Tong Chi Ying and Another v. Shum Ping Kuen Benson and Another

DCCJ 3566/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3566 OF 2004

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BETWEEN 

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Before: Deputy District Judge R. Yu in Chambers (Open to Public)

Date of Hearing: 23 November 2010

Date of Ruling: 23 November 2010

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1.In application for leave to appeal, there is no argument that the Applicant should satisfy the court that there is a reasonable prospect of success.

2.Mr Cheung, counsel for the Defendants has kindly referred me to the case of Ma Bik Yung v. Ko ChuenHCMP 4303/1999.  And he submitted that with the introduction of section 63A of the District Court Ordinance, the test should now be reasonable prospect of success, and he cited the case of Tam Wai Chun v. Choi Sui KwongHCMP 249/2009. 

3.And recently, I have followed from the judgment of Madam Justice Le Pichon in the case of SMSE v. KLCACV 111/2009, when Her Ladyship commented on section 14AA(4) of the High Court Ordinance, which is in similar wordings to section 63A(2) of the District Court Ordinance.   And Her Ladyship said in paragraph 17:

“In granting leave, the judge must have considered that the test set out in section 14AA(4) had been met. The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

So, I think the law is quite settled in this aspect and we do not need to go back to the older cases.

4.The application by the Plaintiffs for leave to appeal is basically on one short point.  What Mr Koo is saying, I should have awarded some damages to the Plaintiffs as I found there was negligence on the part of the Defendants, or they were in the breach of the Deed of Mutual Covenant.  He submitted that I should have at least awarded nominal damages or, in respect of the loss of inconvenience and discomfort, I should have awarded $20,000.

5.I do not intend to go through the whole argument again. This is indeed the matter that we have considered at length at the trial and this is, in fact, the submissions by Mr Cheung that in order for the Plaintiffs to establish damages, they have to prove nuisance, and I have at length explained why I come to the decision that the Plaintiffs had failed to prove nuisance and, therefore, no damages should be awarded.

6.And for the special damages they are claiming for replacement of the false ceiling, I have also dealt with that in my judgment that the Plaintiffs failed to prove that there is such a loss and, therefore, no award was made, and that is my conclusion. 

7.So, all these matters have been fully considered.  And having now the benefit of reading my judgment again, and with the benefit of the submissions from the parties, I do not consider that there is any reasonable prospect of success in the draft ground of appeal and, therefore, I would dismiss the application.

8.Further, I have also considered whether there is any other special reason for allowing this case to go to appeal, and I do not find any. 

9.So, that is my ruling.

(Discussion re costs)

11.Application dismissed. Costs to the Defendants with certificate of counsel, to be taxed if not agreed.

Mr Ernest C M Koo, instructed by Messrs Jackie Cheung & Co., for the 1^st and 2^nd Plaintiffs.

Mr Adonis K W Cheung, instructed by Messrs Fairbairn Catley Low & Kong, for the 1^st and 2^nd Defendants.