Ho Sin Ying v. Chan Yui Ling and Another

CACV 221/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 221 OF 2013

(ON APPEAL FROM HCA NO. 1531 OF 2012)

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BETWEEN

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Before : Hon Cheung CJHC, Lam VP and Kwan JA in Court

Dates of Written Submissions : 29 September, 27 October and 5 November 2014

Date of Decision : 14 November 2014

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DECISION

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

1.In this appeal, we handed down our main judgment on 25 July 2014. For the reasons given therein, the appeal was dismissed with costs. By a Notice of Motion of 22 August 2014, the Plaintiff seeks leave to appeal to the Court of Final Appeal. Agreed directions were given to facilitate the paper disposal of the application. Submissions were lodged by the parties accordingly.

2.At the outset, we wish to take this opportunity to remind practitioners that this court will not allow an application of this nature to be deployed as an occasion for re-running the substantive arguments (whether reformulated or in the same way as the arguments already canvassed in the substantive appeal).  This comment applies to both written as well as oral (if an oral hearing takes place) presentation of materials in the context of an application for leave to appeal.  It should be borne in mind that by this stage, this court has made its decision on the substantive appeal after hearing the appeal itself.  The court is therefore familiar with the background and the substantive arguments engaged.  Extensive regurgitation of such arguments before this court in an application for leave to appeal to the Court of Final Appeal is unnecessary.  The focus in the application is whether the requirements for granting leave under s 22 of the Hong Kong Court of Final Appeal Ordinance [“HKCFAO”] can be satisfied.

3.Henceforth, this court expects practitioners to bear the above observations in mind in the preparation of their submissions for an application of this nature.  The submissions should not seek to re-argue the points which had already been canvassed at the appeal.  They should focus on how it is contended that leave should or should not be given in accordance with the relevant criteria in the HKCFAO and whether those points actually arise in the context of the case before the court.  In future, the court may return submissions which substantially go beyond such parameters and counsel and solicitor will not be entitled to costs for the preparation of the same.

4.In the present case, the Plaintiff accepts that s 22(1)(a) of the HKCFAO is not engaged.  She relies on s 22(1)(b) both on the “great, general or public importance” limb [“GPI limb”] and the “otherwise” limb.

5.In the Notice of Motion, the following questions are formulated for the purpose of the GPI limb:

“(1) “What is a cause of action?”

(2) “Whether different legal formulations of two or more claims based on the same set of underlying facts should be regarded as the same cause of action?”

(3) “Whether a plaintiff in an action which has been discontinued by consent is precluded by the principle of res judicata in the wider sense (or otherwise known as Henderson v Henderson abuse of process) from bringing a subsequent action based on the same or similar facts?”

(4) “Whether, in respect of a claim against the estate of a person who died intestate which arose at or after the death of that person, time would start to run for the purposes of the Limitation Ordinance (Cap 347) before letters of administration were granted?” ”

6.The first two questions can be considered together.  As observed by Gummow NPJ in the recent decision in Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei FACV No 23 of 2013, 17 July 2014, para 24, the expression “cause of action” is not a term with a universal and fixed meaning and content.  Its precise meaning depends on the context in which the expression was used.  In our main judgment, we considered the meaning of that expression in the context of the Undertaking and the consent order of 22 March 2012 which are peculiar to the parties to this action.  We adopted an approach which is in accordance with well established authorities on construction of documents.  We cannot see how a point of GPI can arise in that exercise.

7.The third question must be considered in the context of our finding that the pursuit of the present action is a breach of the Undertaking.  The submissions of Mr Hung and Ms Ng (for the Plaintiff) focused on the inapplicability of the doctrine of abuse of process to the mere discontinuance of an action.  With respect, the focus was misplaced.  In the application of the broad merits-based assessment (a test not disputed by Mr Lee SC who appeared for the Plaintiff in the appeal), it should be plain from a fair reading of our judgment that we placed weight on the breach of the Undertaking as opposed to the discontinuance of the action.  Our finding on abandonment of the claim also flowed from there.  In any event, the application of the broad merits-based assessment to the facts of the present case cannot be a matter of GPI.

8.The fourth question was not considered in our main judgment.  It cannot provide a basis for granting leave in this appeal.

9.In respect of the “otherwise limb”, with respect, the matters canvassed in the Notice of Motion in support of this limb are recalibration of substantive arguments (some of which departed from the stance adopted by Mr Lee SC at the substantive appeal hearing).  As we observed at the beginning of this decision, this is not an appropriate course to adopt.

10.In the submissions of 29 September 2014, Mr Hung submitted that because the Plaintiff had a good prospect of success, leave should be granted on this limb.

11.It has been said repeatedly that leave under the “otherwise” limb should only be granted in exceptional circumstances.  We are not satisfied that the present case warrants leave being granted on that basis.

12.We accordingly dismiss the Notice of Motion with costs.  The Defendants have not submitted a statement of costs for summary assessment.  We would provisionally fix such costs at $80,000.  If a party wishes to vary such assessment, submissions of not more than 5 pages can be filed and served within 7 days.  After that, we would determine the summary assessment on paper.

Written Submissions by Mr Andy Hung and Ms Senia Ng, instructed by Damien Shea & Co, for the Plaintiff

Written Submissions by Mr Paul H M Leung, instructed by S K Wong & Co, for the 1^st and 2^nd Defendants