United Muslim Association of Hong Kong and Others v. Yusuf Yu and Others

CACV 139/2015

[2019] HKCA 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 139 OF 2015

(ON APPEAL FROM HCA 640/2012)

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J U D G M E N T

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

1.We handed down our judgment dismissing the appeal on 1 August 2018. By a notice of motion of 13 August 2018, the 2^nd to 7^th Plaintiffs seek leave to appeal to the Court of Final Appeal [“the Leave Application”].

2.Further, these plaintiffs (except the 4^th Plaintiff) issued a summons on 31 August 2018 seeking a stay of execution of the judgment below.  They also sought to stay the bankruptcy proceedings under HCB 3485/2018 pending the outcome of the Leave Application.  They further sought leave to adduce new evidence.

3.For the Leave Application, these plaintiffs formulated two grounds of appeal in the notice of motion as follows,

“ 1. The Learned Justices failed to take into account that the Appellant (2^nd Plaintiff’s request for producing fresh evidence on various aspects including but not limited to 3^rd Plaintiff’s membership, the forgery and the audited accounts of the 1^st Plaintiff. The production of the new evidence can remedy the incompleteness and rebuttal evidence to rebut the false evidence submitted by the Defendants in the trial.

2. The Learned Justices wrongly conclude that the 2^nd Plaintiff has no valid ground of appeal against the factual findings of the Learned Judge of the original trial. i.e. the factual findings of the Learned Judge were inherently contradictory.”

4.The first ground is plainly without merit. There was no application for leave to admit fresh evidence when the appeal was argued before us.  This was so notwithstanding that in an earlier judgment of 13 November 2017 handed down by Lam VP and Poon JA refusing to grant any stay of execution the Court already underscored that fresh evidence could not be admitted without proper application for admission of such evidence.  Since then, no summons had been issued for admission of fresh evidence.  A firm of solicitors came on record to represent these plaintiffs on 15 June 2018.  That firm proceeded to lodge skeleton submissions in the appeal and no step was taken to apply for admission of fresh evidence. 

5.The history of legal representation was set out in detail in our judgment of 1 August 2018.  Right up to the end of the hearing of the appeal, these plaintiffs made no application for admission of fresh evidence.

6.Even now, notwithstanding the summons of 31 August 2018, there was no cogent explanation by these plaintiffs as to the absence of application for admission of fresh evidence before we handed down the judgment of 1 August 2018.  Further, there is no explanation on the failure to procure such evidence before the trial despite due diligence by the plaintiffs. The mere assertion that the evidence was discovered after the trial is not good enough when there is no evidence as to attempts to obtain the relevant evidence and how these plaintiffs managed to obtain such evidence recently.

7.The second ground is equally unmeritorious.  We have explained in the judgment of 1 August 2018 the reason for our holding that the plaintiffs failed to raise proper grounds for challenging the findings of fact of the judge.  In the submissions of the plaintiffs, they referred to [50] to [54] of that judgment.  With respect, we cannot see how those submissions support Ground 2 as formulated in the notice of motion.

8.In any event, none of the grounds raised in the notice of motion involve a point of great, general or public importance.  Nor do we see any other reason for submitting this case to the Court of Final Appeal.  The threshold requirement in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance for leave to appeal is not satisfied.

9.For these reasons, we refuse to grant leave and dismiss the notice of motion of 13 August 2018.

10.With the dismissal of the Leave Application, there is no basis for granting any stay of execution or admission of fresh evidence.  This court has no original jurisdiction to entertain any application for stay of the bankruptcy proceedings.  The summons of 31 August 2018 is also dismissed.

11.We order the 2^nd to 7^th Plaintiffs to pay the Defendants’ costs of the notice of motion.  We also order the 2^nd, 3^rd, 5^th, 6^th and 7^th Plaintiffs to pay the costs of the Defendants in respect of the summons of 31 August 2018.  These costs are to be taxed if not agreed.

The 2^nd to 7^th plaintiffs acting in person

Mr Azan Marwah, instructed by GPS McQuhae LLP, for the 1^st to 3^rd defendants