Skk (H.K.) Co. Ltd. and Another v. Tsui Po Hing and Another

HCMP 934/2019

[2021] HKCFI 3219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 934 OF 2019

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Before:  Hon Linda Chan J in Chambers

Date of Hearing: 22 October 2021

Date of Decision:  28 October 2021

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D E C I S I O N

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1.By judgment dated 10 June 2021 [2021] HKCFI 1676 (“Judgment”), this Court make an order for sale in respect of a property known as Workshop 13 on 2^nd Floor and Flat Roof, Harry Industrial Building, Nos 49-51 Au Pui Wan Street, Fo Tan, Sha Tin, New Territories (“Property”) registered in the names of the Defendants (“Ds”). Unless otherwise stated, I adopt the abbreviations used in the Judgment.

2.By summons dated 8 September 2021 (“Leave Summons”), Ds applied for leave to appeal out of time against the following orders made by this Court:

(1)  The order dated 10 June 2021 dismissing D2’s Summons for (i) setting aside the 1^st Charging Order; and (ii) an order of delivery of title deeds of the Property to Ds, with costs to be paid by D2 to Ps (“Dismissal Order”);

(2)  The order for sale dated 10 June 2021 in respect of the Property, with costs of the OS to be paid by Ds to Ps (save that Ps are not entitled to recover 20% of the costs of Nishida 1^st and all the costs in preparing Nishida 2^nd) (“Sale Order”);

(3)  The order dated 23 June 2021 assessing the costs of D2’s Summons at $30,000 and the costs of the OS at $280,000 (“Costs Order”);

(4)  The order dated 23 June 2021 refusing D2’s application by letter of 22 June 2021 for Chinese translation of the Judgment (“1^st Translation Order”);

(5)  The order dated 6 July 2021 refusing D1’s application made by letter dated 2 July 2021 for provision of the transcripts of the hearing on 25 May 2021 (“Transcript Order”); and

(6)  The order dated 6 July 2021 dismissing D2’s application made by letter dated 2 July 2021 for Chinese translation of the Judgment (“2^nd Translation Order”).

3.In his written submissions, Mr Gary Lam, counsel for Ps, submits that there has been a delay of 1.5 – 2.5 months on the part of Ds in applying for leave to appeal.  In his supplemental submissions, Mr Lam fairly accepts that if one takes into account the date when D1 applied for legal aid (18 June 2021), the automatic stay of 42 days by virtue of s.15 of the Legal Aid Ordinance (Cap. 91)[1] and the summer vacation, by the time Ds issued the Leave Summons, only the time period for seeking leave to appeal against the Dismissal Order expired (on 6 September 2021). 

4.It is well established that leave to appeal would only be granted if the Court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.  This means the prospects of succeeding must be more than “fanciful”, without having to be “probable”.  Even if this threshold requirement is met, the Court has a discretion to refuse leave (Hong Kong Civil Procedure 2022, §59/2A/4).    

5.Where, as here, the intended appeal is an appeal against exercise of discretion of the judge, the applicant would have to show that he has an arguable case with reasonable chance of success that the relevant decision exceeds the generous ambit within which reasonable disagreement is possible, is plainly wrong, and not merely the appellate court would prefer a solution which the judge had not chosen (RK v YS, HCMP 1969/2012, 1 November 2012 (CA)).  This is because an appeal court will not interfere with a judge’s exercise of discretion unlessthe judge has misunderstood the law or the evidence or the exercise of discretion was plainly wrong (北京橙天嘉禾影視製作有限公司 v張承勷, HCMP 2666/2016, 11 November 2016).

6.Ds have not prepared or appended any draft notice of appeal against the orders for which leave to appeal is sought.  Nevertheless, I have considered the grounds stated in D2’s affirmation filed on 8 September 2021 in support of the Leave Summons (“D2’s Aff”) as if it were a draft notice of appeal.   

Appeal against Sale Order

7.Section 14(1) of the High Court Ordinance (Cap. 4) provides that “[s]ubject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter”. The Sale Order is a final order and does not fall within any of the exceptions listed in s.14(3) and s.14AA of the High Court Ordinance. Ds do not require leave of this Court to appeal against the Sale Order. 

8.In any event, for the reasons stated in §§9 – 12 below, I do not think that the grounds of appeal raised in D2’s Aff have any reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

9.Ground 1: Ds allege that Ps obtained the 1^st Judgment Debt in the 1998 Case by fraud in that although Ps had possession of the title deeds to the Property, they made fraudulent misrepresentation to the Court by seeking an order of “delivery of title deeds if any in [Ds’] possession” (D2’s Aff §§13 & 17).  There is no merit in the allegation:

(1)  The 1^st Judgment Debt was obtained by Ps after a full trial and was affirmed by the Court of Appeal.  There is simply no evidence in support of Ds’ allegation that the 1^st Judgment Debt was obtained by fraud. 

(2)  As Mr Lam submits, the order sought by Ps in the OS was “an order of delivery of title deeds if any in [Ds’] possession”, to ensure that if Ds had any other deeds in their possession, they would be delivered to Ps. As Ds had been occupying the Property at all times (up to at least the date of the Sale Order), it was prudent for Ps to seek such an order in the OS. 

