Wong Yu Cho Rolly t/a Marco Polo and China Oversea Technical Development v. Newton Chan

HCMP 2595/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2595 OF 2007

(ON AN INTENDED APPEAL FROM DCCJ NO. 146 OF 2007)

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Before : Hon Cheung JA and Yeung JA in Court

Date of Hearing : 10 April 2008

Date of Decision : 15 April 2008

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.The plaintiff’s action against the defendant was struck out by H H Judge Leung under Order 18, rule 19 of the Rules of the District Court (Cap. 336).

2.Leave to appeal was refused by Judge Leung and also by Le Pichon JA sitting as a single judge of this Court.  The plaintiff renewed his application for leave before this Court.

3.In 2004 the plaintiff commenced action against the Inland Revenue Department (‘IRD’) in the District Court (DCCJ 4492/2004).  IRD obtained judgment in default against the plaintiff in respect of its counterclaim.

4.The plaintiff then applied to stay the proceedings in DCCJ 4492/2004.  The application was refused by Master Ko.  The plaintiff then appealed to H H Judge H C Wong.  The appeal was dismissed. 

5.The defendant was the counsel acting for IRD in that appeal.

6.The plaintiff then commenced the present action against the defendant personally for breach of duty by alleging that he had misled Judge Wong in his submissions.

7.Judge Leung held that the plaintiff had disclosed no reasonable cause of action against the defendant because there was no legal duty owing by the defendant to the opposite party regarding how counsel should conduct his case.  Judge Leung also held that Judge Wong was fully appraised of the plaintiff’s arguments including his submission that the defendant had misled the court.  Judge Leung further held that the present case was an abuse of the process of the Court because the plaintiff was attempting to reopen in the present action issues that been decided against him in other actions.

8.We agree with Judge Leung.  As the plaintiff has not shown that he has a reasonable prospect of success in the appeal, we will refuse him leave.  We make no order as to costs.

Plaintiff : in person, present.