Miss Leung So Hung Siem v. Mr Carson Wen and Others

CAMP 242/2019

[2019] HKCA 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 242 OF 2019

(ON AN INTENDED APPEAL FROM HCA 121 /2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.This is the plaintiff’s renew application for leave to appeal out of time against the decision given by Deputy High Court Judge Keith Yeung (as Keith Yeung J then was, “the Judge”) on 29 March 2018 dismissing the plaintiff’s appeal against Master K H Hui’s decision made on 17 November 2017.

2.Master Hui’s order was that: (1) upon the application by the 1^st, 2^nd , 4^th, 5^th and 6^th defendants (collectively “the defendants”), the plaintiff was to provide further and better particulars of the further and better particulars of the Statement of Claim provided by the plaintiff on 5 June 2017; (2) the time for the defendants to file and serve their Defence and Counterclaim be extended to 28 days from the date the plaintiff filed the further and better particulars ordered; and (3) the plaintiff paid the defendants the costs of the application summarily assessed at HK$37,000, within 28 days from the date of the decision. 

3.The plaintiff’s application for leave to appeal was refused by the Judge on 19 September 2019.[1]

4.Having considered the plaintiff’s written submissions, we consider it is appropriate to determine the present application on paper without an oral hearing, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.     

HCA 121/2017

5.The plaintiff brought the action below (HCA 121/2017) against the defendants for HK$ 2.5 billion said to be outstanding fee for introducing certain investors and for rendering services to the defendants.  For the present purpose, it is not necessary to go into the details of the claim.  It suffices to say that the Amended Statement of Claim, prepared by the plaintiff acting in person, has not properly set out the basis of the claim and the cause(s) of action against the defendants.  Nor has it identified or sufficiently particularised the transactions giving rise to the claim.    

6.On 8 May 2017, upon the defendants’ application, Master K H Hui ordered the plaintiff to give specific discover of documents and to serve further and better particulars of the Statement of Claim.  On 7 June 2017, the plaintiff served a set of further and better particulars in purported compliance with the order.

7.On 17 November 2017, upon the application of the defendants, Master Hui made the order mentioned in paragraph 2 above.  On 1 December 2017, the plaintiff served a set of further and better particulars in purported compliance of the order.  Prior to this, however, the plaintiff had on 27 November 2017 filed a notice of appeal against Master Hui’s Order.  On 29 March 2018, the Judge handed down his decision dismissing the appeal against the 1^st, 4^th and 5^th defendants, but allowing the appeal against the 2^nd and 6^th defendants on the ground that they were not legal entities and had no capacity to join in the application for further and better particulars.[2]

8.In the meantime, on 21 July 2017, Master J Wong ordered that the Amended Writ of Summons and the Amended Statement of Claim be struck out as against the 3^rd defendant.  The plaintiff’s appeal against Master Wong’s order was dismissed by the Judge on 3 July 2018.[3]

9.On 26 April 2018, Master Lui ordered that the Amended Writ of Summons and Amended Statement of Claim be struck out as against the rest of the defendants.  The plaintiff’s application for leave to appeal out of time against Master Lui’s order was dismissed by Mr Recorder Houghton SC on 16 July 2018.[4]  The plaintiff’s application for leave to appeal was dismissed by the Recorder on 29 April 2019.[5]   

The present application

10.Despite the dismissal of the action in its entirety, the plaintiff issued a summons on 11 July 2019 seeking leave to appeal the Judge’s 29 March 2018 decision.  After the Judge dismissed the application on 19 September 2019, the plaintiff issued the present summons to renew her application for leave to appeal.  

11.On 9 October 2019, the Registrar of Civil Appeals (“the Registrar”) directed that in light of the dismissal of HCA 121/2017, the summons, which is futile, is liable to be struck out, and should the plaintiff object to this, she should lodge a written submission to support her objection. 

12.On 25 October 2019, the plaintiff lodged a bundle of documents with the heading “Summons and written submission for adding new fact and new evidence”, which comprise a written submission, and a summons and an affirmation for leave to adduce new facts and new evidence in CACV 580/2018[6]. There is no appreciable relevance of the summons and the affirmation.  On 30 October 2019, the Registrar of Civil Appeals duly directed that they would not be considered by the Court.

13.On 1 November 2019, the plaintiff lodged another four-page document bearing the heading “written submission”. 

14.Then on 8 November 2019, the plaintiff wrote to the Court to say that in CACV 580/2018, the 1^st defendant, who was the respondent in that appeal, had informed the Court that he would not file affidavit in relation to the new evidence that the plaintiff sought to adduce in that appeal.  Although CACV 580/2018 concerned a statutory demand based on the costs order made in HCA 121/2017, the materials and applications filed in that appeal have no bearing on the present application.     

15.In none of her written submissions had the plaintiff addressed the reason underlying the Registrar of Civil Appeals’ view that the present application is liable to be stuck out.  She had offered no explanation, let alone good reason, why the Court should not dismiss her application having regard to fact that her claim in HCA 121/2017 has been struck out and the entire action has been dismissed.  The plaintiff merely said she intended to apply to set aside the statutory demand served on her, to adduce new fact and evidence for her intended leave applications and to appeal against some of the orders made on her claim against the defendants, in addition to making serious, but unparticularised, allegations against the defendants.

16.We are of the view that the plaintiff’s application for leave to appeal the Judge’s decision should be dismissed for the following reasons:

(1) The plaintiff’s intended appeal was out of time by more than 15 months.  This is very serious delay.  As the Judge noted, no satisfactory explanation was given for the delay.

(2) As to the merits of the intended appeal, the summons seeking leave to appeal has not set out any grounds of appeal.  It is not clear from reading the submissions and materials adduced by the plaintiff what exactly are the grounds of the intended appeal.  The intended appeal does not enjoy any real prospect of success.

(3) Further and critically, given that the entire action had been dismissed, the intended appeal serves no useful purpose.    

Disposition

17.Accordingly, we dismiss the plaintiff’s summons dated 3 October 2019.  We make no order as to the cost of the application, as the Registrar of Civil Appeals’ directions did not require the defendants to participate in the present application.

18.As the plaintiff’s application is wholly devoid of merits, we make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, Cap. 4A that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.

The plaintiff, unrepresented, acting in person.

Siao, Wen & Leung for the 1^st, 4^th and 5^th defendants.