Chan Wan Yee v. Chan To Fun

CACV 21/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 21 OF 2014

(ON APPEAL FROM HCAP NO. 2 OF 2012)

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JUDGMENT

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

1.By a Notice of Motion of 18 December 2014, the defendant sought leave to appeal against the decision given by us on 21 November 2014 to the Court of Final Appeal.

2.Our decision of 21 November 2014 was the upholding of the decision of Kwan JA made on 3 October 2014 ordering the defendant to pay security for costs in the sum of $133,300.

3.The defendant must satisfy the criteria in Section 22 of the Hong Kong Court of Final Appeal Ordinance before we can grant leave.  The order for security for costs is an interlocutory decision and as such the “as of right limb” is not engaged.

4.On the discretionary limb of Section 22 of the Hong Kong Court of Final Appeal Ordinance, the defendant has not even begun to identify any question of great, general or public importance.  The grounds set out in the Notice of Motion are grounds challenging the judgment of L Chan J in the Court of First Instance and they revolved around the facts of the present case.  They are not pertinent grounds for the purpose of an appeal against our decision of 21 November 2014.  The same observation can be made in respect of Grounds A and B in the submissions of the defendant of 30 Jan 2015.  Further, for the reasons given by us in our judgment of 21 November 2014 and Kwan JA in her judgment of 3 October 2014, those points are not reasonably arguable.

5.Ground C in the submissions of 30 Jan 2015 only contained general assertions as follows:

“ (a) It is just that the Defendant’s substantive appeal should be considered;

(b) The Defendant’s substantive appeal would be oppressed and stifled by the security for costs order by reason of his impecunious condition; and

(c) With respect, the Court of Final Appeal should be jealous in guarding against the misuse of its resources on interlocutory arguments. Resolving arguments on the strength or weakness of a case is an expensive and time consuming process.  More often than not, the parties’ interests would be much better served by focussing their resources on a speedy trial of their disputes.”

6.Plainly these cannot be proper grounds to support an application for leave on the discretionary limb.

7.For these reasons, we dismiss the Notice of Motion of 18 December 2014.  We also order the defendant to pay the plaintiff’s costs of the motion.  We are of the view that costs should be fixed summarily.  For that purpose, we direct the plaintiff to lodge and serve a statement of costs in accordance with Appendix A in PD 14.3 within 7 days from the handing down of this judgment.  The defendant may lodge and serve his comments on the statement of costs within 7 days thereafter.  We shall then fix the costs on paper.

Written submissions by Mr Edward M H Chan, instructed by Lee & Chow for the plaintiff

Written submissions by the defendant