UNITED MUSLIM ASSOCIATION OF HONG KONG AND OTHERS v. YUSUF YU AND OTHERS

CACV 139/2015

[2019] HKCA 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 139 OF 2015

(ON APPEAL FROM HCA 640/2012)

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J U D G M E N T

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

1.  We handed down our judgment dismissing the appeal on 1 August 2018. By a notice of motion of 13 August 2018, the 2^nd to 7^th Plaintiffs seek leave to appeal to the Court of Final Appeal [“the Leave Application”].

2.  Further, these plaintiffs (except the 4^th Plaintiff) issued a summons on 31 August 2018 seeking a stay of execution of the judgment below.  They also sought to stay the bankruptcy proceedings under HCB 3485/2018 pending the outcome of the Leave Application.  They further sought leave to adduce new evidence.

3.  For the Leave Application, these plaintiffs formulated two grounds of appeal in the notice of motion as follows,

“ 1. The Learned Justices failed to take into account that the Appellant (2^nd Plaintiff’s request for producing fresh evidence on various aspects including but not limited to 3^rd Plaintiff’s membership, the forgery and the audited accounts of the 1^st Plaintiff. The production of the new evidence can remedy the incompleteness and rebuttal evidence to rebut the false evidence submitted by the Defendants in the trial.

2. The Learned Justices wrongly conclude that the 2^nd Plaintiff has no valid ground of appeal against the factual findings of the Learned Judge of the original trial. i.e. the factual findings of the Learned Judge were inherently contradictory.”

4.  The first ground is plainly without merit. There was no application for leave to admit fresh evidence when the appeal was argued before us.  This was so notwithstanding that in an earlier judgment of 13 November 2017 handed down by Lam VP and Poon JA refusing to grant any stay of execution the Court already underscored that fresh evidence could not be admitted without proper application for admission of such evidence.  Since then, no summons had been issued for admission of fresh evidence.  A firm of solicitors came on record to represent these plaintiffs on 15 June 2018.  That firm proceeded to lodge skeleton submissions in the appeal and no step was taken to apply for admission of fresh evidence. 

5.  The history of legal representation was set out in detail in our judgment of 1 August 2018.  Right up to the end of the hearing of the appeal, these plaintiffs made no application for admission of fresh evidence.

6.  Even now, notwithstanding the summons of 31 August 2018, there was no cogent explanation by these plaintiffs as to the absence of application for admission of fresh evidence before we handed down the judgment of 1 August 2018.  Further, there is no explanation on the failure to procure such evidence before the trial despite due diligence by the plaintiffs. The mere assertion that the evidence was discovered after the trial is not good enough when there is no evidence as to attempts to obtain the relevant evidence and how these plaintiffs managed to obtain such evidence recently.

7.  The second ground is equally unmeritorious.  We have explained in the judgment of 1 August 2018 the reason for our holding that the plaintiffs failed to raise proper grounds for challenging the findings of fact of the judge.  In the submissions of the plaintiffs, they referred to [50] to [54] of that judgment.  With respect, we cannot see how those submissions support Ground 2 as formulated in the notice of motion.

8.  In any event, none of the grounds raised in the notice of motion involve a point of great, general or public importance.  Nor do we see any other reason for submitting this case to the Court of Final Appeal.  The threshold requirement in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance for leave to appeal is not satisfied.

9.  For these reasons, we refuse to grant leave and dismiss the notice of motion of 13 August 2018.

10.  With the dismissal of the Leave Application, there is no basis for granting any stay of execution or admission of fresh evidence.  This court has no original jurisdiction to entertain any application for stay of the bankruptcy proceedings.  The summons of 31 August 2018 is also dismissed.

11.  We order the 2^nd to 7^th Plaintiffs to pay the Defendants’ costs of the notice of motion.  We also order the 2^nd, 3^rd, 5^th, 6^th and 7^th Plaintiffs to pay the costs of the Defendants in respect of the summons of 31 August 2018.  These costs are to be taxed if not agreed.

