HEALTHY LIVING PRODUCTS INTERNATIONAL LTD AND ANOTHER v. MURRAY ALASTAIR ELLIOT

CACV 50/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 50 OF 2011

(ON APPEAL FROM HCA NO. 1463 OF 2009)

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BETWEEN

HEALTHY LIVING PRODUCTS INTERNATIONAL LIMITED 1st Plaintiff
CHAN YU SANG ZARRINA 2nd Plaintiff
and
MURRAY ALASTAIR ELLIOT Defendant

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Before: Hon Fok, Chu JJA and Bharwaney J in Court

Date of Hearing: 31 January 2012

Date of Judgment: 31 January 2012

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1. This is the plaintiffs’ application for leave to appeal to the Court of Final Appeal against our Judgment handed down on 11 October2011, by which we dismissed the plaintiffs’ appeal against the order below striking out their statement of claim and dismissingtheir action against the defendant.

2. The application for leave is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, under the “or otherwise” limb and additionally or alternatively on the basis that a question of great general or publicimportance is involved in the appeal.

3. As to the latter, the question said to be one of great general or public importance, as set out in the notice of application, is:

“2. … whether the circumstances of the present case constitute, as a matter of law or otherwise an abuse of the court’s processso as to justify denying the Applciants’ rights of access to the court.”

4. In dismissing the appeal against the Judge’s order below, this Court applied the well-known legal principles as to the doctrineof res judicata in the wider sense and concluded that, on the facts of this particular case, the plaintiffs’ action was an abuse of process. Thedecision was fact sensitive and we do not therefore consider that any question of great general or public importance is raised.

5. Turning to the “or otherwise” limb, it is contended on behalf of the plaintiffs that, in the circumstances of the case, it wasunrealistic and unfair to criticise the 2nd plaintiff for not applying to join the 2003 Action and that there are reasonable grounds for believing that she was not in a fitstate to make a decision, and /or that her condition made it unwise for her, to become involved in the stress of litigation.

6. The grant of leave under the “or otherwise” limb is an exceptional course.[1] Notwithstanding the submissions of Mr Bell SC in support of the application, we remain satisfied that the plaintiffs could have raisedthe claims they seek to make in this action, for declarations and the return of the Property, by way of defence in the 2003 Action. This is not a case, as in Ting Kwok Keung v Tam Dick Yuen & Others [2001] 3 HKLRD 12, in which the Court is persuaded to “a position of considerable unease” at the course previously taken by it and we are not persuadedthat leave should exceptionally be granted in this case.

7. In the circumstances, we dismiss the application.

[Discussion on costs]

8. Costs to the defendant are assessed on a gross sum basis at $55,000.

(Joseph Fok)
Justice of Appeal
(Carlye Chu)
Justice of Appeal
(Mohan Bharwaney)
Judge of the
Court of First Instance

Mr Adrian Bell SC, instructed by Huen & Partners, for the 1st and 2nd Plaintiffs/Applicants

Mr Lee Tung Ming, instructed by Wong, Hui & Co., for the Defendant/Respondent

[1] Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260 at §9.