HUANG HSIN YANG v. BANK OF CHINA (HONG KONG) LTD

HCMP 1340/2006

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS no. 1340 of 2006

(on AN INTENDED appeal from hcsd NO. 3 of 2005)

BETWEEN

  HUANG HSIN YANG (黃琛仰) Applicant
  and  
  BANK OF CHINA (HONG KONG) LIMITED Respondent

Before: Hon Rogers VP in Chambers

Date of Hearing: 17 July 2006

Date of Decision: 17 July 2006

______________________

D E C I S I O N

______________________

Hon Rogers VP:

1. This is an application for leave to appeal out of time from a decision of DHCJ L Chan given on 5 June 2006.

2. The matter in respect of which leave to appeal is sought is the order by which the judge ordered four interrogatories to be withdrawn. The hearing of the substantive application, which was to set aside a statutory demand, had a chequered history and, at the moment,the hearing below proper is taking its course.

3. There was a preliminary hearing on 1 February followed by the first hearing on 13 February. That was adjourned to 31 March. Shortlybefore 31 March, the applicant applied for leave to file a further affirmation and that was allowed at a hearing on 22 March andthe hearing of 31 March was adjourned. The next hearing was fixed then for 23 June. As the judge recorded, the interrogatorieswere then served on 17 May and that, of course, was some time after the previous hearings.

4. The judge ordered the interrogatories to be withdrawn because he said that that would disrupt the hearing of 23 June. That hearingwent ahead. The proceedings to set aside the statutory demand were not concluded on that day because the applicant’s counsel hadnot finished his submissions, let alone the respondents having a chance to argue.

5. However, the matter sought to be appealed now is a matter of case management. It is up to the judge to decide how he is going torun the case and if evidence, or in this case interrogatories, is proffered late, it is up to him to decide whether it is going tobe permitted or not. If he refuses to allow interrogatories to be administered and, at the end of the day, the applicant can showthat they should have been administered, there may be something on which they can appeal. But now the matter has been decided; itis in the judge’s hands, and this court does not interfere with case-management decisions at this stage but waits to look at theoverall result to see whether the judge has come to the right conclusion and whether he has relied upon the right facts.

6. In my view, although the delay in this case in filing the notice of appeal was only one day and, therefore, minimal, it would bewrong in this instance to allow an appeal which would interfere with the way the judge is now handling the matter. The matter mustbe left to the judge to proceed with it as he sees fit.

  (Anthony Rogers)
Vice-President

Mr Kelvin Leung, instructed by Messrs Hau, Lau, Li & Yeung, for the Applicant

Ms Wing Kay Po, instructed by Messrs Ford, Kwan & Co., for the Respondent