Lam Hoi Kit v. Lam Tin Ling Liang Kindergarten

DCCJ 1267/2024

[2025] HKDC 1171

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1267 OF 2024

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BETWEEN

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DECISION

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A. INTRODUCTION

1.This is the Plaintiff’s application dated 27 March 2025 for leave to appeal (“Leave Application”)  against my decision handed down on 26 March 2025 (“Decision”).

2.In the Decision, I dismissed the Plaintiff’s appeal against the order of Master Raymond Chu dated 16 December 2024 whereby the Plaintiff’s claim was struck out with costs on the ground of abuse of process.  My decision was rested on two alternative grounds, namely (a)  Henderson abuse[1]; and (b)  for want of jurisdiction[2].

3.On 25 April 2025, I directed that the Leave Application be dealt with by way of paper disposal and gave directions for filing of submissions.  Having considered the parties’ submissions, I dismiss the Leave Application.  These are my reasons.

B. LEGAL PRINCIPLES

4.The legal principles on the threshold for granting leave to appeal area not in dispute.  The applicant, ie the Plaintiff in the present case, needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interest of the justice why the appeal should be heard; District Court Ordinance (Cap 336), section 63A(2)(b).  A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”; SMSE v KL [2009] 4 HKLRD 125 at §17.

C. DISCUSSION

5.In the summons of the Leave Application, the Plaintiff argues that I “did not interpret the [Henderson] case and the Hong Kong common law on the responsibilities of drivers, car owners, employers and insured persons”.[3] This ground is further elaborated in the Plaintiff’s submissions (written in English).  There is however no challenge, whether in the summons or the submissions, on the “for want of jurisdiction” ground.  In other words, the Plaintiff’s appeal is solely premised on the “Henderson abuse” ground.

6.It is trite law that appeal lies against the order made by the judge, not against the reasons he gave for his decision; Hong Kong Civil Procedure 2025 §59/0/11.  Where the court’s decision is found on two alternative grounds, unless the applicant is able to demonstrate a reasonable prospect of success in overturning both grounds, there is no reasonable prospect of success in the intended appeal; Zhang Rui Kang v Tunghsu Group Co [2023] HKCFI 2451 §12 per Deputy Judge MK Liu.

7.Since there is no challenge against my decision on the “for want of jurisdiction” ground, the Plaintiff’s claim would still have been struck out even if his appeal on “Henderson abuse” ground were successful.  On this reason alone, the Leave Application should be dismissed.

8.In any event, I am of the view that there is no merit in the Plaintiff’s appeal on the “Henderson abuse” ground.

9.The crux of the Plaintiff’s argument is that Henderson principle does not apply to road traffic cases.  The argument has already been rejected by me in the Decision[4] as the Plaintiff had not cited any authority in support.  Save for repeating the same argument, the Plaintiff still fails to provide any authority in support in his submissions.  As held by District Judge Grace Chow in Chung Suet Wan v Chung Suet Han[5], it is futile to simply rehearse the rejected contention without pinpointing the errors in the judge’s reasoning. 

10.On the other hand, the Court of Appeal’s decision in Chan Chiu Tung v Cheng Ka Fai Philip[6] is the direct authority affirming the application of the Henderson principle to the road traffic cases.

11.In Chan Chiu Tung, the private vehicle negligently driven by the 1^st defendant collided with the motorcycle driven by the plaintiff.  The plaintiff claimed against the 1^st defendant for personal injuries and property damage.  The personal injuries claim was subsequently settled with the insurer of the vehicle leaving only the property damage claim in the sum of $11,421.  The property damage was struck out on the ground that, following the majority decision of the English Court of Appeal in Brunden v Humprey[7], the plaintiff’s personal injuries claim and the property damage claim were two separate and distinct causes of action and the latter fell within the exclusive jurisdiction of Small Claims Tribunal. 

12.The Court of Appeal refused to follow the majority decision in Brunden and held that the plaintiff’s two claims, which resulted from one tortious occurrence, should be regarded as one single cause of action as the majority decision “does not sit well with the well accepted rule in Henderson v Henderson that a claimant is barred by cause of action estoppel from pursuing a claim which could have been litigated at the same time as a claim previously brought”.  This shows that the Henderson principle applies squarely to road traffic cases. 

