曹雯娟小姐 v. 馬惠屏小姐 and Another
Read the full judgment text of CAMP 217/2024 on BabelCite. This Court of Appeal judgment was delivered on 26 September 2025.
1. The plaintiff commenced her action against the defendant in the District Court in 2022 under DCCJ 127/2022 (“ the Action ”). Thereafter, relevantly:
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CAMP 217/2024, [2025] HKCA 868 On Appeal from [2024] HKDC 1124 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 217 OF 2024 (ON AN INTENDED APPEAL FROM DCCJ NO 127 of 2022) ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ Hon Au JA (giving the Decision of the Court): A. Introduction 1.The plaintiff commenced her action against the defendant in the District Court in 2022 under DCCJ 127/2022 (“the Action”). Thereafter, relevantly:
2.This is the plaintiff’s application by way of summons dated 4 November 2024 (“the Summons”), seeking leave to appeal against the judgment and/or order made by the Judge on “10 & 21 of October of 2024”. 3.As directed by the Registrar of Civil Appeals (“RCA”) on 22 November 2024, as the Judge had not made any order against the plaintiff on 10 October 2024, the Summons is to be treated as an application for leave to appeal against only the 21 Oct Order. The RCA’s said direction is clearly correct. 4.Further, given that the 21 Oct Order is a refusal by the Judge to grant leave to appeal against the Dismissal Order, following the practice of this court as stated in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we would treat this application as a renewed application for leave to appeal against the Dismissal Order. 5.On 17 January 2025, the plaintiff lodged a letter referring to the RCA’s above-mentioned direction and stated that she needed to amend the Summons. She attached a new “revised summons” to the letter, which summons included seeking leave to appeal against judgment and/or orders made by the Judge on “4 November of 2024” and “10 to 12 Dec 2024”. As no leave was granted to the plaintiff to file this “revised summons”, we will not consider it in this decision. B. Background 6.The background of this case has been encapsulated in the three written judgments rendered by the Judge for the Dismissal Order, the 21 Oct Order and the 10 Dec Order (respectively, the Dismissal Decision, the Leave Decision and the Abuse Decision as defined below). We do not intend to repeat all of the background facts and would only set out those facts which are material to the understanding and disposal of the present application. 7.In short, by way of the Action, the plaintiff in substance claimed against the defendants for having allegedly committed a series of fraud, deception, misrepresentation and other foul plays in the process of her purchase and taking over of the defendants’ fish stall business in late June 2020, which led to the closing down of the business in April 2021.[1] 8.On 9 November 2023, by an Order made by Master Soong, the Action was provisionally struck out pursuant to Order 25, rule 4 of the RDC by reason of the plaintiff’s absence at the CMC.[2] 9.On 5 December 2023[3], the plaintiff by summons applied to restore the Action pursuant to Order 25, rule 4(3) of the RDC (together with a series of other applications). In the process, the plaintiff had filed voluminous amount of documents but none of them provided any reason for her absence at the CMC to support her application to restore the Action.[4] On 27 March 2024, Master Eva Leung refused to restore the Action (ie, the Refusal Order)[5]. 10.The plaintiff then appealed against the Refusal Order. By her decision dated 18 July 2024 (“the Dismissal Decision”)[6], after considering the documents submitted by the plaintiff and finding that the plaintiff had not proffered any good reason to explain her absence at the CMC[7], the Judge dismissed the plaintiff’s appeal and made the Dismissal Order. 11.The plaintiff then sought leave to appeal against the Dismissal Order. After considering the voluminous statements and documents submitted by the plaintiff, the Judge found that the plaintiff’s said documents did not support her application for leave to appeal, but were new evidence and allegations made against the defendants purportedly in support of the plaintiff’s claim.[8] By her further decision dated 21 October 2024[9] (“the Leave Decision”), the Judge dismissed the plaintiff’s leave application and made the 21 Oct Order. 12.On the other hand, despite that the Action had been struck out, on 10 October 2024, the plaintiff filed a summons and further documents without leave of the court, to make various interlocutory applications purportedly under the Action. By way of her decision dated 10 December 2024[10] (“the Abuse Decision”), the Judge dismissed the said summons and made the 10 Dec Order. In this decision, the Judge effectively stated that it was an abuse of process by the plaintiff in taking out the summons given that her claim had already been struck out. The Judge further stated that if the plaintiff continued to make any further such applications, she would consider granting an injunction against the plaintiff restraining her from continuing to abuse the process of the court. C. This renewed leave to appeal application 13.In the Summons, and her affidavit filed in support of the Summons, the plaintiff has in substance raised the following intended grounds of appeal:
