HEE LEE INVESTMENT CO LTD v. JOY EXPRESS LTD

CACV164/2004 & CACV 222/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEALS NO. 164/2004 AND NO. 222/2004

(ON APPEAL FROM HCA No. 4096 OF 2002)

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DECISION

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Hon.  Yuen JA (giving the decision of the Court):

1.  This is the Defendant’s application for leave to appeal to the Court of Final Appeal ("CFA") from the decisions of this court given on 7 January 2005, reasons for those decisions having been handed down on 14 January 2005.

2.  Those decisions being interlocutory, leave can be given only if the questions involved are ones which, by reason of their great general or public importance, or otherwise, ought to be submitted to the CFA for decision (s.22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap. 484).

3.  We have considered the questions proposed on behalf of the Defendant.We do not consider that any of the questions proposed satisfy the test laid down in s.22(1)(b).

The 1st question

4. The Rules of Court are clear that an application for stay of an order of a judge of the Court of First Instance ("CFI") should not be made directly to the Court of Appeal unless the applicant satisfies the court that "special circumstances make it impossible or impracticable to apply to the court below" (Order 59 Rule 14(4) RHC).

5.  Yeung JA in his decision dated 13 September 2004 recorded at paragraph 31 that "Joy Express does not suggest that there are any special circumstances which make it impossible or impracticable to apply to the court below for stay" and consequently he held at paragraph 32 that "procedurally there is no valid basis upon which I should exercise my discretion to grant the order of stay".

6.  That decision is clearly right, as we said in paragraph 9 of our Reasons for Decision dated 14 January 2005.  It is not a matter whether the Court of Appeal has jurisdiction to grant a stay when the applicant has not applied to the court below (it clearly does have jurisdiction) - it is a matter whether it should exercise its discretion to do so when there has been non-compliance with the express Rules of Court. 

7.  Consequently, we see nothing in the 1^st question that merits leave.

The 2nd question

8.  As for the 2^nd question, there was nothing in the judge’s conduct which would support the Defendant’s allegation of lack of confidence in him.  Mr Choy referred to the fact that a "Restricted" stamp appeared on Chung J’s judgment.  That simply reflected the fact that the hearing was in chambers and therefore no report was to be made without the authority of the judge, in accordance with Practice Directions 25.1.

9.  The mere fact that the Defendant considered that the judge below erred in law or in fact does not make it a special circumstance making it "impossible or impracticable" to apply to the court below for a stay.  Ex hypothesi, every time a litigant applies for a stay pending appeal, he is suggesting that the judge below has erred in law or in fact.  It has never been held that in applications for stay pending appeal, a litigant can apply directly to the Court of Appeal by reason simply that an appeal has been lodged against the judge’s decision.

10.  Again therefore we see nothing in that question that merits leave.

The 3rd question

11.  The 3^rd question is not engaged at all because there was simply no evidence before us that the removal of the obstructions might pose a danger to the public.  That had been recorded in paragraph 10 of our Reasons for Decision dated 14 January 2005. 

12.  Oral allegations made by the Defendant’s representative at the bar table could not be treated as evidence.  In the eight months since Chung J’s order (July 2004), the Defendant has never filed any affirmation evidence substantiating the allegation that danger would be caused to the public by the execution of the order.  There was no reason for this court to receive viva voce evidence offered by the Defendant’s representative at this hearing. 

The 4th question

13.  Despite the fact that the Defendant’s representative had made no submissions on the security for costs appeal, we had in paragraph 11 of our Reasons for Decision stated our view on the chances of success of the proposed appeal from Chung J’s judgment.  The 4^th question is therefore not engaged.

14.  Again the Defendant’s representative chose not to make submissions before us on that issue at the hearing for leave to appeal to the CFA.  We see nothing in that question that merits leave.

15.  The application should therefore be dismissed with an order nisi that the costs of the application be to the Plaintiff (Respondent).

