Read the full judgment text of CACV 356/2005 on BabelCite. This Court of Appeal judgment was delivered on 26 May 2014 before Hon Yuen, Kwan & Chu JJA.
Civil Appeal – Leave to Appeal – Court of Final Appeal – Hong Kong Court of Final Appeal Ordinance, Cap. 484 – Discretionary Leave – Want of Prosecution – Inordinate Delay – Public Importance – Family Court Decree Nisi – Costs Order – Settlement Negotiation – Abuse of Process – Paper Hearing. This was an application for leave to appeal to the Court of Final Appeal by the respondent (BCA) following the dismissal of his appeal for want of prosecution by the Court of Appeal on 25 February 2014. The original appeal concerned a Family Court order made on 21 September 2005 in FCMC 11752/2004 which pronounced a decree nisi and ordered the respondent to pay the costs of the suit. The respondent filed a Notice of Motion on 25 March 2014 seeking leave to appeal. The Court of Appeal enquired with the parties whether there was any objection to dealing with the application for leave to appeal on paper. The petitioner did not reply. The respondent replied stating he would think a paper application would suffice. The court directed the respondent to confirm by 15 April 2014 whether he objected. The respondent did not respond to the court’s directions. The court proceeded to deal with the application on paper. The Court of Appeal considered whether the appeal could be brought as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. The court held that the judgment did not come within the terms of section 22(1)(a) as it did not involve property or civil right amounting to or of the value of $1,000,000 or more. The respondent could not appeal as of right. The court then considered whether to exercise discretion to grant leave under section 22(1)(b). The respondent set out eight grounds in his Notice of Motion, primarily pertaining to the facts in the case below or in another action between the parties. The grounds included complaints about the Learned Justices erred in concluding the Appellant had solely caused delay, erred in not considering delays caused by the Petitioner’s solicitors, and erred in not considering time consumed by settlement negotiation. The court observed that these grounds did not raise any question of great general or public importance. The court found no merits in the grounds, noting that the respondent’s inordinate delay and persistent failure to comply with court directions was indicative of a lack of genuine intention to proceed with the appeal. The respondent failed to provide a good reason for his delay and non-compliance. The court noted that the proceedings in FCMC 11752/2004 to tax the petitioner’s costs have been put on hold pending the outcome of the appeal. The court failed to understand the point made in ground 7 regarding the Registrar of Civil Appeals granting an extension. In short, the court was of the view that there is no basis for exercising the discretion to grant leave to appeal under section 22(1)(b). Accordingly, the application for leave for appeal to the Court of Final Appeal was dismissed. The petitioner and respondent were both unrepresented in these proceedings.
Legal issues: Appeal as of right under s.22(1)(a) · Discretionary leave under s.22(1)(b)
Outcome: Application for leave for appeal to the Court of Final Appeal is dismissed.