Sky Motion Holdings Ltd v. China Create Capital Ltd

HCA 1151/2019

[2021] HKCFI 405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1151 OF 2019

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DECISION

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1.On 5 January 2021, I heard an application made by P against D for summary judgment under Order 14. At the end of the hearing, I granted unconditional leave to defend to D and ordered that costs of the application be in the cause of the proceedings (“the O14 Decision”). Reasons for the O14 Decision were handed down on 7 January 2021. On 18 January 2021, P took out a summons for leave to appeal against the O14 Decision (“the Leave Summons”). The subject matter now before the court is the Leave Summons. This decision should be read together with the Reasons. For ease of reference, the abbreviations used in the Reasons are adopted herein.

2.I have directed that the Leave Summons be determined on paper without an oral hearing.  The parties have provided me written submissions pursuant to the directions given by this court.  I have considered those written submissions.

The principles

3.Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard^[1].

4.Granting unconditional leave to defend is a decision within the discretion of the court and would rarely be interfered by the Court of Appeal.  This is especially so if the trial issue is on a question of fact.  As said by Kwan JA (as she then was) in Chu Yin Fan v. Inter Rivers[2]:

“9. The decision whether to dismiss an application for summary judgment, or to grant unconditional leave, or conditional leave is a matter within the discretion of the judge. In an appeal against the granting of unconditional leave, the Court of Appeal will examine whether the judge’s reasons disclose any errors of law or misapprehension of material fact, or whether it can be said that the order granting unconditional leave was so plainly wrong that an appeal court had to interfere with the judge’s exercise of discretion (Shek Sau Mui v Poon’s (Sun Kee) Co Ltd, HCMP 1397/2008, 13 August 2008, Yuen JA).

10.     Where the triable issue is on a question of fact (as opposed to a question of law), it would be most unlikely for the Court of Appeal to interfere (Ng Lung Sang Anita v Lam Yuk Lan [1999] 4 HKC 106 at 109I to 110F; Treewell Development Ltd v Tsang Chun Wah [2003] 4 HKC 401 at §§10 to 11), as an appellate court would rarely disturb the decision of a lower court on matters of fact as long as a judge had arrived at a reasonable view and it had to be an exceptional case before an appellate court would disturb the order.”

5.In order to overturn a decision made by the court as a result of exercise of a discretion, it has to be shown that the relevant decision exceeded the generous ambit within which reasonable disagreement is possible, and not merely that the appellate court would prefer a solution which the court below had not chosen.  The Court of Appeal’s function is not to exercise the discretion afresh, but will only interfere if it is shown that the discretion was wrongly exercised on principle or the court below had taken into account irrelevant consideration or had ignored relevant consideration^[3].

6.Counsel for P refer me to some English authorities.  In my view, the approach as set out in those English authorities is same as the one set out by the Court of Appeal in Chu Yin Fan.  For example, in Alliance & Leicester Building Society v Ghahremani[4], Hirst LJ said:

“… on an Order XIV application a judge at first instance decides in the exercise of his discretion that unconditional leave to defend should be granted on the ground that a triable issue dependent on questions of fact, the Court of Appeal will not interfere unless they are satisfied there is no fair or reasonable probability of the defendant having a real and bona fide defence, for example because the evidence on which the defendant relies is inherently incredible, or because it is inconsistent with contemporary documents or other compelling evidence. In its evaluation the court must look at the overall situation and at the evidence as a whole, and not merely confine its attention to the conflicting affidavits …”

7.In any event, if there is any difference between the approach mentioned in the English authorities cited by P and the approach set out by the Court of Appeal in Chu Yin Fan, I am bound to adopt and to follow the latter. 

Merits of the leave application

8.As set out in the Reasons, I am of the view that the “no full payment” defence is an arguable defence.  For this reason, I have granted D an unconditional leave to defend.

9.With no disrespect to counsel for P, notwithstanding the various grounds set out in the Draft Notice of Appeal annexed to the Leave Summons and the points made in P’s written submissions, counsel for P are merely trying to rerun the submissions before the court in the Order 14 application.  I have explained in the Reasons as to why I am unable to accept those submissions.  I am not prepared to repeat what I have said in the Reasons.

10.The O14 Decision is a decision made by me as a result of the exercise of the discretion vested in this court.  I am not persuaded that P has shown any ground upon which the Court of Appeal may interfere and overturn the O14 Decision.  In my view, there is no reasonable prospect of success in the appeal proposed by P.

11.Counsel for P are not relying upon the “some other reason in the interest of justice” limb to seek leave to appeal.  In any event, I do not see any reason to grant leave under this limb.

12.In my judgment, P’s leave application is devoid of merits.

Disposition

13.I dismiss the Leave Summons.

14.There be a costs order nisi that costs of the Leave Summons be paid by P to D forthwith and be summarily assessed.  There be leave to D to file and serve a bill of costs for summary assessment within 7 days after the costs order nisi becoming absolute, and leave to P to file and serve a written reply to the said bill within 7 days thereafter.

15.I thank all counsel for the assistance rendered to the court.

Written submissions of Mr Patrick Chong and Mr Michael Ng, instructed by Au & Vrijmoed, for the plaintiff

Written submissions of Mr Clark Wang, instructed by King & Wood Mallesons, for the defendant