Law Siu Leung v. The Occupiers and Another

HCMP 1311/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1311 OF 2012

(ON AN INTENDED APPEAL FROM DCMP NO 3093 OF 2011)

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BETWEEN

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Before: Hon Yeung V-P and Kwan JA

Date of Decision: 4 September 2012

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DECISION

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Hon Yeung V-P:

1.I agree with the decision of Kwan JA.

Hon Kwan JA:

2.This is the 2^nd defendant’s application for leave to appeal the judgment of Deputy District Judge Grace Chan given on 15 May 2012 (“the Judgment”). Pursuant to the powers of this court under Order 59 rule 2A(5)(a) of the Rules of the High Court, the application is determined on the basis of the statement in support and the statement in opposition filed by the 2^nd defendant and the plaintiff without an oral hearing.

3.The 2^nd defendant had earlier sought leave to appeal from the judge. His application was dismissed by the judge who gave detailed reasons for her decision on 13 June 2012 in a 10-page judgment (“the Decision”).

4.The 2^nd defendant renewed his application for leave to this court. He also sought stay of execution of the judgment of 15 May 2012 pending appeal and stay of execution of the costs order. The draft grounds of appeal advanced by the 2^nd defendant before this court are the same as those considered by the judge in paragraphs 10 to 28 of the Decision.

5.Under section 63A(2) of the District Court Ordinance, Cap. 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

6.The Judgment was given in the plaintiff’s application under Order 113 of the Rules of the District Court for summary recovery of possession of a property which is at all times subject to a series of short term tenancies granted by the Government. The only defence raised by the 2^nd defendant was promissory estoppel and proprietary estoppel. The judge held that the estoppel defence was not a real and bona fide defence and no triable issue was raised that should be determined in a full trial, for the reasons given in paragraphs 32 to 43 of the Judgment. I agree with the judge’s conclusions in all respects.

7.I agree also with the judge that none of the proposed grounds of appeal would have reasonable prospect of success, the statement in support filed by the 2^nd defendant and the authorities cited by counsel do not persuade me otherwise. The reasons given by the judge in the Decision in rejecting the 2^nd defendant’s arguments are clear and sufficient and it is unnecessary to add to them.

8.The 2^nd defendant has not satisfied the threshold test for leave to appeal to be granted, nor is there any other reason in the interests of justice why the appeal should be heard. His application for leave to appeal is accordingly dismissed. The application for stay of execution pending appeal does not arise.

9.As this application is entirely without merit, I would make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

10.I would make an order nisi that the 2^nd defendant is to pay the plaintiff’s costs of this application, to be assessed on a gross sum basis. The plaintiff is to lodge a skeleton bill for gross sum assessment within 7 days upon the costs order nisi becoming absolute, and the 2^nd defendant may respond to this within 7 days of service of the bill.

11.I wish to mention one last matter. The statement in support filed by the 2^nd defendant is 15 pages and the statement in opposition filed by the plaintiff is 7 pages. Over elaborate submissions in these statements do not assist the court in an application of this kind and may defeat the objective of dealing with such applications with reasonable despatch. Part B of Practice Direction 4.1, which governs applications for leave to appeal in civil interlocutory matters, provides in paragraphs 15 that skeleton arguments should not normally exceed 5 pages on A4 paper in no smaller than 14 pt size. This Practice Direction will be strictly adhered to as from 3 September 2012, only skeleton submission in compliance with the requirement will be accepted for filing unless leave has been obtained from the court below a longer skeleton argument is warranted.

Mr Michael Chai, instructed by Messrs Katherine Y W Or & Co, for the plaintiff (respondent)

Mr Raymond Lau, instructed by K Y Leung & Carina Chen, for the 2nd defendant (applicant)