Song Lian Zhong and Others v. Chan Sze Wan and Others

CACV 135 /2017

[2019] HKCA 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2017

(ON APPEAL FROM HCA NO 277 OF 2013)

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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 12 October 2018, we handed down our judgment dismissing the appeal brought by the 1^st, 3^rd and 4^th defendants who sought to challenge the findings of primary fact made by Recorder Teresa Cheng, SC in a judgment after a 14‑day trial. The defendants filed a notice of motion on 9 November 2018 seeking leave to appeal against our judgment to the Court of Final Appeal.

2.We will determine this application on paper without an oral hearing.

3.Five questions were set out in the notice of motion as questions of great general or public importance.  We do not propose to set them out.  The defendants also rely on the “or otherwise” limb.

4.The questions all relate to a pleading objection that was raised for the first time on appeal in the supplemental notice of appeal lodged by the defendants.  The questions are said to be of great general or public importance because they will “affect virtually all litigants who wish to know how a civil claim should be conducted” and the answers will provide “authoritative guidance to practitioners as to general conduct, procedures and management of defining the controversy in an adversarial system of justice.”

5.We have dealt with this pleading objection in our judgment at §§89 and 90 and rejected it as without merit.  We are not persuaded it is reasonably arguable.  Further, as submitted by Mr John Litton and Mr Tony Chow, the questions sought to be raised are entirely fact‑sensitive and the legal principles regarding the pleading of facts and not evidence are well established.  We decline to grant leave to appeal in respect of any of the questions in the notice of motion.

6.We see no basis to exercise our discretion to grant leave under the “or otherwise” limb.

7.For the above reasons, we dismiss the application for leave to appeal.  Costs of the application should follow the event.  We order the 1^st, 3^rd and 4^th defendants to pay the costs of the plaintiffs of this application, with a certificate for two counsel.

8.Having considered the statement of costs submitted by the plaintiffs for summary assessment, we think the amount claimed is reasonable and will allow the sum of $67,117 in full.

Mr John Litton and Mr Tony Chow, instructed by C L Chow & Macksion Chan, for the 1^st to 3^rd Plaintiffs (Respondents)

Mr Jeremy M F Cheung and Mr Harrison C H Cheung, instructed by Lui & Law, for the 1^st, 3^rd and 4^th Defendants (Applicants)