Cheung Kin Chung v. 王景偉 and Others

HCA 1569/2018

[2021] HKCFI 3842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1569 OF 2018

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Before:  Deputy High Court Judge Leung in Chambers

Date of Hearing:  29 November 2021

Date of Decision:  29 November 2021

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DECISION

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1.This is the plaintiff’s application for leave to appeal against this court’s decision dated 23 July 2021. This stems from the plaintiff’s own appeal against the master’s decision on 14 May 2021 whereby the plaintiff’s claim against the 3^rd defendant was struck out and such action dismissed, with costs. The master proceeded with the hearing and came to the above decision when the plaintiff was absent.

2.By notice of appeal filed on 7 June 2021, the plaintiff appealed against the master’s decision, which was heard on 23 July 2021. Once again the plaintiff was absent from the hearing.  This court proceeded in the plaintiff’s absence.  It should be noted that this court, though entitled to do so, did not dismiss the appeal solely on the ground of his absence.  This court proceeded to consider the merits of the plaintiff’s appeal in any event. The reasons for this court’s decision to dismiss the plaintiff’s appeal was delivered in court and subsequently reduced into writing.

3.The present application was filed on 30 September 2021.  The 3^rd defendant points out that pursuant to O59, r21(2)(b) of the Rules of the High Court, Cap 4A, leave to appeal in case of this nature is unnecessary,but the intended appeal is out of time pursuant to r4.  As such, whether or not leave to appeal would have been necessary, extension of time would be necessary in any event before the plaintiff’s appeal may be heard.  This court has discretion to extend the time for application for leave to appeal pursuant to r2B(6) and for lodging an appeal as of right pursuant to r15.  In either case, whether or not time extension will be granted depends on the explanation for and the extent of the delay, the prejudice to the other side as well as the merits of the intended appeal.

4.By his affirmation filed on 30 September 2021 for the purpose of the present application, the plaintiff did not explain at all why he allowed the time for appealing to elapse.

5.As to the merits, the plaintiff deposed that this court was biased against him in that this court did not analyse the fact that he has had “the relevant audio clip incriminating the 3^rd defendant’s partner Chan Kin Wo by misrepresenting that there being no vicarious liability for Pioneer Management Ltd” as stated in his affirmation filed on 28 June 2018 for his “re-application for leave to commence fresh proceedings”.

6.As explained at the end of the hearing on 23 July 2021, whilst the appeal before this court was liable to be dismissed for the sole reason that the plaintiff did not attend the hearing to pursue his appeal, this court nevertheless proceeded to consider the merits of his appeal on the basis of the affirmation evidence before this court.

7.The affirmation filed on 28 June 2018 that the plaintiff refers to must predate the commencement of this action, which was commenced by writ of summons issued on 9 July 2018.  The matter that came before the master, in respect of which the appeal was last heard before this court, was the 3^rd defendant’s summons filed on 4 May 2021 to strike out the plaintiff’s claim against it. In his affirmation in opposition, the plaintiff indeed referred to his affirmation filed on 28 June 2018, which was however not actually exhibited or incorporated by his affirmation.

8.More importantly, by referring to such affirmation filed on 28 June 2018, what the plaintiff was then trying to do was to explain that he did not know how to withdraw his action against the 3^rd defendant. As to that, this court provided its understanding and analysis, which was recorded in the written decision dated 23 July 2021.  This court will not repeat that here.  Suffice to say that the 3^rd defendant was entitled in the circumstances to an order to strike out the claim against it and to dismiss such action.

9.It is one thing to argue that the court erred in its consideration of the evidence and its decision.  It is an entirely different thing to criticise the court for being biased.  Where the plaintiff did not attend the last hearing before this court, and there is no suggestion that he has had any previous experience in attending this court for founding his view about bias, his criticism was based entirely on the outcome of the last hearing that was not in his favour.  Making such allegation against the court in the circumstances is regrettable and must be rejected.

10.All matters considered, the intended appeal is devoid of merits.  Insofar as the application for leave (out of time) is concerned, it must be dismissed with costs.

(The 3^rd defendant submits the statement of costs)

11.On the one hand, this court can understand the sentiment of the 3^rd defendant for having been repeatedly brought to court by the plaintiff in the manner like this.  On the other hand, there was indeed not much in terms of substance and preparation.  All considered, a sum of HK$7,500 should be reasonable as costs of this application summarily assessed to payable by the plaintiff to the 3^rd defendant in 14 days.

The plaintiff was not represented and did not appear

Mr Stanley Lam, of Tsang Chan & Woo, the 3^rd defendant