Kidde China Ltd v. Etech Fire Ltd

HCMP 1673/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1673OF 2014

(ON AN INTENDED APPEAL FROM DCCJ NO. 1392 of 2011)

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BETWEEN

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Before : Hon Cheung CJHC and Lam VP

Date of Judgment : 16 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 judgment of Deputy Judge S P Yip [“the Judge”] in DCCJ 1392 of 2011. By his judgment of 4 June 2014, the Judge gave judgment for the Plaintiff in the sum of US$65,298.30 plus interest and costs. The Judge accepted the Plaintiff’s case that the Defendant had agreed to take over the goods sold by the Plaintiff to another company and made payment for the same by two cashier orders. Thus, the Judge found that the two cashier orders were not issued for payment of the other liabilities of the Defendant towards the Plaintiff. In essence, the Judge accepted the evidence of the Plaintiff’s witnesses.

2.Instead of applying for leave before the Judge (or another judge in the District Court) the Defendant applied on 10 July 2014 to this court for leave to appeal.  In the summons, the Defendant asked for extension of time to appeal.  In breach of the requirement in Order 59 Rule 2A(1), the summons was not supported by any statement.  After the making of an unless order on 13 August, the Defendant lodged its statement on 19 August 2014. 

3.The application is opposed by the Plaintiff and it has instructed counsel to prepare a statement of opposition, which was filed on 3 September 2014.

4.Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

5.The time for appealing against a final judgment of the District Court is 28 days, see Order 58 Rule 2(4)(b) of the Rules of the District Court.  In the present context, that time limit expired on 2 July 2014.

6.Further, unlike the position in respect of appeals against the interlocutory judgments of the Court of First Instance (see Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515), Order 58 Rule 2(10) of the Rules of the District Court provides that leave to appeal out of time can be granted by the District Court.

7.This court has stressed the importance of applying to the court below for leave to appeal in Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678.  The same rationale applies even though an application is made out of time.  For District Court appeals, even in cases of application out of time, in light of Order 58 Rule 2(10), direct application to the Court of Appeal for leave to appeal should only be reserved for the truly exceptional and urgent cases.  We reiterate the warning at para 12 of that judgment,

“… in the future, litigants and those advising them should be mindful of the approach of the Court in dealing with these applications. Unjustified attempts to sidestep the first-tier stage will not be entertained and this Court will dismiss an application which should be brought in the first instance to the court below. Any delay and costs occasioned by such attempts will have to be borne by the unsuccessful applicant. In such case, such applicant would also have to take the consequence of the delay, even if it means that he would suffer prejudice as a result of his self-generated delay in the application for leave to the court below or in other respects.”

8.In the statement of the Plaintiff lodged on 19 August 2014, Mr Ho (counsel for the Plaintiff) did not explain why application could not be or was not made to the court below.  He only contended that the primary question is the prospect of appeal.  He was obviously mistaken in saying that the time for appeal expired on 19 June.

9.He argued that the Defendant needs not provide an acceptable reason for the delay.  Implicitly, he accepted that the explanation for the delay on the part of the Defendant is not satisfactory.  In our judgment, there is simply no good reason for the delay.  The Defendant was legally represented at all time and therefore should be aware of the existence of time limit for appeal.  Though apparently the Defendant was told of a shorter time limit (14 days as opposed to 28 days) by its legal advisors, that should have prompted it to act faster instead of proceeding without regard to such time limit.  We cannot accept the mere general assertions by the general manager of the Defendant in his affirmation of 10 July 2014 that time was taken to review the judgment and to seek legal advice as proper explanation for the delay.  He said the board of the Defendant authorized the solicitors to proceed with the appeal expeditiously on 27 June.  There was no reason why the board should leave its decision to 27 June when it had presumably been told (though wrongly as it turned out) that time to appeal would expire on 19 June.

10.We do not think there is any valid reason to justify the direct application to this court for leave to appeal.  On this ground alone, we shall dismiss the application. 

11.Further, having read the grounds of appeal in the draft Notice of Appeal submitted by the Plaintiff and the written submissions advanced by counsel for the Plaintiff, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice to have the appeal heard.

12.All the grounds are essentially attacking the findings of facts by the Judge.  In the judgment of 4 June 2014, the Judge gave sufficient and good reasons for accepting the evidence of the Defendant’s witnesses despite some of the points raised by the Defendant (which are repeated in the submissions advanced before us).  Weighing the evidence is a matter for the Judge.  We are not satisfied that it is reasonably arguable that the Judge was not entitled to come to the factual conclusions he did in his judgment.

13.None of the points advanced by Mr Ho persuaded us that there is any reasonably arguable basis for overcoming the threshold for disturbance of finding of facts as explained in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336. 

14.For these reasons, we dismiss the application for leave to appeal.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

15.We order the Defendant to pay the costs of the Plaintiff in this application.  Having considered the statement of costs of the Plaintiff, we fix such costs at $40,000.

Written submissions byMr Vincent Lung, instructed by Hom & Associates, for the plaintiff

Written submissions by Mr Alan Ho, instructed by Simon Wong & Co, for the defendant