notice of Motion), she filed an affirmation and several bundles of documents.  None of them is an amended Notice of Appeal.  In the affirmation, she alleged that the order as drawn up wrongly referred to “amended notice of appeal”. 

7.As we have explained, the Defendant was incorrect in claiming that she had not filed any notice of appeal. 

8.Hence, she had not complied with the unless order of 24 October 2016 before the deadline.  Her appeal was dismissed automatically.  The order clearly provides for the automatic dismissal of the appeal without further order.  There is no obligation on the part of the Court to give her further notice of the dismissal. 

9.We do not see any basis for granting leave to appeal to the Court of Final Appeal.  Her misunderstanding of the position cannot be a ground of appeal.  Nor can we see how her appeal could satisfy the criteria in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

10.If she is willing to comply with the order for filing and serving an amended notice of appeal (which should set out her grounds of appeal instead of simply filing volumes of documents and submissions), she may consider seeking relief under Order 2 Rule 5.  We are not saying that such application would succeed.  It is entirely a matter for her to consider and the Court will have to hear the Plaintiff on such application. But, as explained above, we cannot grant her leave to appeal to the Court of Final Appeal. 

11.We therefore dismiss the Notice of Motion of 28 March 2017. 

Kennedys for the plaintiff

The defendant acting in person