Centaline Property Agency Ltd v. Lee Po Chu Feona

HCA 2054/2016 & HCA 2421/2016

[2021] HKCFI 1400

HCA 2054/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2054 OF 2016

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BETWEEN

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AND

HCA 2421/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2421 OF 2016

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BETWEEN

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(Heard Together)

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DECISION

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1.By the Order of Master Kot dated 20 January 2020 (“the Master’s Order”), these two actions have been set down for trial with 5 days reserved for HCA 2421/2016 (“the 2421 Action”) and 4 days for HCA 2054/2016 (“the 2054 Action”), to be heard one after the other before the same judge in the fixture list. Subsequently, the trial dates have been fixed. The trial in the 2421 Action will take place from 12 to 16 July 2021, and the trial in the 2054 Action will take place immediately thereafter, ie from 19 to 22 July 2021. The trial judge is a bilingual judge.

2.The pre-trial review (“PTR”) took place before me on 12 April 2021.  I made some case management decisions in the PTR (“the PTR Order”).  On 23 April 2021, Madam Lee[1] filed a summons in each action, seeking leave to appeal against two decisions made by me in the PTR Order.

3.The two decisions being challenged by Madam Lee are case management decisions.  The principles concerning leave to appeal against case management decisions have been clearly stated by Kwan JA (as she then was) in Wong Kar Gee Mimi v Severn Villa Ltd[2]:

“29. The principles on granting leave to appeal are well established. Leave can be granted if the court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. As the leave requirement was introduced largely to address satellite litigation on interlocutory issues which almost invariably gives rise to major delay and expense, so for the court to be satisfied that the appeal does have “reasonable prospects of success”, merely showing that the appeal is “arguable” and “not fanciful” would not be sufficient.

30. Even if the threshold test of reasonable prospect of success is satisfied, the court still retains discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of procedural economy and proportionality.

31. It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

1^st decision

4.The 1^st decision concerns whether there should be English/Punti interpretation in the trial.  In the PTR, Madam Lee requested that there should be English/Punti interpretation in the trial of the two actions, for she intended to retain Mr Jeevan Hingorani and Mr Lawrence Cheung to represent her in the trial.  Both Mr Hingorani and Mr Cheung represented Madam Lee in the PTR.

5.Mr Cheung is the counsel representing Madam Lee since the very early stage in these two actions.[3]  There is no dispute that Mr Cheung is a bilingual counsel.

6.After hearing submissions, I declined to accede to Madam Lee’s request.  This is the 1^st decision targeted by the appeal proposed by Madam Lee. 

7.I gave reasons for the 1^st decision in the PTR.  My reasons are as follows:

(1) The trial of these two actions would be before a bilingual judge.  In fact, all the parties in these two actions requested that the trial be heard by a bilingual judge.  Due to the fact that the trial would take place before a bilingual judge, the parties have not prepared English translation of the Chinese documents by 21 days before the PTR, as required by [6] of the Master’s Order.

(2) In the Listing Questionnaires filed by Madam Lee on 15 January 2020 in these two actions, Madam Lee said in Section C4 that it would be necessary for the case to be tried by a bilingual judge, because the approximate number of the documents in Chinese involved is over 300 pages. Further, there is a massive amount of WhatsApp conversations which are in Chinese.  In the 2054 Action, the witness statements filed by Centaline[4] are all in Chinese.

(3) Madam Lee has not translated all the Chinese documents to English.

(4) In these circumstances, whether counsel would have the ability to understand Chinese should be an important matter which Madam Lee has to take into account in choosing counsel.

(5) The trial in the 2421 Action would take place from 12 to 16 July 2021, and the trial in the 2054 action would start immediately thereafter, ie on 19 July 2021.  That means that the 2421 Action, or at least the hearing of the evidence in the 2421 Action, must be finished within the 5-day timeslot.  If evidence would need to be interpreted to English, that would significantly prolong the length of the trial.  Given the present time-arrangement, that would not be desirable.  

(6) Although no interpretation in the trial would have an impact on Madam Lee’s team, the problem would not be unresolvable.  One of the counsel retained by Madam Lee, Mr Cheung, is able to speak and understand Chinese.  One way to resolve the problem is that examination of witnesses be handled by the Chinese-speaking counsel.

(7) Having considered all these, in the exercise of my case management power, with no disrespect to Mr Hingorani, I declined to accede to Madam Lee’s request.

8.All the grounds set out in the draft notice of appeal in the 2054 Action have been included in draft notice of appeal in the 2421 Action (“the Draft 2421 NOA”).  For ease of discussion, I would focus on the Draft 2421 NOA.

