Glory Sky Finance Ltd v. Chen Jianhua and Another

HCMP 2482/2014

[2018] HKCFI 1690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2482 OF 2014

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Before: Deputy High Court Judge Keith Yeung SC in Chambers

Date of Hearing: 21 June 2018

Date of Decision: 27 July 2018

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DECISION

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The applications

1.By my judgment dated 15 March 2018 (the “Judgment”), I ordered the plaintiff to within 14 days from the date of the judgment pay into court the sum of HK$1,500,000 pursuant to Order 2, rule 3 of the Rules of the High Court.

2.By summons dated 28 March 2018 (“Summons for Leave to Appeal and Stay”), the plaintiff seeks leave to appeal against the Judgment, and a stay of execution of the Judgment pending final determination of the application for leave, and if leave be granted, of the appeal.  No payment-in was made in compliance of the Judgment in the meantime, and no order for any stay was obtained before the deadline for compliance.

3.By summons dated 4 April 2018 returnable before a Master, the defendants sought an unless order that unless by 4 pm on 18 April 2018(which date will have to be adjusted if I am to grant it) the plaintiff do make the payment-in, the plaintiff’s claim be dismissed with costs.

4.By another summons dated 11 April 2018 returnable before another Master, the plaintiff sought an order that the time for compliance of the Judgment be extended until the determination of the plaintiff’s application for leave to appeal against the Judgment, or should leave be granted, the appeal.

5.The two summonses of 4 April and 11 April 2018 came before me on 11 May 2018.  After the hearing and on the same day, I dismissed the plaintiff’s summons for time and allowed the defendants’ application for an unless order (the “11-5-18 Unless Order”). The deadline for the plaintiff to effect the payment-in was set to be 4:00 pm on 18 May 2018.

6.As things turned out, the plaintiff failed to make the payment- in before the deadline.  Instead, on 18 May 2018, a time summons (the “Summons for Further Time”) returnable before me on 21 June 2018 was taken out for an Order that the time for compliance of the 11-5-18 Unless Order be “further extended until the determination of [the Summons for Leave to Appeal and Stay] returnable on 21^st June 2018 or further order for stay of execution and leave to appeal”.  I note immediately that that was exactly the application which I dismissed on 11 May 2018.

7.Upon failure on the part of the plaintiff to comply with the 11-5-18 Unless Order, and by Order dated 18 May 2018, the plaintiff’s claim herein was dismissed.

8.The plaintiff’s Summons for Leave to Appeal and Stay and Summons for Further Time came before me on 21 June 2018 for determination.

The grounds of appeal upon which leave is sought

9.In the Summons for Leave to Appeal and Stay, quite a number of grounds are set out.  During the hearing on 21 June 2018, Mr Ching informed me that he decided to advance the application on much narrower grounds based on his interpretation of the transcript (the “Transcript”) of the audio recording of the hearing before Master K Lo on 27 April 2017 (when Master Lo’s Order was made).  I will come back to the contents of the Transcript.  Mr Ching further informed me that for the purpose of the present application, he would only rely on Grounds of Appeal 1.a., 1.b, and 1.e. set out in the Summons for Leave to Appeal and Stay.  They read as follows:

“1. leave be granted to the Plaintiff to appeal against the Judgment given by Deputy High Court Judge Keith Yeung SC in Chambers dated 15^th March 2018 on the grounds including but not limited to the following, pursuant to Order 59 rules 2B of the High Court Ordinance, Cap.4A;

a. the learned Judge erred in finding that the Order of Master K Lo Dated 27^th April 2017 was not irregular and thus not liable to be set aside;

b. further or in the alternative, the learned Judge erred in finding that the Order of Master K Lo dated 27^th April 2017 ought not to have been amended for irregularity or otherwise;

…

e. learned Judge erred in finding that the Plaintiff’s Irregularity Summons and the Amendment Summons ought to have been dismissed.”

Test for granting leave

10.The test to apply when considering whether leave to appeal should be granted is set out in section 14AA of the High Court Ordinance Cap 4, that:

“(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

11.In so far as the threshold test set out in subsection 14AA(4)(a) is concerned, Le Pichon JA in SMSE v KL [2009] 4 HKLR 125 explained that:

“17. Leave to appeal under Order 59 rule 2B is not lightly granted. The relevant test appears in section 14AA(4) of the High Court Ordinance. In granting leave, the judge must have considered that the test set out in section 14AA(4) had been met. The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

In Ho Yuen Ki Winnie v Ho Hung Sun Stanley (unreported, HCMP 1009/2009), Her Ladyship reiterated at paragraph 16 that:

“As a preliminary matter, it is relevant to bear in mind that the leave requirement was introduced largely to address satellite litigation on interlocutory issues (often of only marginal significance to the outcome of the litigation) which almost invariably gives rise to major delay and expense. See the Final Report on Civil Justice Reform (§643). For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.”

