Li Xiao Yun and Another v. China Gas Holdings Ltd

HCMP 466/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 466 OF 2013

(ON APPEAL FROM HCCL NO. 18 OF 2011)

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BETWEEN

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DECISION

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Hon Lam JA (giving the Decision of the Court):

1.This is an application for leave to appeal against the decision of Mimmie Chan J [“the Judge”] on 28 February 2013 refusing leave to the Plaintiffs to adduce further expert evidence. The reasons for that decision were set out in the judgment of 6 March 2013. Her Ladyship refused to grant leave to appeal on 8 March 2013 and her reasons were set out in her written decision of 8 March 2013.

2.The intended appeal is an appeal against the case management decision of the Her Ladyship.  The Judge is also the trial judge of the case and the trial shall commence on 12 March 2013.

3.The test for granting leave to appeal in this type of situation was set out by the Chief Judge in厦門新景地集團有限公司v Eton Properties HCMP 13 of 2012, 14 Feb 2012, para 9,

“No leave to appeal should be granted unless the threshold test of reasonable prospect of success is satisfied, or (which is not relevant to the present case) there is some other reason in the interests of justice why the appeal should be heard : section 14AA(4), the High Court Ordinance (Cap 4). But the court still retains a discretion whether to grant leave even if the threshold test is satisfied. This is particularly so in relation to an intended appeal against a case management decision. In relation to such an intended appeal, this court rarely intervenes save in exceptional circumstances. As Kwan JA reiterated in the recent case of Mimi Kar Kee Wong Hung v Severn Villa Limited, HCMP 2192/2011, 12 January 2012, para 31, it need hardly be emphasized that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible. In relation to case management decisions, the intended appellant must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It is of great importance that this court does not descend to micro‑managing cases pending before the court below.”

4.The Plaintiffs relied on their written submissions in CACV 38 of 2013, in particular paras 14 to 19 to in support of their application.  In response, the Defendant relied on the written submissions in that appeal to oppose the application.

5.Having considered the parties’ submissions, we do not think there is any arguable ground for interfering with the Judge’s exercise of discretion.  The matters set out in the submissions of Mr Chan SC (on behalf of the Plaintiffs) paled into insignificance given what the Judge had set out in the Decision of 8 March 2013 in terms of the history relating to the filing of expert evidence and what she said with regard to the relevance, or rather irrelevance, of the proposed new evidence.

6.We therefore refuse to grant leave to appeal.

7.We are of the view that the application is totally without merit and we make an order pursuant to Order 59 rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

8.We also order the Plaintiffs to bear the Defendant’s costs of this application, such costs is to be taxed on indemnity basis and payable forthwith in view of the unmeritorious nature of the application, the disruptive effect it has on the preparation for the trial and the persistence of a hopeless application even after the well-reasoned decision of the Judge in refusing leave on 8 March.

Mr Edward Chan, SC and Mr Michael K W Liu instructed by P C Woo & Co, for the 1^st & 2^nd Plaintiffs (Appellants).

Mr Simon Westbrook, SC and Mr John Hui instructed by Baker & McKenzie, for the Defendant (Respondent).