Chu Hung Ching v. Chan Kam Ming and Others
Read the full judgment text of CACV 46/2001 on BabelCite. This Court of Appeal judgment was delivered on 27 February 2001 before Mayo VP, Le Pichon JA.
Civil procedure – appeal – leave to appeal to Court of Final Appeal – Court of Final Appeal Ordinance (Cap 484) s.22(1)(b) – question of law not raised below – abuse of process – inter partes summons – plaintiff not attending hearing – injunction granted – subsequent application to discharge injunction relying on points not raised at hearing – whether such conduct is an abuse of process – application refused – appellate court has no assurance that the facts upon which the appeal is based are well founded where the question was not raised before the lower court – law on abuse of process is straightforward and uncontroversial but fact-sensitive – requirements of s.22(1)(b) Cap 484 not complied with.
Legal issues: Whether leave to appeal should be granted where the proposed question of law was not raised below
Outcome: Application refused; requirements of s.22(1)(b) of the Court of Final Appeal Ordinance not satisfied.
Cited by 4 cases
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CACV000046A/2001 CACV 46/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 46 OF 2001 (ON APPEAL FROM HCA 10040/2000) __________________________________
Coram: Hon Mayo VP and Le Pichon JA in Court Date of Hearing: 27 February 2001 Date of Judgment: 27 February 2001 ________________________ J U D G M E N T ________________________ Hon Mayo VP: 1. The question which has been put to us is: "whether it is an abuse of process of the Court for a litigant, having chosen not to attend the hearing of an inter parties summons, and having had an injunction made against him, thereafter to apply to the Court for a discharge of the said injunction by relying on a point and evidence which could have been and should have been raised during the said inter parties hearing." 2. It is significant to observe that this question was not raised before Suffiad J. That being the case we have no assurance that the facts upon which the appeal is based are indeed well founded. 3. Besides, the law on this subject is straightforward and uncontroversial and much depends upon the facts of each individual case. 4. This being so we are not satisfied that the requirements of s.22(1)(b) of the Court of Final Appeal Ordinance, Cap 484 have been complied with and this application is refused.
Representation: Mr Warren Chan, SC & Mr Luiz A da Silva Pedruco, instructed by Messrs Cheng, Chan & Co. for the plaintiff Mr A. T. Reyes & Mr Victor Dawes instructed by Messrs Fok & Johnson for the defendants |
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Further hearings and rulings under CACV 46/2001