Moulin Global Eyecare Holdings Ltd (in Liquidation) v. Olivia Lee Sin Mei

HCMP 2192/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2192 OF 2012

(ON AN INTENDED APPEAL FROM HCA NO. 167 OF 2008)

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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.By notice of motion dated 24 May 2013, the plaintiff applies for leave to appeal to the Court of Final Appeal against the judgment of this court[1] dated 26 April 2013 (the reasons for which were handed down on 8 May 2013).

2.The plaintiff’s application is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) on the ground that the appeal raises issues of great general or public importance or issues which otherwise ought to be the subject of determination by the Court of Final Appeal.

3.The appeal to this court was an interlocutory appeal.  On the plaintiff’s application for leave to appeal, we granted leave but, treating the application for leave as the hearing of the appeal, we dismissed the appeal.  It concerned the question of whether under RHC O.24 rr.10 and 11, the defendant’s indemnity insurance policy should be produced for the inspection of the plaintiff company, which is in liquidation and whose liquidators are suing the defendant for breach of duty as a director.

4.The question of production is not relevant to any issue arising in the action itself but instead is only relevant to the question of whether the defendant’s insurers should be admitted to a group of persons entitled to see the details of settlements entered into by the liquidators in respect of other claims made by them on behalf of the company.

5.The main argument on the appeal before us concerned the question of whether the Judge applied the wrong test in exercising his discretion not to order production of the relevant insurance policy.  We held that he had not done so and further that there was no basis to interfere with his exercise of discretion.

6.The plaintiff now seeks leave to appeal against our judgment to the Court of Final Appeal.  It is submitted by Mr Karas, on behalf of the plaintiff, that the appeal raises a question of great general or public importance, as identified in the plaintiff’s notice of motion, namely:

“Whether procedural fairness requires production of a non-privileged document by a party who relies upon the contents of that document in an affidavit filed in support of a contested application?”

7.We do not consider that the question as framed is raised on this appeal.  As framed, the question suggests that there are no exceptions to the requirement to give production other than privilege but that was not the plaintiff’s case below since, as we noted in our judgment (at §39), the plaintiff at least recognised that irrelevance as well as privilege would justify refusal of an order for production.  To those exceptions can now be added the further exceptions now identified in §8 of the plaintiff’s skeleton argument.

8.Even if the question were re-formulated to raise the question of whether the test in RHC O.24 r.13 (“necessary … for disposing fairly of the cause or matter”) requires a court “to make an assessment of the degree of relevance or importance of the document to that matter” (see our judgment at §56), which was the crux of the issue before us (see our judgment at §37), we do not think the appeal is reasonably arguable for the reasons stated in our judgment (see §§38 to 57).

9.In this context, we would add that we consider that there is a distinction between a party demonstrating a reasonably arguable interlocutory appeal for the purposes of obtaining leave to appeal to the Court of Appeal pursuant to s. 14AA of the High Court Ordinance (Cap. 4), which the plaintiff did in this case, and demonstrating a reasonably arguable appeal for the purposes of the grant of leave to appeal to the Court of Final Appeal pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, which we do not think the plaintiff can show here.  Those statutory provisions and their respective purposes are quite different and there is no reason to equate the reasonable arguability threshold in the former with that in the latter.  In particular, reasonable arguability for the purpose of granting leave to appeal to the Court of Final Appeal must necessarily take into account the fact that there has been resolution of the matter in contention in the Court of Appeal.

10.As a general rule, interlocutory appeals to the Court of Final Appeal on procedural issues will only be allowed in exceptional circumstances: see CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629 at §1.  Similarly, the grant of leave under the “or otherwise” ground is also an exceptional course: see Chao Keh Lung v Don Xia (2004) 7 HKCFAR 206 at §9.

11.For the reasons we have given, we do not consider the present case to be one in which, exceptionally, leave to appeal to the Court of Final Appeal should be granted by this court.  In the circumstances, we dismiss the plaintiff’s notice of motion with costs to the defendant.

Mr Jason Karas (Solicitor Advocate), instructed by Lipman Karas, for the Plaintiff (Applicant)

Ms Janet Ho, instructed by Carpio, Mak & To, for the Defendant (Respondent)