13.In his submissions, the Plaintiff refers to Outotec (USA)  Inc v MW High Tech Projects UK Ltd[8] and argues that the case “illustrates the parties’ interest, different types of liabilities and civil claims by different level of courts does not mean abuse the process legally”.  With respect, the Plaintiff’s argument is totally misconceived. 

14.In Outotec, the main contractor was sued by the employer for breach of breach due to delay (main action).  The main contractor joined the subcontractor in the main action and alleged that the delay was caused by the latter.  The subcontractor defended and counterclaimed the main contractor for outstanding contract sum.  The day after the judgment was handed down in the main action (which the main contractor lost), the main contractor commenced a second action against the subcontractor alleging that it was induced to enter into the subcontract as a result of fraudulent or negligent misrepresentation.  The subcontractor applied to strike out the second claim on the basis of Henderson abuse.  The application was dismissed and the subcontractor appealed.

15.The primary argument of the subcontractor was that the main contractor had breached the guidelines in Aldi Stores Ltd v WPS Group plc[9] which requires the party to ongoing litigation who realized that they might have connected claims which were not currently pleaded to as least raise with the court the existence of such new claims and a breach of that requirement would give rise to a “high risk” that the second action would be found to be an abuse of process.

16.The subcontractor’s appeal was dismissed.  The English Court of Appeal took the view that the crucial question is whether, in all circumstances, a party was misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before.  The Aldi requirement was simply one facet of the necessary merits-based evaluation  and the breach of that requirement did not automatically mean that the second action would be struck out.  It depended on the causative effect of failure to follow the requirement.  Whilst the Court agreed that the main contractor’s breach was serious, it found that there was no, or no significant overlap between the main action and the new misrepresentation claim and the new claim did not involve any re-litigation of issues previously addressed in the main action.  As such, there was no vexation, oppression and harassment in pursing the second action. 

17.In my view, Outotec does not assist in the Plaintiff’s appeal:-

(a)  Firstly, the decision of Outotec was clearly decided on its own facts and was not meant to lay down any legal principle that “the parties’ interest, different types of liabilities and civil claims by different level of courts does not mean abuse the process legally” as alleged by the Plaintiff.  Further, it is not a road traffic case and therefore does not support the Plaintiff’s argument that Henderson principle to the road traffic cases;

(b)  Secondly, contrary to Outotec where there was no, or no significant overlap, between the main action and the new misrepresentation claim, there is significant overlapping between the SCT Case and the present case.  In fact, it is the Plaintiff’s argument that Mr Leung’s liability, which is an essential element of a claim of vicarious liability in the present case, had already been decided in the SCT Judgment and it should not be reopened again;

(c)  Thirdly, contrary to Outotec where there was no vexation, oppression and harassment in pursing the second action, I was satisfied that it was manifestly unfair to the Defendant if the Plaintiff was allowed to proceed with the present case by (i)  attempting to bind the Defendant to the effect of the SCT Judgment without giving it any opportunity to contest; and (ii)  exposing it to risk of compensating the Plaintiff without an indemnity from Mr Leung. 

18.In the submissions, the Plaintiff refers to some new evidence which are not contained in his affirmations.  This is not permissible.  In any event, I fail to see the relevancy of the new evidence to the Plaintiff’s appeal.

19.By reason of the aforesaid, I am not satisfied that the Plaintiff’s appeal has reasonable prospect of success or there is some other reason in the interest of the justice why the appeal should be heard. 

D. CONCLUSION

20.I dismiss the Leave Application. There is no reason why the Plaintiff should not bear the Defendant’s costs of the Leave Application. 

21.Mr Yeung for the Defendant asks for indemnity costs on the ground that the Leave Application is “doomed to fail on the facts and on the law” and as such is “unreasonable to a high degree”. 

22.I agree with Mr Yeung.  Since the Plaintiff does not challenge the “for want of jurisdiction” ground, the Leave Application is bound to fail.  Further, the Plaintiff’s contention that Henderson principle does not apply to the road traffic cases is totally unarguable.  I am of the view that the Leave Application should not have been made.  I would allow the Defendant’s costs on indemnity basis. 

23.This is an appropriate case to assess the costs summarily.  The Defendant has filed its Statement of Costs together with the submissions.  I now direct that the Plaintiff shall file and serve his Statement of Objections, if any, within 14 days from the date of this decision. 

24.Lastly, it remains for me to thank Mr Yeung for his helpful assistance to the Court.

The plaintiff appearing in person

Mr Alex Yeung, instructed by Kao, Lee & Yip, for the defendant