China Citic Bank International Ltd v. Durrant Simon Patrick Michael

CACV 127/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2014

(ON APPEAL FROM HCMP NO. 3196 OF 2013)

________________________

BETWEEN

________________________

Before: Hon Kwan, Barma JJA and Poon J in Court

Date of Hearing: 11 September 2014

Date of Judgment: 15 September 2014

________________________

________________________

Hon Kwan JA (giving the judgment of the Court):

1.On 13 August 2014, this court (Kwan and Barma JJA) gave judgment dismissing the defendant’s appeal against the decision of Chu JA on 21 July 2014 (“Chu JA’s Decision”). By her decision, Chu JA dismissed the defendant’s application for a stay of the Order 88 Judgment of Master Leong dated 11 February 2014 and the writ of possession and fieri facias issued pursuant thereto, pending the defendant’s appeal to the Court of Appeal against the Order 88 Judgment and the decision of Deputy High Court Judge S T Poon on 23 June 2014 (“DHCJ Poon’s Decision”) affirming that judgment.

2.On 2 September 2014, the defendant issued a notice of motion seeking leave to appeal to the Court of Final Appeal.  The date of the Court of Appeal judgment being the subject of the intended appeal was not stated in the notice of motion, nor was this mentioned in the affirmation attached to the notice of motion.  As there is only one judgment of the Court of Appeal in CACV 127/2014 so far, this can only be the judgment given on 13 August 2014.

3.Also on 2 September, the defendant issued a summons seeking an “interim stay” of the Order 88 Judgment and the writ of possession and fieri facias pending the present application for leave to appeal and the appeal (if leave is granted) to the Court of Final Appeal.

4.The defendant has filed two affirmations in support, on 26 August and 2 September 2014.  On the day of the hearing, he put in a written submission of five pages and supplemented this with oral submissions, repeating many of the arguments he had made on previous occasions.

5.Prior to the present summons for stay pending appeal, the defendant has made four applications for stay pending appeal, which were all unsuccessful.  This is his fifth attempt.

6.The defendant’s intended appeal does not come within section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  The judgment of this court that is the subject of the intended appeal is not a “final” judgment for the purpose of section 22(1)(a).  He cannot bring an appeal as of right.

7.Section 22(1)(b) provides for leave to appeal to be granted at the discretion of the court where the question involved in the appeal is of great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

8.The judgment of this court on 13 August 2014 is an exercise of discretion refusing to stay pending appeal the Order 88 Judgment and the writ of possession and fieri facias for the reason that this court is of the preliminary view that the defendant does not have an arguable appeal with reasonable prospects of success.

9.The defendant has not identified any question of great general or public importance in the documents he filed in court for this application.  In the affirmation attached to the notice of motion, he merely repeated his position that there are “multiple grounds” for the appeal in CACV 127/2014 against DHCJ Poon’s Decision, which appeal is yet to be heard.  The preliminary view formed by this court on the merits for the purpose of considering whether a stay pending appeal should be granted does not give rise to any question of great general or public importance.  Nor do we think there are any exceptional circumstances for leave to appeal to be granted on the “or otherwise” limb.

10.We therefore refuse leave to appeal to the Court of Final Appeal against the judgment of this court on 13 August 2014.

11.As leave to appeal is refused, there is no question of granting any stay pending the intended appeal to the Court of Final Appeal.

12.We dismiss both the notice of motion and the summons issued on 2 September 2014, with costs to the plaintiff, to be taxed if not agreed.

Mr Lee Shu Wun, instructed by V Hau & Chow, for the Plaintiff (Respondent)

Durrant Simon Patrick Michael, the Defendant (Appellant), appeared in person