Kwan Chui Kwok Ying and Another v. Tao Wai Chun and Others

CACV 296/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 296 OF 2006

(ON APPEAL FROM COURT OF FIRST INSTANCE HCMP NO. 2996 OF 1990)

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THIRD PARTY PROCEDINGS

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HCMP 658/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 658 OF 2008

(ON AN INTENDED APPEAL FROM HCMP 2996 OF 1990)

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Before : Hon Cheung, Yeung JJA and Chung J in Court

Date of Hearing : 30 April 2008

Date of Decision : 30 April 2008

Date of Reasons for Decision and Decision on Costs : 9 May 2008 

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REASONS FOR DECISION

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Hon Cheung JA (giving reasons for decision of the Court) :

1.There were two sets of proceedings before us.  The first was in respect of CACV No. 296 of 2006 and the second was in respect of HCMP No. 658 of 2008.

CACV No. 296/2006

1)  Leave to appeal to the Court of Final Appeal

2.In this set of proceedings the 6^th defendant applied for leave to appeal to the Court of Final Appeal against our judgment of 11 December 2007 which dismissed the 6^th defendant’s appeal against the costs order of Deputy High Court Judge To dated 30 May 2006.  The dismissal was on the ground that the appeal was improperly constituted because the 6^th defendant had not obtained leave to appeal against the costs order. 

3.It is clear from the judgment of the Court of Final Appeal in Peter P. F. Chan v. Hong Kong Society of Accountants [2001] 1 HKLRD 779 that the monetary criteria under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) does not encompass costs.  Hence, even if the costs order in the present case exceeds $1 million, the 6^th defendant does not have a right of appeal to the Court of Final Appeal. 

4.Further, in respect of discretion, the requirement that leave to appeal against a costs order must be obtained first before an appellant can lodge an appeal is well established.  We cannot see there is any issue of great general or public importance involved or there is some other reason for the case to be determined by the Court of Final Appeal.  We therefore refused leave.

2) Stay of execution of orders

5.The 6^th defendant also applied for a stay of execution of the following orders until the final decision on appeal :

(1)    Decision dated 4 May 2007 by Judge To whereby he varied, on the plaintiff’s application, paragraphs six and seven of his costs order of 30 May 2006.  The varied costs order was sealed on 11 May 2007.

(2)    Decision dated 9 October 2007 by the Yeung JA who ordered the 6^th defendant to provide security for costs of his appeal and that the costs of the application be costs in the cause of the appeal.

(3)    Judgment on costs dated 11 December 2007 by this Court where we ordered the 6^th defendant to pay 50% of the costs of the appeal to the 15^th defendant. 

(4)    Decision dated 31 January 2008 by this Court where we ordered that the $400,000 security for costs paid by the 6^th defendant is to remain in court until the final determination of the taxation of the 15^th defendant’s costs of the appeal.  The money would then be paid out to the 15^th defendant in satisfaction of his taxed costs.  The balance, if any, is to be paid out to the 6^th defendant. 

6.We see no reason why there should be a stay of these orders now that the 6^th defendant had failed to obtain leave to appeal to the Court of Final Appeal.

HCMP 658 of 2008

1) Leave to appeal against costs order

6. There were also two applications under this set of proceeding.  The first was an application by the 6^th defendant for leave to appeal against the order of Judge To dated 30 May 2006. 

7.Where leave to appeal is required, a valid notice of appeal cannot be served until and unless leave to appeal has been granted (Cumbes v. Robinson [1951] 2 KB 83).  This means that an intending appellant cannot stop time for serving a notice of appeal from running where leave to appeal is required by serving a notice of appeal in advance of obtaining leave.  In this case although the 6^th defendant had served a notice of appeal against the decision of Judge To, clearly the notice of appeal was improperly issued.  The costs decision of Judge To was sealed on 7 July 2006.  The varied costs order was sealed on 11 May 2007.  All this means the time for appeal against the decision of Judge To had long expired.    

8.The 6^th defendant had on 5 February 2008 applied to Judge To for leave to appeal against his costs order out of time.  The application was refused by Judge To on 26 March 2008. 

9.Judge To had in his judgment dated 30 May 2006 provided full reasons why he ordered indemnity costs against the 6^th defendant.  How a judge should award costs is a matter of discretion by him.  Judge To made the costs order on the basis that, among other things, the 6^th defendant was making a false case against the 15^th defendant on documents which he knew were false. 

10.We agree with the view of Judge To and see no reason why the matter should be reconsidered by this Court.  Accordingly, we dismissed the 6^th defendant’s application for leave to appeal out of time against the costs order of Judge To. 

11.The second was an application for a stay of execution of the costs order made by Judge To in respect of his decisions dated 30 May 2006 and 4 May 2007.  Again there is no valid reason why these orders should be stayed.

Costs

12.As the 6^th defendant failed in all his applications he should bear the 15^th defendant’s costs.  The 15^th defendant although appearing in person at the hearing, had previously instructed lawyers to advise him on the 6^th defendant’s applications.  The costs in respect of applications under CACV 296 of 2006 is part of the costs of the appeal and the taxed costs will be paid out of the $400,000 in Court.

The 6^th Defendant, in person, present

The 15^th Defendant (in CACV 296/2006), in person, present