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Ho Kang Yau v Ho Chun Wing

Judgment Cited in 4 Precedent Map Related
Vincent
Judgment Date24 May 2011
Year2011
Citation[2011] 3 HKLRD 491
Judgement NumberCACV42/2011
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV42/2011 HO KANG YAU v. HO CHUN WING

CACV 42/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 42 OF 2011

(ON APPEAL FROM DCCJ NO. 5195 OF 2008)

________________________

BETWEEN

HO KANG YAU Plaintiff
and
HO CHUN WING Defendant

________________________

Before : Hon Cheung, Yeung and Yuen JJA in Court

Date of Hearing : 12 May 2011

Date of Decision : 24 May 2011

________________________

J U D G M E N T

________________________

Hon Cheung JA :

Background

1. On 25 January 2011 the plaintiff obtained judgment from HH Judge S.T. Poon of the District Court (‘the judgment’) against the defendant for, among other things, an order that the defendant do within 42 days make full and frank disclosure of all moneys, assets and properties belonging to HO SZ WO TONG otherwise known as HOA SZ WOA TONG (何泗和堂) (‘the Tong’), including but not limited to the land being Lot No. 477 in Demarcation District No. l65 (‘the Land’), which has, at any time, come into and out of the hands of the defendant, his employees, servants or agents or received by any other person on his behalf; and that such accounts to be : -

(a) prepared in accepted Hong Kong accounting practice; and

(b) verified by an affidavit/affirmation of the Defendant.

2. The judgment was obtained pursuant to the plaintiff’s application by summons under Order 43 rule 1 (summary order for account) and Order 14 (summary judgment) of the District Court Rules (Cap. 336H).

3. On 15 March 2011 the defendant filed a notice of appeal against the judgment and applied for a stay of execution of the judgment before Judge Poon. On 12 April 2011 Judge Poon refused the application. The defendant applied to this Court to stay the execution of the judgment.

4. This matter came before me on 29 April 2011. I raised the issue whether the appeal has been properly constituted and adjourned the application to the Full Bench of this Court. I directed that the issue of leave to appeal was to be considered at the adjourned hearing. After the adjournment the plaintiff issued a summons to strike out the notice of appeal on the ground that leave to appeal has not been obtained.

The issue

5. I will now consider the following issues arising from the two applications.

(1) Is leave to appeal required?

(2) Has leave to appeal been granted to the defendant?

(3) Effect of leave not being obtained;

(4) Should leave to appeal be granted by this Court?

(5) Should there be a stay of execution of the judgment?

(6) Should the notice of appeal be struck out?

1) Is leave to appeal required?

6. Following the judgment, the defendant had by summons dated 26 October 2010 applied to Judge Poon for leave to appeal against the judgment. Judge Poon refused the application on 25 January 2011.

7. The defendant then renewed the application by summons dated 8 February 2011 to a single judge of this Court. The plaintiff did not lodge any statement in opposition to the renewed application.

8. On 7 March 2011 a judge of this Court considered the application on paper and ordered that :

‘ The defendant is entitled to appeal as of right being an “order determining in a summary way the substantive rights of a party to an action” pursuant to O. 59 r. 21(1)(a).’

9. Subject to exceptions, leave to appeal is required in respect of interlocutory judgments given by the Court of First Instance of the High Court. Order 59 rule 21(1) provides that certain ‘interlocutory’ judgments do not require leave to appeal and they can be appealed against as of right. Amongst them is a judgment determining in a summary way the substantive rights of a party to an action (rule 21(1)(a)).

10. The judgment on the face of it falls under this Order because the plaintiff sought an account from the defendant and he obtained the order by way of summary judgment.

11. However, that Order is only relevant in respect of appeals to the Court of Appeal from the Court of First Instance in the High Court. As the judgment was obtained in the District Court, the mode of appeal is governed by the District Court Ordinance (‘DCO’) (Cap. 336). The effect of section 63 of DCO is that, subject to specified exceptions which are not relevant to this case, an...

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4 cases
  • China Medical Technologies, Inc. (In Liquidation) v Bank Of China (Hong Kong) Ltd
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 2 April 2019
    ...that a direction had already been given and the parties did not take step to challenge the direction, see Ho Kang Yau v Ho Chun Wing [2011] 3 HKLRD 491; Kwan Chui Kwok Ying v Tao Wai Chun [2008] 2 HKLRD 63; White v Brunton [1984] 2 All ER 18. In the present appeal, the issue of leave requir......
  • Hong Kong Housing Society 對 The Personal Representative(s) Of The Estate Of Kwok Hoi Young, Deceased 及另二人
    • Hong Kong
    • District Court (Hong Kong)
    • 6 May 2013
    ... ... Kang ... 見Ho Kang Yau 訴 Ho Chun ... Wing ... ...
  • 陳艷珠 對 李春鳳
    • Hong Kong
    • District Court (Hong Kong)
    • 23 August 2013
    ...“聆訊有關上訴許可申請的法官、聆案官或上訴法庭除非信納：－ (a) 有關上訴有合理機會得直；或 (b) 有其他有利於秉行公正的理由，因而該上訴應進行聆訊， 否則不得批予上訴許可。＂ 見Ho Kang Yau訴Ho Chun Wing [2011] 3 HKLRD 491, 11. 案例說明「有合理機會得直」，是指得直的機會必須「多於『不是空想』」（not fanciful），但無需達到「很可能發生」（probable）的標準：見Ho Yuen Ki Winnie訴Ho Hung Sun Stanley，HCMP 1009/2009（未經輯錄，2009年8月24日）；Wynn ......
  • 鄧觀連 對 Person(s) In Occupation Of The Premises 及另一人
    • Hong Kong
    • District Court (Hong Kong)
    • 26 August 2014
    ... ... Kang" Yau 訴 Ho Chun Wing [2011] 3 HKLRD 491， 第495頁第20段） ... 20.   土地的實\xE7" ... ...

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