9.The grounds of appeal set out in the draft 2421 NOA consist of 20 paragraphs and are prolix.  As submitted by Mr Paul Lam SC (leading Mr Bryan Lee) for JC[5], those grounds read like submissions rather than grounds of appeal properly-so-called.  Such an approach is contrary to the guidance repeatedly emphasized by the Court of Appeal.  As said by Lam VP in Gotland Enterprises Limited v Kwok Chi Yau^[6]:

“70. A notice of appeal should only set out grounds which in counsel’s view are reasonably arguable. The practice of lodging an appeal with ill-considered and unsatisfactory grounds of appeal, particularly those that provide no more than a lengthy critique of the judgment rather identify a justifiable basis for the Court of Appeal interfering in the decision of the judge below, is not acceptable. In future, the court will exercise tighter case management of the appeal process and the Registrar may bring such illegitimate notices of appeal to the attention of a judge for striking out consideration. In modern litigation ethos, appeals brought without proper grounds are regarded as abuse of process.”

See also Lam VP’s dictum in Yap Sui Kong v Yip Fong Tim^[7].

10.Grounds 1 to 18 in the Draft 2421 NOA concern the 1^st decision. In my view, there is no merit in these grounds.

(1) Grounds 1 and 2

Madam Lee complains that I have infringed her right to engage counsel of her own choice.  The flaw in this submissions is that the right to engage counsel of one’s own choice is not absolute.[8] In considering whether Madam Lee’s request should be acceded to, the court has to take into account other case management factors.  I am not persuaded that I have erred in principle in the exercise of my discretion in reaching the 1^st decision. 

(2) Ground 3

Madam Lee complains that I had already made decision on the matter before hearing submissions in the PTR.  There is no merit in this submission.  Obviously, before a hearing, a judge would have read the papers.  The judge may have also made some notes and may have a preliminary view.  However, that does not mean that the judge has already determined the matter.  After hearing submissions, the judge would then make the decision.  In the PTR, before making the 1^st decision, I have heard submissions from counsel.  In the course of hearing the submissions, I have asked some questions so that counsel would have an opportunity to address those matters.  I made the 1^st decision only after all these.  In my view, there is no merit in this complaint at all.

(3) Grounds 4 to 9

(a) Madam Lee complains that I failed to take into account JC’s Listing Questionnaire filed on 15 January 2020, in which JC did not request that the case be tried by a bilingual judge.

(b) There is no merit in this complaint.

(c) In Madam Lee’s Listing Questionnaire filed on 15 January 2021, Madam Lee stated that her preferred language for the trial is Punti and requested that the case be tried by a bilingual judge because a significant amount of documentary evidence and some witness statements are in Chinese.  In the Counsel’s Certificate filed by Madam Lee on 15 January 2021, the total time required on Madam Lee’s part in the 2421 Action is 10 hours.  The Counsel’s Certificate was signed by Mr Cheung alone.  The estimated length of the time taken up by Madam Lee in the 2421 Action as per her Listing Questionnaire is also 10 hours. Reading the Counsel’s Certificate together with Madam Lee’s Listing Questionnaire, the total time required on Madam Lee’s part was clearly estimated on the basis that the trial would be before a bilingual judge and there would be no interpretation of evidence during the trial. 

(d) In JC’s Listing Questionnaire filed on 15 January 2021, JC’s estimation of the total length of the trial would be 3-5 days.

(e) In view of all these, I am of the view that in the 2421 Action, if no interpretation is required, it would be able to finish the trial within the 5-day timeslot. However, if interpretation is required, it would be almost impossible to finish the trial within the allotted time.  That is why I mentioned the matter as set out in [7(5)] above in the PTR, which is a reason in support of the 1^st decision.

(4) Grounds 10 to 15

(a) Madam Lee says that I have misunderstood and wrongly relied upon [6] of the Master’s Order.  In that paragraph, the Master directed that if the case is being fixed before a monolingual judge, the parties should try to agree on the English translation of the Chinese document within 42 days after the case being set down, failing which the parties should arrange for documents to be translated into English and those translations should be ready by 21 days before the PTR.

(b) I drew the parties’ attention to this paragraph in the PTR.  In my view, if the trial is to be conducted entirely in English, the parties have to prepare English translations of all the Chinese documents in accordance with the Master’s direction.  Since the parties have not prepared the English translations by the time of the PTR, it would not be suitable or appropriate for the trial to be conducted entirely in English.

(c) I am not persuaded that by taking the aforesaid into account, I have erred in principle in the analysis outlined in the above.

(5) Ground 16

Madam Lee claims that I have failed to find that her Listing Questionnaire filed on 15 January 2021 did not undermine her application for English interpretation of oral evidence given in Punti.  For the reasons set out in [10(3)] above, I have explained the relevance of the said questionnaire in the exercise of my discretion.

(6) Ground 17

(a) Madam Lee complains that I have failed to take note that it was JC who had added to the costs and length of the trial.  In particular, Madam Lee says that JC has “conveniently avoided” the fact that the 2^nd Supplementary Witness Statement of Tse To Chung Lawrence (“the 2^nd Supp WS”) is of 43 pages.

