Sitec Electronics Ltd and Others v. Chan Kwok Keung t/a Chah.K. Transport Co.P Yau (Keung Kee) China

DCCJ1456/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1456 OF 2004

BETWEEN

Coram:   Deputy District Judge Mimmie Chan in Chambers (open to public)

Date of Hearing: 7 June 2006

Date of Decision: 7 June 2006

Date of Handing down Reasons for Decision:  21 June 2006

DECISION

1.The defendant applies for leave to appeal against my order of 20 April 2006 that the defendant should file and serve within 14 days from the date of the order under the title of the action and in a proper form further and better particulars in answer to the request annexed to the plaintiff’s summons dated 14 September 2005 with costs.

2.In making the order of 20 April 2006, I was exercising a discretion to order that particulars be given.  Paragraph 18/12/54 of the Hong Kong Civil Procedure 2006, volume 1 provides:  “The question whether and what particulars should be ordered is one of discretion.”  Even the form in which particulars are to be given is a matter of the court’s discretion. 

3.It is well-established that in an appeal against the exercise of a judge’s discretion, the Court of Appeal will not intervene unless the appellant can show that the judge had exercised his discretion under a mistake of law, or had misapprehended material facts, or had taken into account irrelevant matters, or had failed to take relevant matters into account, or where the judge’s conclusion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible (Hong Kong Civil Procedure 2006, volume 1, paragraph 59/1/49).  The ambit of the Court of Appeal’s interference is hence very much restricted.

4.The reasons for my decision on 20 April 2006 and the facts which I took into consideration are already clearly set out in my decision delivered on the same day.  I exercised my discretion, bearing in mind the facts in dispute and the principles of law applicable.  The date of the agreement for carriage of goods had not been supplied by way of particulars on 20 April 2006.  The other particulars sought of the term of the agreement relied upon by the defendant had been requested as early as 31 May 2005 and, more specifically, on 22 August 2005.  By the time of the hearing on 20 April 2006, the particulars had still not been properly served in full.  It was in such circumstances that the order was made. 

5.After hearing the submissions of the defendant’s counsel, I fail to see that the defendant has shown any ground that I have wrongly exercised my discretion or that I have applied the wrong principle of law or that I have misunderstood the facts such that the Court of Appeal would entertain an appeal and interfere with the discretion exercised.  On this basis, I do not see that the defendant has any realistic prospect of success in the appeal against the order.  I therefore refuse the application for leave to appeal with costs.

Mr Kerry, of Messrs. Crump & Co., for all Plaintiffs

Miss Yanky Lam, instructed by Messrs. Eddie Lee & Co., for the Defendant