CACV 139/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 139 OF 2015

(ON APPEAL FROM HCA NO 640 OF 2012)

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_______________________

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JUDGMENT

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

1.  By a summons of 11 January 2017, the 2^nd Plaintiff applied for stay of execution of the judgment of Recorder Cheng of 14 May 2015.

2.  The appeal against that judgment is to be heard on 17 July 2018. There has been a long lapse of time between the date of the judgment and this application.

3.  Moreover, there had been a summons for similar relief in the court below.  On 27 May 2015, the 2^nd Plaintiff through his solicitors took out a summons seeking a stay of the judgment.  After hearing counsel, on 3 August 2015 the Recorder adjourned the summons for it to be dealt with at a time not earlier than 42 days from that date with 1 hour reserved.

4.  The 2^nd Plaintiff did not explain why he did not restore that summons after the expiry of the 42 days.

5.  Instead, the 2^nd Plaintiff took out another summons on 3 January 2017 returnable before a master for stay of execution of the judgment.  When he appeared before the master on 11 January 2017, he withdrew that summons.

6.  The current position is thus: there is an extant application for stay in the Court of First Instance under the summons of 27 May 2015; at the same time there is a summons for stay issued in the context of this appeal.

7.  Order 59 Rule 14(4) of the Rules of the High Court provides:

“ Wherever 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.”

8.  In the present case, since the 2^nd Plaintiff has an extant application for stay (which he has not explained why he could not restore), there is no justification for this Court entertaining his summons of 11 January 2017.  This is sufficient for its disposal.

9.  Further, the relevant considerations for staying a judgment pending appeal have been explained in Star Play Development Ltd v Bess Fashion Management [2007] 5 HKC 84 at [6] to [10] and SNE Engineering Co Ltd v Chim Kee Machinery Co Ltd CACV 101 of 2016, 15 July 2016 at [30] to [35].  They are well established and we shall not repeat the same in this judgment.  Though both sides acted in person and lodged submissions in their own names, it is clear from the contents of their respective submissions that either they themselves were legally trained or have access to assistance of lawyers in the preparation of the submissions.  The 2^nd Plaintiff referred to Star Play Development and the principles discussed in it in his skeleton submissions of 22 June 2017. 

10.  In the judgment of 14 May 2015, the Recorder found that the 2^nd to 7^th Plaintiffs had not been validly admitted as members of the 1^st Plaintiff, the association, and that the allegations in Public Notice of 21 March 2012 against the Plaintiffs were substantially true.  She also found that the 2^nd to 7^th Plaintiffs tried to exercise control over the affairs of the 1^st Plaintiff without proper authority.  She dismissed the Plaintiffs’ claim and granted relief to the Defendants in the counterclaim.  She granted an injunction restraining the 2^nd to 7^th Plaintiffs from holding out as council members of the 1^st Plaintiff.  She also awarded costs against the Plaintiffs.

11.  In the skeleton submission of the 2^nd Plaintiff of 22 June 2017, he focused on two broad arguments in support of the application for stay:

(a) He has a strong appeal;

(b) He would be in financial difficulties if he has to pay the costs below and he could not afford to engage lawyers to represent him in the appeal.  He also said the Defendants tried to pressurize him to drop the appeal by enforcing the costs order.

12.  Dealing first with the second ground (which can be disposed of briefly), the costs of the Defendants in the court below had been taxed and an allocatur was issued on 8 May 2017.  The taxed costs are $2,276,812.  The 2^nd Plaintiff did not disclose anything about his means other than making general assertion of financial difficulties.  We cannot attach much weight to it.  As Ma J (as the Chief Justice then was) said in Star Play Development at [9(3)], the court requires good evidence to support contention of that nature and a bare assertion is unlikely to meet with much sympathy.  In any event, we do not accept his contention that he could not conduct the appeal properly in person.  Hence, his lack of resources to engage lawyers (even assuming that to be true) is not a ground for granting stay.