Mr Kenny Lin instructed by Vivien Chan & Co for the Plaintiff (Respondent)

The Defendant (Appellant) represented by its director Mr Choy Bing Wing, by leave

CACV 222/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 222 OF 2004

(ON APPEAL FROM HCA 4096 OF 2002)

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CACV 164/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 164 OF 2004

(ON APPEAL FROM HCA 4096 OF 2002)

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BETWEEN

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REASONS  FOR  DECISION

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Hon Tang JA (giving the Reasons for Decision of the Court):

1. Hee Lee Investment Company Limited (“Hee Lee”) is the plaintiff in HCA 4096/2002.  Joy Express Limited (“Joy Express”) is the defendant. 

2. On 3 May 2004, Chung J ordered the defendant to remove or demolish the neon signboard measuring approximately 10 meters by 2.8 meters and bearing, inter alia, the Chinese characters “港式餐廳” outside the north-eastern side of the 1^st Floor, Cheong K Building, Nos. 84 and 86 Des Voeux Road Central, Hong Kong (“Property”) facing Des Voeux Road Central and to take all necessary steps to remove all the obstructions of the 2 sets of windows each measuring approximately 4 meters by 1.5 meters built on the north-eastern side of the Property.  This is the subject of the appeal in CACV 164/2004.

3. On 12 July 2004, Joy Express, in the meantime, having failed to comply with the Order of 3 May 2004, Chung J further ordered that Hee Lee be at liberty to do such acts as were required by the Order at the cost of Joy Express, and upon the acts being done the expenses so incurred by Hee Lee may be assessed and execution may be issued against Joy Express for the amount so assessed.  This is the subject of the appeal in CACV 222/2004.

4. By summons dated 20 July 2004, Joy Express sought a stay of the Order of 12 July 2004 and the consolidation of the two appeals. 

5. By summons dated 30 June 2004, Hee Lee sought security for costs for the appeal against Joy Express.

6. These summonses were heard by Yeung JA who on 13 September 2004 ordered the consolidation of the two appeals.  He refused a stay but ordered security in the sum of $200,000.

7. By summons dated 15 September 2004, Joy Express has applied to this court for a stay as well as to rescind the order for security.

Stay

8. Order 59, rule 14(4) of the Rules of the High Court provides that:

“Where under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below.”

9. There has been no acceptable explanation from Joy Express why no application was made to Chung J for a stay.  Nor were there special circumstances which made it impossible or impracticable for Joy Express to apply to Chung J.  For that reason, Yeung JA refused a stay.  We have no reason to disagree.  Particularly since this is not a case where the refusal to stay would render the appeal nugatory.  In the event of Joy Express succeeding in the appeal, there is no reason why the neon signboard and the other obstructions could not be reinstated. 

10. In his oral submission, Mr Choy referred to Redland Bricks Ltd v. Morris and Another [1970] AC 652 and made the point that the 3 May 2004 order was “unworkable” because it had failed to inform Joy Express precisely what it was ordered to do in relation to the obstructions.  We do not agree.  The order made it quite clear that the obstructions had to be removed and had clearly identified the obstructions.  That being the case, the fact that Joy Express was ordered to take all necessary steps to remove all the obstructions did not render the order imprecise.  Mr Choy also argued that the removal of the obstructions might pose a danger to the public.  But there was no evidence to that effect.  Nor had the point been taken in the defence or in the notice of appeal.  So that was not an argument we would entertain and we declined to do so.

Security for costs

11. Although Mr Choy made no submission in relation to security for costs, for the sake of completion we will deal with this matter.  It is clear from the evidence that although Joy Express owns a valuable Property, that Property is encumbered with an “all-moneys” charge.  Yeung JA relied on affirmations filed by Joy Express in its application to allow Mr Choy to be its representative for the purpose of the litigation, where Joy Express admitted “that it had neither budget nor spare money to pay for any legal fees”.  On the evidence before him, Yeung JA was perfectly entitled to conclude that this was a proper case to order Joy Express to provide security for Hee Lee’s costs of the appeal and he set the amount at $200,000.  Again, we see no reason to take a different view.  As for the chances of success of the proposed appeal, suffice it to say that we do not consider that they are such as to cause us to exercise our discretion not to order security despite Joy Express’ impecuniosity.

Conclusion

12. For the above reasons, we dismissed Joy Express’ application by summons dated 15 September 2004 with costs.