Shine Grace Investment Ltd v. Citibank, N.A. and Another

HCMP 258/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 258 OF 2012

(ON AN INTENDED APPEAL FROM HCCL NO 28 of 2008)

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REASONS FOR JUDGMENT

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Hon Lam J (giving the judgment of the court):

1.The Plaintiff, by a summons of 10 February 2012, seeks leave to appeal against the decision of Reyes J made on 12 July 2011 in an interlocutory application. The Plaintiff’s application for specific discovery was refused by the judge in respect of one class of document, specified in the schedule to the summons (1 February 2011) in the court below as follows,

“Citibank NA’s undiscovered tapes of telephone calls between Hailey Mak and Dr Yau from 6 -18 October 2007”.

2.The judge regarded the documents in question [“the Documents”] to be of marginal relevance and did not accede to the application of the Plaintiff.  As this is an interlocutory matter, the Plaintiff needs to obtain leave to appeal before a substantive appeal can be brought.

3.Notwithstanding that the judge made the decision on 12 July 2011, the Plaintiff did not seek leave to appeal until 10 February 2012.  In this respect, the Plaintiff is seriously out of time.  By this summons, the Plaintiff also seeks extension of time for making the leave application. Because of the need for an extension of time, the Plaintiff did not seek leave to appeal from the judge before applying to this court.

4.Having heard the submissions of counsel, we refused to grant leave.  Putting aside the problem in terms of delay, we do not think this is a matter we would have granted leave even if the application for leave was brought within time.

5.In the Summons of 1 February 2011, the Documents were cross referenced to paras 26, 27, 29 and 30 of the Statement of Claim and paras 37, 38 and 40 of the Amended Defence.  As far as we can gather from the materials before us, this was how the matter was presented and argued before the judge.

6.Having read those paragraphs in light of the evidence, we do not see any reasonable prospect of success in arguing that the judge was wrong in his conclusion that the Documents are only of marginal relevance and that specific discovery should not be ordered as a matter of discretion.  We do not see any ground for going behind the affidavit of Mr Rogers, which in our view, adequately addressed the issues arising out of the cross-referenced paragraphs in the pleadings.

7.Other arguments, by reference to other paragraphs in the pleadings, are put forward on behalf of the Plaintiff to contend for the relevance of the Documents.  We do not think this is appropriate.  Decision on specific discovery, especially when it is a decision by a judge in charge of the specialist list (the case is a matter in the Commercial List), is very much an exercise of discretion in case management.  If a party did not see fit to raise an argument before the judge, this court should not be too ready to entertain such argument for the purpose of appeal, especially when there is no explanation as to why that argument was not raised before.  The Court of Appeal does not disturb the exercise of case management discretion as if it were exercising the discretion at first instance.  We do not think the misapprehension by counsel as to the effect of the judge’s ruling is a sufficient ground for taking an exceptional course.

8.In any event, even taking into account of those new arguments, we do not think there is a reasonable prospect of success in the intended appeal.

9.Having reached this conclusion, the application for leave must fail. 

10.As for extension of time, given our view on the merits, the application must also fail.  We would only add that we do not regard the lawyers’ misapprehension of the decision of the judge as a satisfactory explanation for the delay.  If the lawyers thought that the application in respect of the Documents has not yet been disposed of, it should have clearly been stated in the order drawn up by the solicitor for the Plaintiff that that particular item is adjourned with liberty to restore.  The order was not drafted in that way.  There is simply no reason why the lawyers should have harboured such misapprehension.

11.For these reasons, the summons of 10 February 2012 is dismissed with costs.

Mr Laurence Li, instructed by Reed Smith Richards Butler, for the Plaintiff

Mr William Wong and Mr Patrick Siu, instructed by Clifford Chance, for the Defendants