Case Document

100%Judiciary

DCCJ 4431/2017

[2018] HKDC 1522

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4431 OF 2017

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BETWEEN
	CHEUNG NGAM LAM（張岩林）	Plaintiff
and
	CHEUNG CODY（張文浩）	Defendant

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Before: His Honour Judge MK Liu

Date of Defendant’s written submissions: 3 December 2018 and 12 December 2018

Date of Plaintiff’s written submissions: 7 December 2018

Date of Decision: 17 December 2018

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DECISION

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Introduction

1.On 8 November 2018, I heard the defendant’s appeal against the decision made by Master David Chan on 3 May 2018, by which the master had refused to set aside the judgment entered against the defendant on 10 January 2018. On 13 November 2018, I handed down a decision (“the Appeal Decision”[1]), in which I dismissed the appeal lodged by the defendant. The effect of the Appeal Decision is that the judgment stands and the defendant is not entitled to set it aside.

2.By a summons filed on 26 November 2018 (“the summons”), the defendant seeks leave to appeal against my decision (“the leave application”) and stay of execution of the judgment pending the determination of his appeal to the Court of Appeal (“the stay application”). At the time of the filing of the summons, the defendant also filed an affidavit in support of the summons (“the affidavit”).

3.The facts have been set out in the Appeal Decision and I shall not repeat the same here. For ease of reference, the abbreviations used in the Appeal Decision are adopted herein.

4.I have directed the parties to provide written submissions, and I now make a decision on the summons on paper.

The principles

5.The principles concerning leave to appeal are well known. Leave to appeal from this court to the Court of Appeal can only be granted if 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^{^[2]}. Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable^{^[3]}.

6.In respect of admission of new evidence in an appeal, the Ladd and Marshall[4] conditions apply to all appeals[5]. Further evidence is admissible on an appeal only where such evidence:-

(1)   could not have been obtained at the trial or at the hearing with reasonable diligence;

(2)   would or might, if believed, have a very important effect on the mind of the court; and

(3)   is of a sort which inherently is not improbable.

Analysis

7.The defendant tries to put in some new evidence by filing the affidavit in support of the summons. I have read the affidavit. The new evidence mentioned in the affidavit clearly does not comply with condition (1) in Ladd v Marshall and cannot be admissible evidence in an appeal from this court. Those new matters cannot assist the defendant at all. I shall consider the leave application and the stay application solely based upon the admissible evidence before the court in the hearing on 8 November 2018.

8.Apart from mentioning some new matters, the defendant also put forward some arguments in the affidavit. Having read those arguments and the written submissions provided by the defendant, with respect, I am of the view that the defendant has not put forward any ground which is reasonably arguable.

9.In the Appeal Decision, I have ruled that the judgment is a regular judgment, and I have also ruled that none of the grounds put forward by the defendant in the hearing on 8 November 2018 has a real prospect of success. Reasons for such rulings are provided in that decision. It would not be necessary for me to repeat those reasons here. Suffice to say that, in my view, the defendant has not put forward anything showing a reasonable prospect of success in overturning my rulings in the Appeal Decision.

10.In my judgment, the appeal proposed by the defendant does not have a reasonable prospect of success. There is also no reason why the appeal should be heard in the interests of justice. There is no merit in the leave application.

11.Since there is no merit in the leave application, there is no reason to grant any stay of execution to the defendant. The stay application must also be refused.

Disposition

12.Accordingly, the summons must be dismissed. Costs should follow the event. I dismiss the summons with costs to the plaintiff forthwith, with a certificate for counsel. Those costs are summarily assessed at HK$10,000.