Koo Dick Young Gudy and Others v. Chan Kin Hang Danvil and Others

HCA 1879/2017

[2024] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1879 OF 2017

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DECISION

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1.On 17 January 2024, I dismissed the 2^nd Defendant (“Wong”)’s application by summons dated 13 April 2023 to adduce new evidence and further dismissed her appeal against the decision of Master Jeffrey Chau given on 21 October 2022. By that decision, the Master refused to set aside the Default Judgment entered against her on 3 December 2021 but varied the judgment sum to HK$2,594,923.

2.On 1 February 2024, the Reasons for Decision (“the Reasons”) was handed down.

3.In this Decision, I will continue to adopt the abbreviations used in the Reasons.

4.The present summons was filed by Wong on 28 March 2024 (“the Summons”), when was no longer legally represented but was acting in person. By the Summons she sought leave to appeal out of time against my dismissal of her New Evidence Application. No draft grounds of appeal were stated or attached to the Summons.

5.At the hearing of the Summons on 2 May 2024, Wong appeared by counsel again but without having lodged any written submissions for the hearing. On that occasion, I gave directions for the lodging of hearing bundles and submissions by Wong, the lodging of written submissions by the Plaintiffs, and paper disposal of the Summons. On that occasion, I also expressly asked Wong, through her counsel, to attach draft grounds of appeal to her submissions.

6.Wong lodged her submissions on 29 May 2024 but did not lodge any hearing bundles. Nor were the grounds of appeal attached to her submissions. The Plaintiffs lodged their submissions on 18 June 2024.

7.This is my decision.

8.The Plaintiff’s claim and the relevant procedural history have been summarized and set out in §5 to §13 of the Reasons. Reference should be made to them, which I will not repeat here.

9.In §14 to §29 of the Reasons, I have set out the applicable principles (particularly the conditions to be met as laid down in Ladd v Marshall), analysed the new evidence sought to be adduced by Wong and gave the reasons for my refusal.

10.The principles applicable to this application are well-established :

(a)  For granting leave to appeal out of time, the Court has to consider all relevant factors, particularly (a) the length of delay, (b) the reasons for the delay, (c) the merits of the proposed appeal, and (d) the degree of prejudice to the other party (Hong Kong Civil Procedure 2024 §58/1/9).

(b)  For leave to appeal against an interlocutory order, leave shall not be granted unless the appeal has a reasonable prospect of success or there is some other reason in the interest of justice for the appeal to be heard (section 14AA of the High Court Ordinance).

11.Regarding the delay, in Wong’s affirmation filed on 28 March 2024 consisting of 5 paragraphs, Wong barely said that “I am a person of ill health and I have to receive medical treatment regularly. I am currently suffering from serious financial difficulties and I do not have sufficient financial means to get legal services and I am acting in person. Thus I cannot deal with this matters [sic] promptly and within the time limit”. As an explanation, no details or supporting facts or documents have been given to substantiate. Such clearly could not amount to a good explanation for the delay.

12.In her written submissions, Wong reiterated that the 3 conditions laid down in Ladd v Marshall have been satisfied and rehashed some of the arguments and contentions raised by her counsel at the hearing on 17 January 2024. Such arguments have been considered and analysed as set out in the Reasons and have been rejected by this Court.

13.Additionally, she put forth a new factual matter concerning Suki, hitherto unmentioned anywhere, and was not disposed to in this round of her affirmations, that “Suki be [sic] pregnant since late 2019 year and her child is illegitimate. Therefore she bury [sic] herself for 2 years” (§7 of her written submissions”). Such matter, if true, ought to have been properly deposed to and adduced for the New Evidence Application, which Wong had not. Wong could not now seek to casually mention such factual allegation in her written submissions and expect the Court to take it into consideration. I would not.

14.In the premises, there is a lack of good reason for the delay and more pertinently, I do not consider Wong’s proposed appeal has any reasonable prospect of success.

15.Accordingly, I dismiss the Summons with costs to the 1^st and 2^nd Plaintiffs.

The 1^st and 2^nd Plaintiffs, acting in person, appeared in person

The 3^rd and 4^th Plaintiffs, acting in person, being absent

Miss Scottie A. YAN, instructed by Deannie Yew & Associates, for the 2^nd Defendant (2 May 2024)

The 2^nd Defendant, acting in person (written submissions)