A & M Manufacturing and Marketing Ltd v. Iu Po Shing

DCCJ2153/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2153 OF 2003

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BETWEEN

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

Date of Hearing: 23^rd November 2010

Date of Ruling: 23^rd November 2010

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R U L I N G

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1.This is an application by the Plaintiff for leave to appeal against my ruling given on 26 August 2010, when I ordered the Plaintiff’s action be struck out for want of prosecution.

2.Before I move on to consider the application for leave, I should deal with the principle upon which this court should grant leave to appeal.  At today’s hearing, Mr Chong, counsel for the Plaintiff, referred me to the case of Ma Bik Yung v. Ko ChuenHCMP 4303/1999 and referred me also to the judgment of Lord Woolf in Smith v. Cosworth Casting Processes Limited [1997] 1 WLR 1538, which was quoted in Ma Bik Yung’s case.

3.If I may go directly to the judgment of the late Mr Justice Leong. His Lordship said in his judgment that: “What is required for the purpose of this application is for the applicant to show that he has an arguable case with reasonable chances of success on appeal.”  This passage has been quoted in subsequent cases as the guiding principle as to when leave should be granted.  The question is whether there is any change after the 2008 amendment to both the High Court Ordinance and the District Court Ordinance incorporating the Civil Justice Reform.

4.I refer to a judgment of Her Honour Ng given in the case of Commissioner of Inland Revenue v. Nam Tai Trading Company LimitedDCTC 4250/2008 handed down on 22 April 2009.  Her Honour observed this: “Prior to the 2008 legislative amendments to the DCO, in considering whether to grant leave to appeal to the Court of Appeal, pursuant to section 63 of the DCO, the intended appellant needed to satisfy the court that the intended appeal has a realistic prospect of success in the sense that it at least has an arguable case in respect of the intended appeal.”  Her Honour then referred to Ma Bik Yung’s case and also cited the passage of Lord Woolf, which was quoted by Mr Chong this morning.

5.Her Honour highlighted a passage by Lord Woolf when His Lordship said:

“The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal.”

6.This is relied on by Mr Chong.  But Her Honour commented that: “Mr Justice Leong in Ma Bik Yung said it was for the applicant to show that he had ‘an arguable case with reasonable chances of success on appeal . . .”

7.So, with that analysis, Her Honour came to the view that the new section 63A of the District Court Ordinance basically codified the pre-existing threshold test of realistic or reasonable prospect of success adopted by the local courts. 

8.Surely, Ma Bik Yung’s casewas decided before the new section 63A is added to the District Court Ordinance.  And in recent days, parties usually would refer to another Court of Appeal decision when they are trying to address this court on the principle on when leave of appeal should be granted.  It is the case of SMSE v. KL [2009] 4 HKLRD 125, and they usually refer to a passage from the judgment of Madam Justice Le Pichon which reads as follows:

“Leave to appeal under Order 59 rule 2B is not lightly granted. The relevant test appears in section 14AA(4) of the High Court Ordinance. 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’.”

9.If one takes a look at section 14AA(4) of the High Court Ordinance, it reads:

“Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that-

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

10.Section 63A(2) of the District Court Ordinance reads:

“Leave to appeal should not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that-

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.”

11.If compares the wording of these two sections, it is quite clear that they are similar.  Accordingly, the able judgment of Madam Justice Le Pichon would also be guidance to this court as to how leave should be granted.  And I am more inclined to follow the later decision from the Court of Appeal in that it take into account and is direct on the new section 63A(2).  So, the question I have to ask myself today is whether the Plaintiff has shown that there is reasonable prospect of success in the appeal or there is any other reason in the interests of justice why the appeal should be heard.

12.I turn to the summons where there was a draft Notice of Appeal attached.  And I have heard the counsel for the Plaintiff and the solicitor for the Defendant.  And I am grateful to their very detailed written submissions.

13.I believe the main argument of Mr Chong is I have erred, in allowing the action be struck out for want of prosecution in that I should not have made an inference that there is fading memory of the Defendant.  I do not intend to go through my judgment again as it will speak for itself.  It is quite clear that there are various matters that are taken into account before I come to the conclusion that the Defendant does suffer prejudice, and I am not convinced there is real prospect that I have erred in coming to my conclusion.

14.On the second limb of Mr Chong’s argument, whether there is an abuse of process, he raised a number of arguments, in particular he said I erred in law in finding that the prima facie evidence of no intention to proceed exists simply on the basis of mere inordinate and inexcusable delay.  When I come to that conclusion, I also add that there was breach of some order of this court.  As I have recorded at paragraph 61 of my judgment, no explanation had been offered for not complying with the order of Master Poon for exchange of witness statement and to apply for Pre-Trial Review, which before April 2009 is a material step to prepare for trial. 

15.Clearly, these are matters which are essential steps and they are matters that I have taken into consideration that there is no intention to proceed.  And taking all these into account, I do not consider that there is a real prospect of success in this line of the complaint against my judgment.

16.Finally, Mr Chong seems to suggest that after the Civil Justice Reform, the court has a tighter control by case management and because of that, we should be more lenient when facing with an application by complainants such as the Defendant herein that there was delay on the part of the Plaintiff.  I do not believe that is the spirit of the Civil Justice Reform.  I am sure the Civil Justice Reform is providing judges and judicial officers with more controlling power to ensure that a case could move on speedily to save everybody’s costs and time of this court.

17.So, in that, I do not consider there is any reasonable prospect of success in the argument or there is any other special reason why this case should go on appeal.  I, therefore, dismiss this application.

(Discussion re costs)

15.  Costs to the Defendant summarily assessed at $20,000.

Mr Chong Kai-man, leading Mr Lester H L Lee, instructed by Messrs K M Lai & Li, for the Plaintiff.

Mr Lam Fai-tak, of Messrs Bernard Wong & Co., for the Defendant.

Plaintiff's appeal to Court of Appeal allowed by Court of Appeal. Please refer to CACV15/2011 dated 14 September 2011