Koo Ming Kown v. The Baptist Convention of Hong Kong and Others

HCA 694/2024

[2026] HKCFI 2492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 694 OF 2024

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D E C I S I O N

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Introduction

1.On 24 February 2026, I handed down a decision (“the Main Decision”)[1] in which I dismissed P’s appeal against the Master’s dismissal of the Joinder Application and the Amendment Application made by P. On 10 March 2026, P took out a summons (“the Leave Summons”) and seeks the following:

(1)  a direction that the Order made in the Main Decision (“the Order”) is an order falls under Order 59 rule 21(1)(a) of the Rules of the High Court and hence P may lodge an appeal against that order without leave;

(2)  alternatively, retrospective leave be granted to P to appeal against the Order on the grounds set out in the Notice of Appeal filed in the Court of Appeal dated 10 March 2026.

2.I have directed that the Leave Summons be determined on paper without an oral hearing. In this application, P is represented by Mr Denis Chang SC, leading Mr Leon Ho. Ds and IDs are represented by Mr Abraham Chan SC, leading Mr Richard Yip and Mr Enoch Fong. The parties have provided me their respective written submissions and I have duly considered the same. For ease of reference, the abbreviations used in the Main Decision are adopted herein.

Discussion

3.Order 59 rule 21(1)(a) provides:

“(1) Judgments and orders to which section 14AA(1) of the Ordinance (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right from them are the following —

(a)  a judgment or order determining in a summary way the substantive rights of a party to an action”

4.P submits that:

(1)  In considering whether a judgment or an order is within the ambit of Order 59 rule 21(1)(a), the decision should be viewed as a whole. The wording of Order 59 rule 21(1)(a) focuses on whether the order appealed against summarily determined the substantive rights of a party to an action. One has to look at what the order actually determines, rather than its collateral practical effect.[2]

(2)  The Amendment Application against Ds was interrelated with the Joinder Application, and in any case the Order should be viewed as a whole — the Amendment Application was dismissed only because the Joinder Application was refused.[3] This Court approached the Joinder Application as though it had been an application to strike out[4] and held that P had no claim against IDs[5]. Unless an appeal is successful, P is barred from claiming against IDs on the same matter in fresh proceedings. Therefore, the Order is a summary determination of the substantive rights of P against IDs.

(3)  In SFC v Lu Ruifeng[6], SFC applied for joining China United Telecom Ltd (“CU”) as a defendant and raising a claim against CU. CU opposed the application, inter alia, on the basis that the claim against CU was time-barred. The Court of First Instance ruled against CU on the limitation point and allowed SFC’s joinder application. The Court of Appeal ruled that the judge’s ruling is within the ambit of Order 59 rule 2(1)(a), for the ruling on the limitation point did determine the substantive rights of CU. In view of this Court of Appeal’s decision, the Order must be an order within the ambit of Order 59 rule 21(1)(a).

(4)  Order 59 rule 21(1)(a) is applicable so long as the Order determines in a summary way the substantive rights of “a party to an action”, and P must be a party to this action.

5.Ds and IDs submit that:

(1)  In Chen Hongqing v Asia Cement Corporation[7], the plaintiff sought leave to appeal against the judge’s dismissal of his application to join the intended defendants (without disputing whether leave to appeal was required). The judge refused leave to appeal. The Court of Appeal upheld the judge’s decision.[8]

(2)  The approach in Chen Hongqing reflects a premise that the relevant core or substance of the action is the core action against the original defendant(s), and that it cannot be that any or every attempt to join further defendants (or to make associated amendments to the pleaded claim), however unmeritorious, should count as a substantive determination of a kind that gives the plaintiff an automatic right to bring a refusal of joinder to the Court of Appeal.

6.My view is as follows:

(1)  In Chen Hongqing, whether the dismissal of the plaintiff’s joinder application is a judgment or order within the ambit of Order 59 rule 21(1)(a) has not been raised by the parties, and that question has not been considered by both the Court of First Instance and the Court of Appeal. Thus, it cannot be said that Chen Hongqing is an authority in support of the proposition that leave to appeal is required for an appeal against a dismissal of a joinder application.[9]

(2)  Bearing in mind that the basis of the Main Decision is that P’s claims against IDs are untenable and ought to be struck out, in view of the Court of Appeal’s decision in SFC v Lu Ruifeng, the Order should be regarded as an order within the scope of Order 59 rule 21(1)(a).

(3)  Accordingly, to lodge an appeal against the Order, leave to appeal is not required.

7.Having reached the conclusion as set out in the above, I would grant the direction sought by P in the Leave Summons as set out in §1(1) above. Further, it would not be necessary for me to deal with P’s alternative application for leave to appeal.

Disposition

8.I grant the direction that the Order is within the ambit of Order 59 rule 21(1)(a) of the Rules of the High Court, and no leave to appeal is required for an appeal against the Order.

9.Ds and IDs submit that if leave to appeal is not required, the Leave Summons is in fact unnecessary. Hence, costs of the Leave Summons should be awarded to Ds and IDs.

10.With respect, I am unable to agree with Ds and IDs on this point.

(1)  On 12 March 2026, P’s solicitors wrote to Ds and IDs’ solicitors and raised the point that P could lodge an appeal against the Order without leave. P invited Ds and IDs to agree on the point, but there was no reply from Ds and IDs.

(2)  Ds and IDs have lodged written submissions to argue that leave to appeal is required.

(3)  In the circumstances, it would be necessary for P to get a ruling from this Court on whether leave to appeal is required.

(4)  Since I have ruled that leave to appeal is not required, the fair costs order should be that costs of the Leave Summons be in the cause of the appeal, with a certificate for two counsel.

11.I make the costs order as set out in §10(4) above.

12.Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.

Mr Denis Chang SC leading Mr Leon Ho, instructed by Sit, Fung, Kwong & Shum, for the Plaintiff

Mr Abraham Chan SC leading Mr Richard Yip and Mr Enoch Fong, instructed by Or & Partners, for the 1^st to 4^th Defendants and Intended 5^th to 22^nd Defendants