Cheung Man Yuen v. Chau Wan Kai Jonas

DCCJ 3353/2018

[2019] HKDC 1315

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3353 OF 2018

________________

________________

_________________________

DECISION

_________________________

1.This is an application for leave for appeal and for stay of execution of the Writ of Possession.

Background

2.The factual background of the case has been stated in details in the Reasons of Decision handed down on 25 July 2019 (the “Reasons of Decision”) so I need not repeat it here.

3.From the defendant’s supporting affirmation dated 2 May 2019, the draft grounds of appeal appeared to be, as translated, “Judge Leong did not have enough time to read the defendant’s documents and submissions” (“First Ground”) and “Judge Leong only accepted documents provided by the Plaintiff’s solicitors and did not accept the documents and submissions of the defendant” (“Second Ground”).

4.Such draft grounds of appeal, as so appeared to be, are clearly lacking in particulars and inappropriate. During the call-over hearing on 30 July 2019, the Court ordered, inter alia, that the defendant should take out an application to amend his draft grounds of appeal if necessary no later than 14 days prior to the present hearing.

5.The defendant failed to do so. The court would therefore proceed on the basis that the First Ground and the Second Ground were the only draft grounds of appeal.

The legal principle

6.The legal principle is trite (District Court Ordinance (Cap.336) Section 63A(2)) and needs not be repeated here.

The grounds of appeal

7.On the morning of the date of the hearing, the defendant submitted a letter (which was dated 10 September 2019, that is, the day before the hearing). The plaintiff argued that this letter was raising new grounds of appeal and objected. The defendant claimed that there were no new grounds of appeal, but that it was merely a written submission.

8.The court noted that the letter contained 6 paragraphs under the title “Reference is made to items of Reasons For Decision dated 25 July 2019”. Whilst paragraph 1 is more or less a repeat of the first ground of appeal, paragraphs 2 to 6 now provide particulars to the second ground of the appeal in that it now referred to specific paragraphs in the Reasons of Decision and the reasons why the defendant did not agree with the courts’ finding.

9.Having perused these paragraphs (and also the 3 paragraphs under the title “Conclusion for Permit to Appeal”), the courts would observe that, on one hand, it was clearly undesirable that the defendant appeared to be considerably expanding his Second Ground by giving particulars in 5 paragraphs, on the other hand, one must consider whether, in reality, there was prejudice to the plaintiff.

10.The court found that the defendant was disputing the factual findings of the court without raising new (or indeed any) arguments as to why the court has erred in its findings of facts. This was merely a rehashing of evidence and submissions already given by the defendant in the previous hearing.

11.Indeed, the defendant had repeatedly confirmed to the court that the basis of his appeal, in summary, was simply that the court should have accepted his evidence and submissions instead of the plaintiff’s at the previous hearing.

12.In such case, the argument of whether the defendant was raising new draft grounds of appeal or merely making a written submission would be largely irrelevant in that, either way, the plaintiff’s position would not be prejudiced since he was not caught out by any new arguments or submissions supporting the appeal.

13.I agree with the submission of Mr. Tam, counsel for the plaintiff: the First Ground is simply a bare assertion: there was no particulars specifying which part of defendant’s evidence or argument that the court did not have enough time to read, and how that had caused “misinterpretations” in the any specific factual findings. The Second Ground, whether in its “original” form or after its “expansion” to some 5 paragraphs, is no more than a display of a lack of understanding of the adversarial legal system: in any particular case, the court may be bound to accept certain evidence and submissions and reject others. The fact that the court has rejected one party’s evidence or submission per se cannot be a ground of appeal of that party.

14.As such, I see no reasonable prospect of success of an appeal and I also see no reason in the interest of justice for an appeal to be heard.

15.I would order that the defendant’s applications for leave to appeal and for stay of execution be dismissed with costs to the plaintiff to be taxed if not agreed, with certificate for counsel.

Mr Tasman Tam, instructed by Yip, Tse & Tang, for the plaintiff

The defendant appeared in person