Poosaala Ram Prasad v. Hongkong and Shanghai Banking Corporation Ltd

HCA 279/2021

[2025] HKCFI 1759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 279 OF 2021

________________________

________________________

____________________

DECISION

____________________

Introduction and Applicable Principles

1.By Summons dated 27 March 2025 (“the Summons”), the Plaintiff (“P”) applies for leave to appeal out of time against my Decision dated 28 February 2025 (“the Decision”).  This Decision should be read together with the Decision ([2025] HKCFI 900).  For convenience and ease of reference, I shall continue to adopt the definitions and abbreviations therein.

2.The test for granting leave to appeal against an interlocutory order of the Court of First Instance is trite.  Under s.14AA(4) of the High Court Ordinance, Cap.4, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  See Hong Kong Civil Procedure 2025, Vol.1, §§59/2A/1 and 59/2A/4.

3.O.59, r.2B(1) of the Rules of High Court, Cap. 4A (“RHC”) provides that an application for leave to appeal against an interlocutory order may only be made to the Court in the first instance within 14 days from the date of the judgment or order. 

4.As the Decision was dated 28 February 2025, an application for extension of time is required.  It is well established that in considering whether to exercise the court’s discretion to extend time to appeal, the court will normally take into account the following factors:

(1)  The length of delay;

(2)  The reasons for the delay (in terms of firstly, why the original time limit was not complied with and secondly, why the extension of time could not have been made earlier);

(3)  The chances of the appeal succeeding if an extension of time is granted; and

(4)  The degree of prejudice to the other party if the application is granted.

The modern authorities disapprove of a rigid and mechanical approach which focuses on the reasons for and length of the delay.  Instead, the court must consider all the circumstances and decide whether the overall justice of the case require the exercise of the discretion to extend time. 

See Hong Kong Civil Procedure 2025, Vol.1, §59/4/9.

5.Furthermore, an application for leave to appeal under O.59, r.2B of RHC must be by way of summons accompanied by draft grounds of appeal, affidavit evidence where appropriate explaining the delay in support of an application for extension of time, and written submissions in the form of skeleton arguments as to why leave to appeal should be granted: see ibid at §§59/2A/1 and 59/2B/1.

Discussion

6.No draft Notice of Appeal or grounds of appeal were exhibited to the affirmation filed by P in support of the Summons (“the Affirmation”).  As remarked by the Court of Appeal in AXA China Region Insurance Company Limited v Leong Fong Cheng (unrep) CACV 113/2016, 28 October 2016 at §§47, 53 and 55, sometimes litigants acting in person treat the court as their legal advisors and shift the responsibility for the preparation of their case to the court.  However, a litigant acting in person should bear responsibility for the proper preparation of his or her own case in accordance with the rules and procedures of the court.  The rules and procedures are in place for good reasons and all stakeholders including litigants acting person should adhere to the rules and procedures of the court.

7.Even overlooking that no draft grounds of appeal was provided, and consequentially, requiring this court to comb through P’s skeleton submissions (Skeleton Submissions of P dated 7 April 2025 and P’s Reply Arguments Submissions dated 9 April 2025, the latter only handed up at the hearing (collectively “P’s Skeletons”)) and as none of the authorities cited were provided (requiring the Court to look up the authorities cited only to discover the citations given were wrong), to ascertain the grounds of appeal, the assertion therein that P’s intended appeal has “substantial merit” and “raises serious questions of law and fact for the Court of Appeal’s consideration” with reasonable prospect of success and a hearing by the Court of Appeal in the interest of justice, is plainly not made out.

