Kency Brothers Ltd v. Lau Man Sang, James

HCMP 324/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 324 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ NO. 2143 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.On 21 December 2012, Deputy District Judge S. Lo granted summary judgment to the plaintiff on its claim against the defendant for the repayment of HK$609,126.80 being the sum outstanding under a loan and accrued interest up to 31 May 2012 and further interest continuing thereafter at the agreed contractual rate until payment. The Deputy Judge also struck out the defendant’s counterclaim. The Deputy Judge’s Reasons for Judgment were handed down on 8 January 2013.

2.The defendant applied to the Deputy Judge for leave to appeal by summons pursuant to RDC O.58 r.2 dated 11 January 2013.  The Deputy Judge refused leave by his Decision dated 7 February 2013.

3.The defendant has now by summons dated 15 February 2013 renewed his application for leave to appeal to this Court, as he is entitled to do pursuant to RDC O.58 r.2(4A).

4.There is no dispute that under s. 63A(2) of the District Court Ordinance the threshold for the grant of leave to appeal is an appeal with a reasonable prospect of success, alternatively there must be some other reason in the interests of justice why the appeal should be heard.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

5.The renewed summons for leave to appeal identifies the proposed grounds of appeal and contends that the Deputy Judge erred in finding that the defendant had failed to raise triable issues to the plaintiff’s claims.  It is supported by a skeleton submission of the defendant dated 15 February 2013.  In response, the plaintiff has served a statement under RHC O.59 r.2A(4).  The Court of Appeal may, pursuant to O.59 r.2A(5)(a), determine the application without a hearing on the basis of written submissions only and we think it appropriate to do so in the present case.

6.The four grounds of appeal identified in the summons as grounds (a), (b), (c) and (d) are the same grounds as those identified in the summons seeking leave from the Deputy Judge.

7.We shall not address those grounds of appeal at length since the Deputy Judge did so very comprehensively in his Decision refusing leave to appeal.  We consider that, for the reasons given by the Deputy Judge, the grounds of appeal in question do not demonstrate that the proposed appeal is one which has a reasonable prospect of success.  Nor do we consider that there is any other reason in the interests of justice why the appeal should be heard.

8.Further, we consider that the application for leave to appeal is totally without merit and we therefore make an order pursuant to RHC O.59 r.2A(8) that no party may under r.2A(7) request the determination to be reconsidered at an oral hearing inter partes.

9.We make an order nisi that the defendant is to pay the plaintiff’s costs of the application for leave to appeal.  Those costs will be assessed on a gross sum basis and for that purpose, we direct the plaintiff’s solicitors to serve a statement of costs within 7 days of the costs order nisi becoming absolute.  The defendant’s solicitors may respond with any objections to that statement of costs within 7 days thereafter.

Written submissions by Mr James Tze, instructed by Lam, Lee & Lai, for the Plaintiff/Respondent

Written submissions by Mr Samson Hung, instructed by C.L. Chow & Macksion Chan, for the Defendant/Applicant