Wong Tai Wai David v. The Hong Kong Sar Government
Read the full judgment text of CACV 19/2003 on BabelCite. This Court of Appeal judgment was delivered on 8 December 2004 before Yuen JA, Andrew Cheung J.
Civil procedure – leave to appeal to Court of Final Appeal – interlocutory decision – s.22(1)(b) Hong Kong Court of Final Appeal Ordinance (Cap 484) – great general or public importance – whether question ought to be submitted to CFA – case management discretion – discovery and inspection adjourned pending strike-out application – whether ICAC or judicial witnesses facing criminal harassment raises question of public importance – held no – leave refused – costs on indemnity basis in gross sum of HK$20,000 – Plaintiff issued writ in September 2001 claiming damages from Government – Defendant's strike-out summons filed June 2002 – Master Levy adjourned discovery application – Sakhrani J dismissed appeal from Master's order – Deputy Judge Poon struck out statement of claim – Court of Appeal allowed Plaintiff's appeal from strike-out in CACV 247/2003 but dismissed appeal from Sakhrani J's decision in CACV 19/2003 – whether appeal from discretionary case management decision warrants CFA review – no identifiable error of law or misapprehension of facts – proposed question formulated by Plaintiff about witness harassment not engaged in the proposed appeal – since strike-out was overturned, Plaintiff now able to seek discovery making appeal moot – motion filed slightly out of time beyond 28-day period under s.24(2) of Cap 484 but no point taken by Defendant – costs awarded in gross sum of HK$20,000 reflecting simplicity of matter.
Legal issues: Whether leave to appeal to the CFA should be granted under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance
Outcome: Motion for leave to appeal to the Court of Final Appeal dismissed.
Cited by 11 cases · Cites 1 case
|
CACV19 /2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL 19 of 2003 (ON APPEAL FROM HCA No.4309 of 2001) ______________________ BETWEEN:
Before: Hon. Yuen JA and Hon A. Cheung J in Court Date of hearing and judgment: 1 December 2004 Date of Reasons for Judgment: 8 December 2004
----------------------------------------- REASONS FOR JUDGMENT ---------------------------------------- Hon. Yuen JA: 1. On 1 December 2004 we heard the Plaintiff’s motion for leave to appeal to the Court of Final Appeal against the judgment of this Court handed down on 7 September 2004. 1. At the conclusion of the hearing, we dismissed the motion for reasons which we indicated would be reduced into writing and handed down in due course. We do so now. Background 2. In September 2001, the Plaintiff issued the writ in this action, claiming damages from the Government. His statement of claim was filed in May 2002. Defendant’s Summons to strike-out 3. In June 2002, the Defendant issued a summons to strike out the statement of claim on the grounds that it disclosed no reasonable cause of action, was frivolous and vexatious and was an abuse of the process. Plaintiff’s Summons for discovery etc 4. Whilst the strike-out summons was pending, the Plaintiff issued a summons in September 2002 for a number of orders, including discovery and inspection of documents and for interrogatories and other directions. 5. On 13 December 2002, Master Levy adjourned the application for discovery and inspection of documents, and made no order on the application for interrogatories and other directions. 6. The Plaintiff appealed Master Levy’s order. The appeal was heard by Sakhrani J on 15 January 2003. 7. In a judgment given the same day, Sakhrani J dismissed the appeal. The judge said in his judgment that the Defendant’s strike-out summons was fixed for hearing in July 2003 and until that summons was heard, it would be premature to proceed with applications of the type that the Plaintiff was seeking. Further, only when the pleadings were formulated could one see what were the exact issues between the parties. 8. The good sense of that decision is obvious - if the Defendant succeeded in its strike-out summons, the time and costs that would be expended for discovery and inspection of documents, etc. would be saved. 9. Sakhrani J’s decision was of course made in the exercise of the judge’s discretion in a matter of case management. 10. The Plaintiff appealed Sakhrani J’s decision in CACV 19/2003. The Strike-out decision 11. In the meantime, the Defendant’s strike-out summons was heard by Deputy Judge Poon. In his judgment of 5 August 2003, the deputy judge struck out the statement of claim but only on the basis that it disclosed no reasonable cause of action. 12. The Plaintiff appealed Poon Dep J’s decision in CACV 247/2003. Appeals before Court of Appeal 13. CACV 19/2003 (the appeal from Sakhrani J’s decision) and CACV 247/2003 (the appeal from Poon Dep J’s decision) were heard together by this court on 7 May 2004. 14. For reasons set out in the judgment dated 7 September 2004, this court allowed the appeal in CACV 247/2003 (i.e. the Plaintiff’s appeal from Poon Dep J’s strike-out decision). 15. As for CACV 19/2003 (i.e. the Plaintiff’s appeal from Sakhrani J’s decision), the appeal was dismissed for the reasons set out in paragraphs 56-57. Motion for leave to appeal to CFA 16. By a notice of motion dated 4 October 2004 but filed on 9 October 2004, the Plaintiff sought leave to appeal our decision in CACV 19/2003 (i.e. the appeal from Sakhrani J’s decision). 17. That Notice of Motion was filed out of time as s.24(2) Hong Kong Court of Final Appeal Ordinance Cap. 484 provides that the notice of motion should be filed within 28 days from the date of the judgment to be appealed from, not from the date of sealing of the judgment (unlike Order 59 rule 4(1) of the Rules of the High Court). However no point was taken by counsel for the Defendant on the delay, and since it was a relatively short delay, I did not consider it of any significance. 18. What was of relevance was that our judgment in CACV 19/2003 was an interlocutory appeal, and s.22(1)(b) Hong Kong Court of Final Appeal Ordinance provides:
19. At the hearing before us, this court sought to explain to the Plaintiff that he is now able to seek discovery, etc. since the strike-out decision has been overturned. The Plaintiff nevertheless contended that he wished to appeal Sakhrani J’s decision to the Court of Final Appeal because that decision had cost him delay in the pursuit of discovery, etc. 20. The Plaintiff submitted that there was a question of great general or public importance involved in the proposed appeal, which he formulated thus:
21. In my view, such a question is not engaged at all in the proposed appeal. The matter before Sakhrani J was simply whether steps subsequent to the close of pleadings such as discovery, etc. should be taken when the fate of the statement of claim, in the face of a strike-out application, had not been determined. 22. There was no other ground for giving leave under s.22(1)(b). Our judgment in CACV 19/2003 was given in an appeal from a decision made in the exercise of the judge’s discretion, when there was nothing to indicate that he had erred in law, or had misapprehended the facts, or that his exercise of discretion could be challenged on any other ground. 23. By reason of the above, I dismissed the notice of motion. Having heard the parties on costs, I considered that the notice of motion was entirely misconceived and warranted the award of costs on an indemnity basis. Counsel for the Defendant sought a gross sum order in the sum of $28,000 which he indicated was the amount of counsel’s brief only. Having taken into account the simplicity of the matter, I awarded costs in the gross sum of $20,000. Hon A. Cheung J: 24. I agree.
The Plaintiff (Appellant) in person, present Mr Simon K.C. Lam, instructed by Department of Justice, for the Defendant (Respondent) |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under CACV 19/2003