8.Firstly, P submitted that there was non-compliance with the Unless Order of the Master dated 20 December 2024 which required D to file and serve its RAD by 4pm on 27 December 2024.  It was submitted that in rejecting this contention that I had “overlooked critical evidence and the strict principles governing unless order”.  However, in the Decision, I held that on a plain reading of the sealed Order, the Master had ordered the filing and service of the RAD within 7 days from the date of the Order and further, there was no basis to go behind the express wording of the Order as sealed (see §§10 and 14).  To suggest that it is necessary to have regard to “critical evidence” is plainly misconceived.  As I found that the filing of the RAD was within time (Decision, §15), the strict principles governing unless orders which take effects upon non-compliance and the necessity for the defaulting party to seek relief from sanction have no application where there is no event of non-compliance.  (P cited Marcan Shipping (London) Ltd v Kefalas and Anor [2007] EWCA Civ 463 but for the record, I have not been able to locate the other case cited by P: HKSAR v Cheung Kwok Wing [2005] HKCA 392.)

9.Secondly, it was submitted that my reliance on the sealed Order’s wording failed to address the irregularities of the attempt to amend the terms of the Order and the sealing process.  The alleged irregularities in the sealing of the Order was raised by P but rejected in the Decision (see §§18-20).  It is therefore not correct that the Decision failed to address the alleged irregularities.  As Kwan JA (as she then was) pointed out in 秦錦釗及香港特別行政區 [2018] HKCA 167 at §8, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge.  Rather, the appellant should focus on the first instance judge’s reasoning, pinpoint the error and the basis for saying that the judge has erred.  P has not pinpointed any error or basis for saying that I had erred in relying on the sealed Order and rejecting the alleged irregularities as to constitute proper grounds of appeal.

10.Thirdly, it was submitted that there was unfair prejudice or burden on P by allowing the amendments to the RAD.  This was the same argument previously raised but rejected in the Decision (see §§24, 26-27).   Again, P has not identified any error in my Decision.  Insofar as P’s Reply Arguments assert that “as a cardiac patient managing this case alone, I face significant disadvantage, tilting the scales against the overriding objective in Order 1A RHC”, plainly his medical condition is not a matter caused by the amendments.  As for any suggested unlevel or unequal playing field as a litigant in person, as reminded by the Court of Appeal in AXA China Region Insurance Company Limited at §55, there is ample of resources to assist litigants acting in person to help and guide them to comply with rules and procedures of the Court.

11.Besides, as I set out in the Decision at §6, an appeal against the decision of the Master is dealt with by way of an actual hearing and I treated the matter as though it came before me for the first time.  In the Decision at §§25-29, I held that in any event, exercising the discretion afresh, I would have allowed D’s Amendment Summons.  In order to appeal against an exercise of discretion, P would have to demonstrate that he has an arguable case with reasonable chance of success that the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, not merely the appellate court would prefer a solution which the judge had not chosen. See Hong Kong Civil Procedure 2025, Vol.1, §59/2A/4 and RK v YS (unrep) HCMP 1969/2012, 1 November 2012 at §6.

12.Therefore, even though Mr Law, counsel for D, accepted that the length of delay for applying for leave to appeal against the Decision is short and the reason for the delay is due to P’s deterioration of his health between 28 February 2025 and 27 March 2025, I am of the view that the intended appeal has no reasonable prospect of success and the overall justice does not require the exercise of my discretion to extend time for leave to appeal.

13.For completeness, I should mention that the Summons also seek “unless order”.  The Affirmation and P’s Skeletons make it clear it is for “enforcement of the Unless Order dated 20 December 2024” on the basis of D’s non-compliance for which D had not applied for relief from sanction.  For the reasons already given in the Decision at §30, there is no basis for this relief.

Disposition and Orders

14.Accordingly, I will dismiss the Summons.  There is no reason why costs should not follow the event.  P should pay D’s costs of the Summons.  D has lodged and served its Statement of Costs.  I hereby direct that P shall lodge and serve any objections to the Statement of Costs (limited to 3 pages) within 14 days from the date of the handing down of this Decision.  I shall thereafter summarily assess D’s costs on paper.

The Plaintiff appeared in person

Mr Adrian Law, of Johnson Stoke & Master, for the Defendant