Liu Chong Hing Bank Ltd v. Lee Chau Kun and Another

DCMP 2362/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2362 OF 2004

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BETWEEN:

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Coram :  Deputy District Judge Thomas Au in Chambers

Date of hearing: 10 July 2006

Date of handing down judgment: 1 August 2006

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JUDGMENT

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1.This is the 1^st and 2^nd Defendants’ application by their Summons (“D’s Summons”) dated 8 July 2006 for leave to appeal to the Court of Appeal against my order (“the Order”) dated 18 May 2006, whereby I ordered that the Defendants’ application to set aside the Amended Order (“the Amended Order”) of Master R Yu dated 20 September 2005 be dismissed.  The learned Master granted judgment under the Amended Order effectively in default against the Defendants. 

2.My reasons for making the Order have been set out in my judgment (“the Earlier Judgment”)handed down on 18 May 2006.

3.For the purpose of this decision, I would adopt the abbreviation and nomenclatures used in the Earlier Judgment.

4.At the hearing of this application, the 2^nd Defendant (“Ms. Yau”) appeared in person acting for and on behalf of herself and the 1^st Defendant, while Mr. Yiu (“Mr. Yiu”) of Messrs. K C Ho & Fong appeared for and on behalf of the Bank. 

5.The Bank opposed the Defendants’ present application.

The application is out of time

6.It is common ground that the Defendant’s application for leave to appeal to the Court of Appeal is made out of time. 

7.Although not supported by any affirmation, Ms. Yau submitted to this Court that the reason for the delay was that she had not received a copy of the Earlier Judgment or the Order until very recently.

8.Mr. Yiu however submitted (also without the support of any affirmation, albeit understandably in the circumstances) that Ms. Yau’s explanation was without basis as the Defendants had long received a copy of the Earlier Judgment and the Order.  In the premises, the Defendants had failed to provide a reasonable explanation for the delay.

9.Given Ms. Yau’s explanation, and in light of the lack of evidence before me one way or the other, I am prepared to give leave to the Defendants to make the present application out of time.

10.The next question I have to consider is whether I should grant leave to the Defendants to appeal against the Order to the Court of Appeal.

Applicable principle

11.In considering whether to allow leave to appeal to the Court of Appeal, the Defendants need to satisfy the Court that the intended appeal has a realistic prospect of success, in the sense that the Defendants have at least an arguable case in the intended appeal:  Ma Bik Yung v. Ko Chuen (unrep., HCMP4303 of 1999, 8 September 1999) per Leong CJHC at paragraph 5, in adopting and approving Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

A realistic prospect of success in the present intended appeal?

12.The Defendants have not provided to the Court any draft grounds of appeal to show the basis of the Defendants’ intended appeal. 

13.Upon the Court’s inquiry, Ms. Yau premised the intended appeal on the ground that the defence of the Alleged Letter was meritorious. She further effectively repeated her submissions at the previous hearing in relation to that defence.   She also added that the Alleged Letter would show that the Bank’s practice was allegedly chaotic and unjust.  As I understand it, it is effectively her submissions that, given that there was a triable issue (as I concluded in the Earlier Judgment) as to the existence of the Alleged Letter, the Defendants had a meritorious defence to the Bank’s claim, and the Amended Order should therefore be set-aside.

14.At paragraphs 60 to 62 of the Earlier Judgment, I already set out the reasons why I rejected Ms. Yau’s submissions on the Alleged Letter and why I concluded that this letter (whether existed or not) had no relevance to the Bank’s claim one way or the other.  However, for the present application, other than repeating her previous submissions, Ms. Yau has not demonstrated to or addressed the Court the basis upon which she could rely to show why this conclusion in the Earlier Judgment might be wrong. 

15.In the premises, in my view, the Defendants have failed to discharge the burden to show that there is at least an arguable case in the intended appeal. 

Conclusion

16.For the above reasons, I dismiss the Defendants’ application under Ds’ Summons for leave to appeal to the Court of Appeal of the Order.

17.Further, there be an order nisi that costs of this application under Ds’ Summons be to the Plaintiff, to be taxed if not agreed.

Mr. Yiu Wing Ching of Messrs K.C. Ho & Fong for the Applicant.

The 1^st Respondent, in person, absent.

The 2^nd Respondent, in person, present.