13.  The starting point is that the Defendants are entitled to the fruit of the judgment and an appeal does not operate as a stay.  In light of what we shall say below as to the prospect of success in the appeal, we cannot find any countervailing factor strong enough to deprive the Defendants’ right to protect themselves against the lack of effective redress for costs incurred by them by seeking enforcement of the costs order at this stage.

14.  Turning now to the prospect of success, as discussed in the cases though this Court should form a preliminary assessment on the merit it is impractical and undesirable to go deeply into the it at this stage.

15.  In the Notice of Appeal of 15 June 2015 prepared by the then solicitors for the Plaintiffs, theyrelied on 9 grounds of appeal:

(1) The learned Recorder erred in law, fact and logic in concluding that the change of lock by the 2^nd Plaintiff was to preclude the access of the files of the 1^st Plaintiff;

(2) Without substantial reasons in support, the learned Recorder erred in concluding that the 7 candidates who submitted their applications on 7 February 2010 could not have become members of the 1^st Plaintiff and qualified to vote at the 2010 AGM;

(3) Based on the limited evidence available in relation to the list of membership of the 1^st Plaintiff, the learned Recorder erred in concluding that a large number of names which signed on the attendance list for the 2010 AGM could not have been the members of it;

(4) The learned Recorder erred in finding that the 3^rd Plaintiff had lost his membership of the 1^st Plaintiff when he left the employment with the 1^st Plaintiff;

(5) The learned Recorded erred in inferring from the information of parent-teacher association that the 2^nd Plaintiff had no engagement in the 1^st Plaintiff;

(6) Given the court had only limited source of evidence in relation to list of members of the 1^st Plaintiff, the learned Recorder erred in concluding that the 2010 AGM was invalidly convened;

(7) The learned Recorder erred in holding that no meeting was held on 20 June 2010 or 20 June 2011 and therefore that the 2^nd Plaintiff could not have been elected as a Council member at those meetings;

(8) The learned Recorder erred in finding that the 2^nd Plaintiff could not have been elected as a chairman in the 2012 AGM by the reason of Art 31(g); and

(9) The learned Recorder erred in upholding that the executive council of the 1^st Plaintiff continued to be valid.

16.  In the “supplemental sheet” attached to the affirmation of the 2^nd Plaintiff of 11 January 2017, he alleged that some of the documents adduced by the Defendants at the trial were forged.  The only evidence he produced in that regard was his statement to the police.

17.  The 2^nd Plaintiff did not make any application for admission of fresh evidence on appeal and there is no indication as to how he could meet the requirements of Ladd v Marshall [1954] 1 WLR 1489.  On the materials before us, we do not find a good case for admission of any fresh evidence and his allegation of forgery is basically his bare assertion.

18.  It can be seen from his grounds of appeal that they are basically challenge to the findings of fact by the Recorder.  The high threshold in an appeal on facts is well established: see Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1; China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27 November 2015.  An appellant has to show palpable errors in the primary judge’s assessment of the evidence so that the findings are plainly wrong.

19.  In the present case, the 2^nd Defendant simply reiterated his grounds of appeal in his skeleton submissions.  Having considered the same against the judgment of the Recorder, we are of the view that he comes nowhere near of having a strong appeal.

20.  In the absence of any strong and cogent countervailing factor, we do not find it appropriate to grant any stay.

21.  For these reasons, we dismiss the application for stay.  We also order the 2^nd Plaintiff to pay the costs of the Defendants in this application.  Having considered the three statements of costs of the Defendants (seeking $14,000, $8,200 and $8,200 respectively) though only one set of skeleton was filed in their joint names, bearing in mind that they acted in person, we fix their costs by way of gross sum assessment at $4,000 each, representing 20 hours’ work for each of them.