Ye Jinxiang v. Kam Ping Kwong

CACV 588/2018

[2019] HKCA 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 588OF 2018

(ON APPEAL FROM HCAP 25/2012 AND HCMP 3548/2016)

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(Heard together pursuant to the Order of
Master Lo dated 8 December 2017)

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JUDGMENT

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

1.In this appeal, the Plaintiff seeks to appeal against the decision of Deputy High Court Judge Keith Yeung SC of 5 December 2018 refusing him leave to appeal against the decision of Master Lo out of time.  The decision of the master was made in the context of garnishee proceedings against the Government in respect of debts allegedly owed to the Defendant. 

2.He did not seek leave to bring this appeal. 

3.It was held by this Court in the recent judgment in Leung So Hung Siem v Carson Wen [2019] HKCA 94 that the refusal to grant extension of time to bring an appeal against a decision of a master in the Court of First Instance is an interlocutory decision.  An appeal against such decision is subject to the leave requirement under Section 14AA of the High Court Ordinance.  

4.After the lodging of the appeal, the Registrar of Civil Appeals referred the solicitors for the Plaintiff to Leung So Hung Siem v Carson Wen, supra.  In the written submissions of 28 January 2019 and the supplemental submissions, his solicitors attempted to argue that the subject decision under appeal is a final decision because there was a determination that the Government is not a debtor of the Defendant.  The solicitor also referred to the application test alluded to by Ribeiro PJ in Sam Woo Bore Pile Foundation Ltd v China Overseas Foundation Engineering Ltd FAMV 21/2007.

5.We do not accept the submissions.  Whilst the underlying reasoning for refusing extension of time involves the analysis of the Government’s liability to the Defendant, the decision of the Deputy Judge remains to be a decision on refusal to grant extension of time to appeal against the decision of the master.  Applying the application test, since the grant of extension would only enable an appeal to be entertained instead of finally disposing of the same, the decision of the Deputy Judge is obviously interlocutory in nature. 

6.The present case is indistinguishable from the situation in Leung So Hung Siem v Carson Wen, supra.  Thus, without leave, the present appeal is incompetent.

7.For these reasons, we strike out the appeal and dismiss the same.  We also direct that if the Intended Garnishee wishes to seek costs in respect of the appeal, a statement of costs should be lodged and served within 21 days from the date of handing down of this judgment.  After that, the Plaintiff could lodge comments on the statement of costs within 14 days.  The Court will then determine the issue of costs on the papers.

Raymond Cheung & Chan, for the plaintiff/judgment creditor