Hee Lee Investment Co Ltd v. Joy Express Ltd

CACV164/2004 & CACV 222/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEALS NO. 164/2004 AND NO. 222/2004

(ON APPEAL FROM HCA No. 4096 OF 2002)

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BETWEEN:

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Before: Hon. Yuen and Tang JJA in Court

Date of hearing: 24 March 2005

Date of decision: 30 March 2005

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DECISION

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Hon.  Yuen JA (giving the decision of the Court):

1.This is the Defendant’s application for leave to appeal to the Court of Final Appeal ("CFA") from the decisions of this court given on 7 January 2005, reasons for those decisions having been handed down on 14 January 2005.

2.Those decisions being interlocutory, leave can be given only if the questions involved are ones which, by reason of their great general or public importance, or otherwise, ought to be submitted to the CFA for decision (s.22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap. 484).

3.We have considered the questions proposed on behalf of the Defendant.We do not consider that any of the questions proposed satisfy the test laid down in s.22(1)(b).

The 1st question

4.The Rules of Court are clear that an application for stay of an order of a judge of the Court of First Instance ("CFI") should not be made directly to the Court of Appeal unless the applicant satisfies the court that "special circumstances make it impossible or impracticable to apply to the court below" (Order 59 Rule 14(4) RHC).

5.Yeung JA in his decision dated 13 September 2004 recorded at paragraph 31 that "Joy Express does not suggest that there are any special circumstances which make it impossible or impracticable to apply to the court below for stay" and consequently he held at paragraph 32 that "procedurally there is no valid basis upon which I should exercise my discretion to grant the order of stay".

6.That decision is clearly right, as we said in paragraph 9 of our Reasons for Decision dated 14 January 2005.  It is not a matter whether the Court of Appeal has jurisdiction to grant a stay when the applicant has not applied to the court below (it clearly does have jurisdiction) - it is a matter whether it should exercise its discretion to do so when there has been non-compliance with the express Rules of Court. 

7.Consequently, we see nothing in the 1^st question that merits leave.

The 2nd question

8.As for the 2^nd question, there was nothing in the judge’s conduct which would support the Defendant’s allegation of lack of confidence in him.  Mr Choy referred to the fact that a "Restricted" stamp appeared on Chung J’s judgment.  That simply reflected the fact that the hearing was in chambers and therefore no report was to be made without the authority of the judge, in accordance with Practice Directions 25.1.

9.The mere fact that the Defendant considered that the judge below erred in law or in fact does not make it a special circumstance making it "impossible or impracticable" to apply to the court below for a stay.  Ex hypothesi, every time a litigant applies for a stay pending appeal, he is suggesting that the judge below has erred in law or in fact.  It has never been held that in applications for stay pending appeal, a litigant can apply directly to the Court of Appeal by reason simply that an appeal has been lodged against the judge’s decision.

10.Again therefore we see nothing in that question that merits leave.

The 3rd question

11.The 3^rd question is not engaged at all because there was simply no evidence before us that the removal of the obstructions might pose a danger to the public.  That had been recorded in paragraph 10 of our Reasons for Decision dated 14 January 2005. 

12.Oral allegations made by the Defendant’s representative at the bar table could not be treated as evidence.  In the eight months since Chung J’s order (July 2004), the Defendant has never filed any affirmation evidence substantiating the allegation that danger would be caused to the public by the execution of the order.  There was no reason for this court to receive viva voce evidence offered by the Defendant’s representative at this hearing. 

The 4th question

13.Despite the fact that the Defendant’s representative had made no submissions on the security for costs appeal, we had in paragraph 11 of our Reasons for Decision stated our view on the chances of success of the proposed appeal from Chung J’s judgment.  The 4^th question is therefore not engaged.

14.Again the Defendant’s representative chose not to make submissions before us on that issue at the hearing for leave to appeal to the CFA.  We see nothing in that question that merits leave.

15.The application should therefore be dismissed with an order nisi that the costs of the application be to the Plaintiff (Respondent).

Mr Kenny Lin instructed by Vivien Chan & Co for the Plaintiff (Respondent)

The Defendant (Appellant) represented by its director Mr Choy Bing Wing, by leave