Emperor Prestige Credit Ltd v. King Pak Fu

HCA 1008/2019

[2021] HKCFI 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1008 OF 2019

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D E C I S I O N

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1.By a decision dated 19 February 2021 (“Decision”), this Court dismissed the Plaintiff’s appeal against the Master’s decision, whereby the Master set aside service of the writ and substituted service on the Defendant. This is the Plaintiff’s application for leave to appeal against the Decision.

2.There are 2 grounds of appeal:

(1)     That this Court erred in unreservedly applying Deng Minghui v Chau Shuk Ling [2007] 1 HKLRD 905 in lieu of the more comparable decisions of Du Huizhen v Chen Mei Huan, HCA 1176/2012, 15 July 2014, DHCJ Wilson Chan (as he then was); and Christow Corp Trust v Asiacom International Holdings Ltd [2015] 2 HKLRD 1134, Master Harold Leong.  The facts as found in the Decision were very similar to those in Du Huizhen.  The fact that this Court and DHCJ Wilson Chan came to different decisions was a good reason for this matter to be looked at afresh by the Court of Appeal.

(2)     This Court erred in holding that personal service of the writ was impracticable.  There was no need for the Plaintiff to apply for service out.

Legal principles

3.The applicant has to show that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard: s.14AA(1) and (4) of the High Court Ordinance, Cap 4.

4.Reasonable prospects of success means that the prospects of succeeding must be reasonable and more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, at §17, Le Pichon JA.

5.The applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstration that the appeal will probably succeed: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515, at §19, Chu J (as she then was).

6.An applicant may rely on the “interests of justice” limb if it can be shown that the appeal would present the Court of Appeal with an opportunity to provide much needed clarification on an area of the law or to entertain an argument that the law ought to be changed or the question is one of general principle to be decided for the first time, or a ruling would be to the public advantage: Xu Ying v Xu Wihong [2020] HKCFI, 2826, §5, DHCJ MK Liu; and Hong Kong Civil Procedure 2021, §59/2A/4.

Ground 1

7.Deng Minghui is binding on this Court.  With respect to my learned brothers, I fail to see how the holdings in Du Huizhen and Christow Corp Trust could be consistent with the Court of Appeal’s express overruling of the principle that “irrespective of where the defendant was at the time of service, if he had actually acquired knowledge of the proceedings he should not be allowed to complain about the service not being irregular and effective.”

8.Nothing in Deng Minghui nor Order 10, rule 1(2) limit the application of that authority to cases where the defendant remains out of jurisdiction following purported service.

9.The Decision held (at §26) that to ascertain the date of service before meeting the requirement of serving a defendant within the jurisdiction is putting the cart before the horse.  That holding was in fact consistent with Yongheng Nevada International Co Ltd v Chan Mau Tak [2000] HKC 584, 588A-C, Cheung J (as he then was).

10.Ground 1 has no reasonable prospect of success.  With respect, the interpretation of Deng Minghui needs no further clarification by the Court of Appeal.

Ground 2

11.The circumstances that the Plaintiff faced in terms of service and this Court’s views have been set out in §§30-42 of the Decision.  The present arguments of the Plaintiff now are but a re-run of previous ones.

12.The Decision had examined the principle in Myerson v Martin [1979] 1 WLR 1390 and the Defendant’s absence from Hong Kong for over half a year (§§39-41 of the Decision).  The Plaintiff’s criticism is about the way this Court exercised the discretion against the Plaintiff. 

13.However, even on the Plaintiff’s submission, the Defendant had been continuously out of Hong Kong for 2½ months since the date of purported service of the writ on 10 June 2019.  It is not even alleged that this Court has misunderstood the law or the evidence, or that the exercise of discretion was outside the generous ambit within which reasonable disagreement is possible.  There is no reasonable prospect of success on this ground of appeal.

Conclusion

14.None of the grounds of appeal put forward have reasonable prospects of success.  Nor is there any other reason in the interests of justice as to why the appeal should be heard.  I therefore dismiss the application.

15.Costs should follow the event and be to the Defendant.  However, this application did not involve any difficult issues of law that could justify solicitors’ research and preparation of skeleton submission when counsel was already briefed.  Nor did it justify the engagement of 2 fee earners.  I therefore summarily assess the Defendant’s costs, on a nisi basis, at $40,000.

16.I thank counsel for their assistance.

Written Submission by Mr Justin Ismail, instructed by Woo, Kwan, Lee & Lo, for the Plaintiff

Written Submission by Ms Jasmine Cheung, instructed by Gall, for the Defendant