(b) As a matter of fact, the contents of the 2^nd Supp WS occupy 11 pages only, the remaining 32 pages are all exhibits.

(c) As to JC’s application for leave to file and serve the 2^nd Supp WS, no objection has ever been raised by Madam Lee.

(d) In any event, I do not see in what way this complaint can be a ground in support of Madam Lee’s appeal against the 1^st decision.

(7) Ground 18

Madam Lee complains that as a result of the 1^st decision, the costs incurred by her in retaining leading counsel for the trial would be wasted.  With respect, before retaining a monolingual counsel to represent her in the trial, Madam Lee should appreciate that her application for English/Punti interpretation to be provided in the trial may or may not be allowed.  If any cost is wasted as a result of Madam Lee’s own choice, this cannot be a ground in support of an appeal against the 1^st decision. 

11.Bearing in mind the very high threshold that Madam Lee has to overcome in order to succeed in her appeal, for all the reasons set out in the above, I am of the view that there is no reasonable prospect of success in the appeal against the 1^st decision.  I also do not see any reason in the interests of justice why the appeal should be heard.  Leave to appeal against the 1^st decision must be refused.

2^nd decision

12.The 2^nd decision is a matter in the 2421 Action.  In the PTR, both Madam Lee and JC agreed that Madam Lee should have leave to file and serve a 2^nd supplementary witness statement in response to the matters stated in the 2^nd Supp WS.  JC submitted that the witness statement to be filed and served by Madam Lee should be solely in response to the 2^nd Supp WS.  Madam Lee disagreed and argued that the word “solely” should not be included in the order.  After hearing submissions from the parties, I agreed with JC and included the word “solely” in my order. This is the 2^nd decision targeted by the appeal proposed by Madam Lee.

13.As per the Draft 2421 NOA, Madam Lee seeks an order from the Court of Appeal to set aside the 2^nd decision, and an order that “Leave be granted to [Madam Lee] to file and serve a Supplementary Witness Statement in response to the matters stated in [the 2^nd Supp WS] within 28 days from the date of the appeal hearing”.  Accordingly, the crux of the matter is whether the word “solely” in my order should be deleted.

14.In my view, the answer to this question is plain and obvious.  Madam Lee has leave to file and serve a supplementary witness statement only because of the 2^nd Supp WS filed and served by JC.  There is no reason not to add the word “solely” in the PTR Order.  The proposed appeal has no merit at all, and the leave application must be dismissed.

15.However, the arguments advanced by Madam Lee in support of her appeal against the 2^nd decision[9] are not focusing on the word “solely”.  What Madam Lee wants is leave to allow her to file and serve evidence from a new witness, who would be someone knowledgeable in due diligence of companies.  Madam Lee says that in the 2^nd Supp WS, matters concerning due diligence of BVI companies have been raised.  She does not have personal knowledge in this aspect, and so she should be allowed to have a new witness to give evidence to cover this area.

16.Before the PTR, in the written submissions filed on her behalf, Madam Lee did not say that she intended to have a new witness at the trial.  Such suggestion was raised for the first time orally by Madam Lee’s counsel in the PTR.  At the PTR or even up until now, no draft witness statement from the new witness has been produced.  It is not known whether the new witness is a factual witness or an expert witness.  In these circumstances, the court cannot accede to Madam Lee’s request of adding a new witness.  To allow Madam Lee’s request in these circumstances would be equivalent to giving a blank cheque to Madam Lee.

17.In any event, if Madam Lee wants to have leave from the court to add a new witness, she should seek leave from the trial judge and not to lodge an appeal.  The PTR Order made by me does not prevent Madam Lee from making such an application. However, such an application must be made as soon as possible, for the trial will commence on 12 July 2021.  Further, a witness statement made by the new witness must be produced in support of the application.  To state the obvious, while Madam Lee may make whatever applications as she deems fit, whether the applications would be allowed is a matter to be determined by the court.  For avoidance of doubt, I am not saying that the court would allow Madam Lee to add a new witness in the trial, if such an application is made by Madam Lee.

Disposition

18.For the reasons above, I dismiss the leave applications made by Madam Lee in the 2421 Action and in the 2054 Action.

19.Costs should follow event.  In the 2421 Action, costs of the leave application be paid by Madam Lee to JC forthwith and the sum be summarily assessed at HK$120,000.  In the 2054 Action, costs of the leave application be paid by Madam Lee to Centaline forthwith and the sum be summarily assessed at HK$60,000.

20.I thank counsel for the assistance rendered to the court.

Ms Shannon Leung, instructed by Cheung & Choy, for the plaintiff in HCA 2054/2016

Mr Jeevan Hingorani, instructed by KB Chau & Co, for the defendant in HCA 2054/2016 and the plaintiff in HCA 2421/2016

Mr Paul Lam SC and Mr Bryan Lee, instructed by Reynolds Porter Chamberlain, for the defendant in HCA 2421/2016