Cheung Shuk Mei v. Poon Kin Fai and Another

HCMP 1705/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1705OF 2014

(ON INTENDED APPEAL FROM HCCW NO. 461 of 2012)

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BETWEEN

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Before : Hon Lam VP and McWalters JA

Date of Judgment : 4 September 2014

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the order of Harris J of 29 May 2014. By that order, the learned judge ordered the respondents to file a further and better list of documents. That order was made against the background that the existing list of documents filed by the respondents pursuant to an earlier order for discovery of 15 August 2013 were found by the judge to be inadequate. The judge also ordered the respondents to pay costs on common fund basis. The judge refused leave to appeal on 30 June 2014.

2.The application was lodged by the respondents on 14 July 2014.  There is also an application for stay of the order of 29 May 2014 in the summons.  Apart from a short affirmation of an assistant solicitor (in support of the stay application), the respondents also lodged a statement in support of their application for leave on 14 July 2014.  In addition, counsel for the respondents lodged his revised submissions on the application for leave on 16 July 2014.

3.The application is opposed by the petitioner and a statement in opposition to the application is filed on 28 July 2014.  There is also a set of skeleton submissions prepared by counsel for the petitioner of the same date.

4.Having read the statements and submissions of the parties and the judgment of the judge, we are of the view that the decision is a case management decision and we should not interfere with such a decision unless it is clearly wrong: see Li Xiao Yun v China Gas Holdings Ltd HCMP 466 of 2013, 11 March 2013; 厦門新景地集團有限公司v Eton Properties HCMP 13 of 2012, 14 Feb 2012, para 9; Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 para 31.

5.In the present case, for the reasons given by the judge in his judgment of 29 May 2014 (with which we agree), instead of being clearly wrong, we are of the view that the judge’s decision is plainly right. The submissions by counsel for the Respondents made the following points:

(a) the application is a fishing exercise;

(b) the responsibility for keeping proper records vested in the company;

(c) the complaint of unfair prejudicial conduct is bad in law;

(d) pleadings are not closed;

(e) concern on the width of the discovery and the disproportionality in ordering the same; and

(f) unwarranted penalisation of the respondents on costs.

6.In our judgment, none of these arguments has any merits in terms of the challenge to the order made by the judge.  The judge has clearly explained why the application is necessary and thus, it is not a fishing exercise.  Grounds (b) and (c) are arguments to be considered at the trial of the petition.  At this stage, we are not prepared to say that the complaint of mismanagement is bad in law.  Hence, these grounds cannot absolve the respondents from giving discovery as ordered by the judge.  Ground (d) is misconceived in the context of a petition where there is no procedural requirement under the rules for the filing of pleadings.

7.On the concern as to the width of the discovery, the judge had addressed the same adequately at paras 12 and 13 of his judgment.  If there are difficulties or disagreements between the parties on the actual compliance with the order, and if the petitioner shall act unreasonably in insisting on unrealistic details to be included in the further and better list, the respondents can go back to the judge for further directions.  But the respondents must make a bona fide effort to comply with the order in accordance with the spirit laid down under para 12 of the judgment.

8.In the circumstances of how the matter was argued before the judge (as set out in his judgment) we do not see any arguable ground for disturbing his exercise of discretion as to costs.

9.For these reasons, we refuse to grant leave.  We are of the view that the application for leave is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.

10.We also order the respondents to pay the costs of the petitioner in the present proceedings.  We agree with the petitioner that it is a proper case for an award of costs on indemnity basis: hopeless satellite litigation challenging case management decision should be discouraged when leave to appeal has been refused by the court below.  After considering the Petitioner’s statement of costs, confining ourselves to the costs incurred after the refusal of leave by the judge, we fixed such costs at the sum of $64,183.31.

Written submissions by Ms Anita Ma, instructed by Charles Chan & Co, for the Petitioner

Written submissions by Mr Kelvin Leung, instructed by M.C.A. Lai & Co, for the Respondents