14.On 4 November 2024, 19 November 2024 and 17 January 2025, purportedly in support of this application, the plaintiff sought to file affidavits, exhibits and the application bundles[11] which were disjointed and clearly over the page limit as stipulation in paragraph 8 of Practice Direction 4.1 without permission. They are also not in compliance with the directions made by the RCA concerning the application bundles and the filing of documents.[12] 15.On 14 February 2025 and 12 March 2025, the RCA again directed the plaintiff to organise, file and serve her revised application bundles and written submissions, and extended time for her to do so by 14 April 2025. The plaintiff did not comply with the directions and on 14 April 2025, she filed yet another affidavit without leave together with her written statements (of 29 pages) and accompanying documents which were also incompliant with the RCA’s directions[13]. 16.On 19 May 2025, the plaintiff filed another affidavit without leave attaching a written statement dated 24 April 2025 (of 5 pages) and other supporting documents (of 38 pages) which sought to suspend the application for a period of 3 to 6 months for her to prepare the evidence. 17.We reiterate the importance of complying with the requirements in Practice Direction 4.1 and the directions issued by the RCA. Insofar as any of the documents sought to be filed or lodged by the plaintiff which are not in compliance with the Practice Direction and the RCA’s relevant directions, we would not have any regard to them. See Practice Direction 4.1, paragraph 15. 18.Having considered the relevant papers before the court, we believe that it is appropriate to deal with the present application on the basis of written submissions only pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap 4A) (“the RHC”). D. Legal principles 19.Pursuant to section 63A(2) of the District Court Ordinance (Cap 336), leave to appeal may only be granted if the Court of Appeal is satisfied that the intended appeal has a reasonable prospect of success or that there are some other reasons that the intended appeal should be heard. Reasonable prospect involves the notion that the prospect must be more than “fanciful” without having to be “probable”. E. Discussion 20.Under Order 25, rule 4 of the RDC, the court must provisionally strike out the claim if the plaintiff fails to attend a case management conference. The court has a discretion to restore the action under Order 25, rule 4(4) upon the party’s application, but pursuant to Order 25, rule 4(5), the court shall not so restore the claim “unless good reasons have been shown” to its satisfaction. 21.The plaintiff had applied to restore the provisionally struck out claim before Master Eva Leung, which was unsuccessful. In respect of her appeal against the Refusal Order, the Judge was not satisfied that there were good reasons to restore the claim as, importantly, the plaintiff had not given any reasonable or justifiable explanation for her absence at the CMC. The Judge explained her reasons in the Dismissal Decision at [43] - [56] as follows:
See also Leave Decision, [13] - [15]. 22.The Judge was plainly right in her analysis and conclusion both as matter of law and as applied to the evidence in this case. 23.We note that for this application, the plaintiff still has not provided any or any justifiable reason for her absence at the CMC in the Summons and the related affidavits. 24.In the premises, the intended appeal has no merits at all, and no leave to appeal should be granted. F. Dispositions and Costs 25.Accordingly, we dismiss the Summons. 26.As to costs, since the defendants have not responded to the Summons nor taken any steps in this application, a just and fair costs order should be no order as to costs, and we so order. This costs order is made on a nisi basis and shall become absolute 14 days from today unless any of the parties applies by summons to vary it. 27.Lastly, as the plaintiff’s application is totally without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the RHC. 28.Although all the Judge’s decisions are rendered in Chinese, this Decision is written English as the Summons, the plaintiff’s affidavits filed in support of the Summons are all in English.
The plaintiff, acting in person The defendants, acting in person and made no submission [1] The Dismissal Decision (as defined in [10] below), [8] - [12]. [2] The Dismissal Decision, [20]. [3] The Dismissal Decision, [22]. [4] The Dismissal Decision, [27]. [5] The Dismissal Decision, [30]. [7] The Dismissal Decision, [27], [47], [49], [50]. [8] The Leave Decision, [6], [7]. [11] Including two box files of over 800 pages. [12] The RCA’s directions dated 22 November 2024. [13] According to the RCA’s directions dated 2 May 2025, the court will not consider the affidavit and any other documents submitted without leave. |
Cases cited in this judgment