Leung Kwai Ling and Another v. Ma Ho Fai and Another

HCA 1225/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1225 OF 2013

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D E C I S I O N

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1.This is an application by way of summons taken out by the second-named plaintiff, Mr Lee Yiu-kei, to set aside the order I made on 29 July 2014 (“the Order”).

2.In the hearing on 29 July 2014, only the first-named plaintiff appeared and the second-named plaintiff was absent.

3.On 1 August 2014, both plaintiffs launched an appeal against the Order.  Since the plaintiffs had already commenced the appeal proceedings, I do not have any further jurisdiction to hear the present application.

4.It seems that the second-named plaintiff is also relying on O 32 r 5 in asking the court to set aside the Order on the ground that he was absent in the hearing. 

5.Firstly, I must point out that I do not have the power under O 32 r 5(3) to rehear the case because the Order has already been perfected.  The court has jurisdiction under O 32 r 5(4) to restore a summons for rehearing.  However in the hearing on 29 July 2014, the court mainly dealt with the application taken out by the defendants. Since such application was not taken out by the second-named plaintiff, the one who failed to attend the hearing, the court has no power under O 32 r 5 to restore the defendant’s summons for rehearing.

6.In relation to the second-named plaintiff’s summons, since he has already launched an appeal against the Order, the court will not deal with his application.  Furthermore, the second-named plaintiff has not provided a satisfactory explanation to justify his absence in the hearing on 29 July 2014.  So for all these reasons, there is absolutely no merit in the second-named plaintiff’s application and I therefore dismiss the same.

The plaintiffs appeared in person

Mr Shum Cheuk Pan, of Woo, Kwan, Lee & Lo, for the defendants