Wong See Yin v. Tin Wan Tung

CACV 78/2019

[2020] HKCA 666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2019

(ON APPEAL FROM HCB 5289/2016)

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Before:  Hon Lam VP, Cheung and Au JJA in Court

Dates of Written Submissions: 22 April 2020, 15 June 2020 and 2 July 2020

Date of Judgment:  13 August 2020

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JUDGMENT

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

Introduction

1.On 24 April 2020, the Debtor, Mr Wong See Yin filed a Notice of Motion[1] to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 25 March 2020, [2020] HKCA 174.  In that judgment we dismissed the Debtor’s summons of 25 June 2019 for leave, inter alia, to adduce fresh evidence in his appeal (filed on 18 February 2019) against Ng J’s bankruptcy order made against him on 21 January 2019 and for leave to oppose the petition in HCB 5289/2016 on the ground that all orders and judgments leading to the petition were obtained by fraud.  In the same judgment, under Mr Tin Wan Tung’s summons of 25 July 2019, we also ordered that:

(1)  Mr Wong shall within 28 days pay into court a sum of $300,000 being the security for Mr Tin’s costs of the appeal;

(2)  Pending the aforesaid payment of the security, the proceedings of the appeal be stayed;

(3)  In default of the aforesaid payment of the security, the appeal shall stand dismissed without further order with costs to be taxed and paid by Mr Wong; and

(4)  Mr Wong is to pay Mr Tin the costs of the summons summarily assessed at $100,000.

2.By reason of the General Adjournment Period arising from COVID 19 pandemics, the Court was closed until 8 May 2020.  Pursuant to Section 71(1A) of the Interpretation and General Clauses Ordinance Cap 1, the time for payment of security was extended to 8 May 2020.  

3.Mr Wong did not make the payment for security before such extended deadline.  The appeal was dismissed on 9 May 2020 pursuant to the order of 25 March 2020. 

Application for leave to appeal to the CFA

4.Pursuant to the Registrar of Civil Appeals’ directions on 4 June 2020, 9 June 2020 and 29 June 2020, Mr Wong’s Notice of Motion is treated as his written submissions in support of the application for leave to appeal.  Mr Tin’s solicitors lodged written submissions on 15 June 2020 to oppose the application.  Mr Wong lodged his reply submissions on 2 July 2020.

5.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

6.Though Mr Wong requested by a letter of 9 July 2020 for the matter to be adjourned pending his legal aid appeal, we decline to adopt such a course since all the submissions had been filed.  In light of our view on the merits, there is no good reason for delay in the processing of the matter.

7.We do not propose to consider Mr Wong’s Notice of Motion and his submissions at length in this judgment.  It suffices to point out that:

(a)  His documents set out argumentative submissions without addressing our reasons for dismissing his application for leave to adduce additional evidence and for granting the order of security for costs;

(b)  In particular, as far as his so-called argument on substantive merit is concerned, he advanced nothing which could give rise to valid legal reason for him not being bound by the outcome of CACV 160/2016, the costs order of L Chan J of 26 April 2013 in HCA 1801/2010 and HCA 167/2011 and the Allocaturs of 2 March 2016;

(c)  There is no arguable legal basis for impugning our holding that it was perfectly usual for Ng J to grant a bankruptcy order in the circumstances as he did.  

8.Despite the length of Mr Wong’s Notice of Motion and submissions, we cannot discern any reasonably arguable ground of appeal.

9.Nor could we find any question of great general or public importance or otherwise ought to be submitted to the CFA for decision. 

10.For these reasons, we refuse to grant leave to appeal to the CFA.  Mr Wong’s Notice of Motion is dismissed, with the costs of this application to be paid by Mr Wong to Mr Tin. Such costs are fixed on a gross sum basis at $30,000.

The debtor acting in person

Joseph Li & Co, for the creditor