10.Ground 2: Ds allege that the Sale Order was obtained by fraud in that Ps fraudulently misrepresented to the Court that there had been amount due and owing under the Legal Charge and such amount formed part of Ps’ claim in the 1998 Case (D2’s Aff §§14 – 16).  The allegation is devoid of merit.  As stated in §25 of the Judgment, Ps acknowledged the mistake in Nishida 1^st and corrected such mistake in Nishida 2^nd. The Court was not in any way misled by the mistake.  Indeed, this Court deprived Ps of the costs occasioned by the mistake. 

11.Ground 3: Ds contend that To J did not in the CFI Judgment rule on the 7 Cheques which, it is said, could have been used to set-off any sums due and owing by Ds to Ps (D2’s Aff §16).  The contention had already been considered by this Court and was rejected for the reasons stated in §§27 – 28, 36(3), 37 – 39 of the Judgment. 

12.Ground 4: Ds argue that Ps breached the Legal Charge by retaining the title deeds and failing to lend money to Ds (D2’s Aff §17). Again, the argument had already been considered by this Court and was rejected for the reasons stated in §§36(1)-(2), 37 – 39 of the Judgment.

Appeal against Dismissal Order

13.The Dismissal Order is a case management decision.  It is well established that “case management is pre-eminently within the province of the trial judge.  And it is only in wholly exceptional circumstances that [the Court of Appeal] will interfere” (Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48 at 51, per Bokhary JA (as he then was)).  The appellant faces a very high hurdle and has to show that the judge has gone clearly wrong and made order which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational (Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887; Hong Kong Civil Procedure 2022, §59/0/55).

14.The reasons for dismissing D2’s Summons have been stated in §§40 – 49 of the Judgment.  Ds have not identified any basis to demonstrate that the case management decision was in any way wrong or irrational. 

Appeal against the Transcript Order

15.The intended appeal is an appeal against a case management decision.  Ds have not demonstrated how the refusal to provide the transcripts of the hearing on 25 May 2021 is clearly wrong.  This is unsurprising given that:

(1)  Ps and Ds made detailed submissions and arguments in their respective written submissions served on the other party in advance of the hearing. 

(2)  At the hearing of the OS on 25 May 2021, the parties made oral arguments on the merit of the OS.  No one gave evidence at the hearing.  Ds had ample opportunity to write down what had been said by Ps’ counsel, the Court or the other defendant during the hearing if they considered it necessary to do so. 

(3)  More importantly, this Court has in the Judgment set out the reasons for the Sale Order and the Dismissal Order.  It would not be necessary for Ds (or the Court of Appeal if the matter proceeds further) to refer to the transcripts of the hearing in order to apprise of the arguments advanced by the parties and the reasons for making the Sale Order and the Dismissal Order. 

16.In any event, as soon as Ds requested for provision of the transcripts by their letter dated 22 June 2021, this Court approved the provision of the audio recording of the hearing on 25 May 2021 to Ds at the usual charge of $170.  For reasons never explained, Ds did not pay the charge or take any step to obtain the audio recording.  Instead, Ds simply reiterated the request for transcripts as if their application had not been dealt with by the Court.  Such conduct is unacceptable.    

17.At the hearing of the Leave Summons, Ds assert that they require the transcripts of the hearing for the purpose of D1’s application for legal aid but fail to explain how the transcripts may assist such application.  In any event, as Mr Lam points out, D1’s application was already refused by the Director of Legal Aid on 26 August 2021.

Appeal against the 1^st and 2^nd Translation Orders

18.The intended appeal against the 1^st and 2^nd Translation Orders does not have any prospect of success for the following reasons:

(1)  It is an appeal against case management orders and Ds have failed to meet the high threshold for appealing against such orders. 

(2)  As explained in the letter dated 23 June 2021, the contents of the Judgment had already been interpreted by the Court Interpreter to Ds on the date it was handed down (10 June 2021). 

(3)  The interpretation was specifically arranged for the benefit of Ds, having regard to their assertion made at the hearing on 25 May 2021 that they do not read or understand English.

(4)  In any event, upon Ds’ further requests, the unofficial Chinese translation of the Judgment was provided to Ds on 1 September 2021.  It is pointless for Ds to appeal against the 1^st and 2^nd Translation Orders. 

(5)  It now transpires that Ds’ assertion that they do not read or understand English may not be true.  As Mr Lam points out, Ds have not adduced any evidence to prove that they do not read or understand English.  Although D2 asserts (at §6 of D2’s Aff) that he does not understand English, there is no suggestion that D1 does not read or understand English.  Indeed, in their written submissions, they are able to use English legal terms such as “offer”, “acceptance”, “intention to create legal relations” and “consideration”, and quote the relief sought in the OS (in English) and make submissions on such relief without any difficulty.   

Appeal against Costs Order

19.The Costs Order is an assessment of the costs ordered against Ds in respect of the OS and D2’s Summons.  They stand and fall with the intended appeal against the Sale Order and Dismissal Order.  In any event, Ds have not identified any basis to suggest that the costs assessed are in any way incorrect or irrational.

Disposition and costs

20.For the above reasons, the Leave Summons is dismissed. 

21.Costs should follow the event.  I make a costs order nisi that Ds shall pay the costs of and occasioned by the Leave Summons forthwith, to be assessed by way of gross sum assessment.  For this purpose, Ps are to lodge and serve a statement of costs for gross sum assessment within 3 days of this Decision and Ds are to provide their comments on such statement, if any, within 7 days thereafter. This Court will assess the costs on paper.   

Mr Gary Lam, instructed by Tsangs, for the 1^st – 2^nd plaintiffs

The 1^st and 2^nd defendants appeared in person