The Transcript

12.During the hearing on 30 January 2018 (which resulted in the Judgment), the Transcript was not placed before me.  Now for the purpose of the Summons for Leave to Appeal and Stay, Mr Ching sought to rely on it. 

13.The Transcript records as follows:

“MR CHEUK: Good morning, Master. I appear on behalf of the defendant, and this is an application for an unless order.

COURT: What about service on the other side?

MR CHEUK: Yes, we have served it, and actually, we received notice from my learned friend the plaintiff, that they asked for excuse of attendance at this hearing and they are …

COURT: You have a copy of the letter?

MR CHEUK: Yes, they wrote us a letter, however, we just received this morning at 9.35, they -- but I received the letter by my Blackberry, coming from our office …

COURT: So maybe you just read out the letter, the.

MR CHEUK: Yes, thank you, Master. It says:

‘We refer to the hearing of the 1^st and 2^nd defendants’ summons scheduled for 27 April 2017, at 9.30 am … (reads) to please excuse our absence at the hearing.’

COURT: ‘Unless the -- by consent, unless the plaintiff do exchange his witness … (reads) fact on the plaintiff’s solicitors on or before 4 pm on 4 May 2017.’

So both have the same deadline.

MR CHEUK: Yes.

COURT: ‘And the costs of the application be -- 1^st and 2^nd defendants forthwith, summarily assessed at 800 … (reads) from court attendant as solicitors on record.’

You don’t just tell your friend that you are not going to attend and ask the court to have that indulgence, unless you’ve got prior consent from the court.

MR CHEUK: Yes.

COURT: So that would be the order for today.

MR CHEUK: Okay, thank you, Master.”

Mr Ching’s interpretation of the Transcript, and his submissions arising

14.Mr Ching pointed to the line “So both have the same deadline”attributed to Master K Lo.  He suggested that it was in fact a question from Master K Lo.  He suggested further that Master K Lo was there asking Mr Cheuk whether the parties had agreed on the same deadline.  Mr Ching then pointed to the “Yes” attributed to Mr Cheuk.  He suggested that it was an affirmative answer from Mr Cheuk. Mr Ching then submitted that Mr Cheuk had misled the Master into believing that the parties had actually agreed on the deadline for performance.  That being the case, and as Master Lo’s Order did not reflect the agreed terms, Mr Ching submitted that the parties should go back to Master K Lo for amendment or variation.

No reasonable prospect of success

15.I have considered the Transcript and Mr Ching’s submissions.  I am of the view that Mr Ching’s interpretation is fanciful.  In my view, a reasonable reading of the Transcript is this, that Master K Lo, having made the Order, made the observation that both parties would have the same dead­line in exchanging witness statements.  It was not transcribed as a question.  The “Yes” attributed to Mr Cheuk was merely an acknowledgement to Master K Lo’s observation.  In my view, the Transcript adds nothing to the plaintiff’s case, and does not support the proposed appeal.

16.In my view, and for the reasons I have set out in the Judgment, the proposed Grounds 1(a), 1(b) and 1(e), with or without the Transcript, have no reasonable prospect of success.

Some other reasons in the interests of justice to grant leave?

17.At paragraph 40 of his written submissions, Mr Ching submitted that:

“Alternatively, the application for leave to appeal ought to be allowed on the limb that there are some other reasons in the interests of justice why the appeal should be heard. The Plaintiff submits that the affirmations filed by the Defendants herein are misleading as they did not give the full picture to the court. The issue of whether or not it was deliberation on the part of an officer of the court should be scrutinized by the court,and if it was, then there ought to be sanction. The Court of Appeal should be given the chance to do so, and leave to appeal ought to be granted to sfford [sic] the Court of Appeal such opportunity, in the interests of justice.”

18.Mr Ching’s proposition is a bold one.  The effect of his submissions is that leave should be granted so that the Court of Appeal can have the opportunity to “scrutinize” certain alleged conduct of an officer of the court, not for the purpose of deciding any appeal, but for the purpose of imposing sanction on that officer.  Mr Ching has produced no authority in support of this limb of his submissions.  I have no hesitation in rejecting it.

Disposal

19.I dismiss the Summons for Leave to Appeal and Stay.  I also dismiss the Summons for Further Time.

20.I make an Order nisi that the plaintiff should bear the costs of and occasioned by both Summonses, to be taxed if not agreed.  Any submissions for variation of the Order nisi should be served and filed within 10 days of this Decision.

Mr Ching Ming Yu, of Ching & Co, for the plaintiff

Ms Bianca Yu, instructed by Holman Fenwick Willan, for the 1^st and 2^nd defendants