XTRNX ZHOU CUI HAO v. TING FUNG YEE

[English Translation- 英譯本]

CACV 108/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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Leong, J.A. (delivering the judgment of the Court):

1. The appellant, Ting Fung Yee was sued in the Court of First Instance, High Court on 4th July, 1996 by the respondent, Zhou Cui Hao on her own behalf and as the sole executrix of the late Ng Ching Poon. The respondent asked the Court for an Order of Possession of the premises in which Madame Ting was residing and other relevant orders. The Hon Mrs Justice V Bokhary entered judgment against Madame Ting after trial, and made an Order of Possession of the suit premises and other relevant orders on 30th April, 1998. Madame Ting felt aggrieved at the judgment and lodged an appeal. She did not engage any lawyer to represent her for the appeal. All the appeal procedures were thus handled by her own. On the following day after the judgment was entered, Madame Ting filed a notice of appeal with court and served the same on the respondent. However, she did not comply with required procedures and take a further step to arrange for the appeal to be set down within the prescribed time set out in Rule 5 Order 59 of the High Court Rules of Hong Kong. The appeal was thus held for the time being. By the time the period for setting down the appeal expired, Madame Ting had not yet taken any action.

2. Two months later, on 2nd August, 1998 Madame Ting applied to Mr Justice Liu J.A. for stay of execution of the Order of Possession pending the decision of the appeal. Justice Liu granted the application on 13th August, 1998, but at the same time ordered that the appeal be arranged to be set down by Madame Ting within 14 days after the order for stay of execution was made. Yet, Madame Ting did not do anything. Since then, two more months had lapsed. On seeing that Madame Ting still failed to comply with the order to have the appeal set down, the respondent issued a letter to Madame Ting on 29th October, 1998, warning her that she must have the appeal set down on or before 2nd November, 1998. The letter was served on Madame Ting at her premises on the same day when the letter was issued. Seeing that Madame Ting still failed to take any action, the respondent filed a writ of summons with court to apply for the notice of appeal filed by Madame Ting to be struck out, which is the application now before this Court. However, Madame Ting immediately applied to court on 6th November for the appeal to be set down and specified the time required for the appeal hearing.

3. The respondent did not state her grounds in the writ of summons for applying to strike out the notice of appeal. However, in her affirmation the respondent stated that Madame Ting had failed to comply with the order made by the Hon Mr Justice Liu J.A. to have the appeal set down within 14 days, nor had she applied for extension of time. Thus, without leave being granted, Madame Ting could not effectively apply to have the appeal set down out of time. Accordingly, she applied to have the notice of appeal of Madame Ting to be struck out. In referring to various cases, Mr. Au-Yeung, counsel for the respondent submitted that all litigants shall comply with time limit requirement, and in the circumstances of this case, the notice of appeal of Madame Ting should be struck out in accordance with paragraph 23, Rule 5 of Order 59 of the Rules of the High Court.

4. Counsel for the respondent also alleged that it was Madame Ting's intention to delay the proceedings, thereby seriously affecting the livelihood of the seventy-six-years-old respondent. Madame Ting, in refuting this allegation, said that on 2nd November she did go to court to arrange for the appeal to be set down, which is within the prescribed time as set out in the respondent's letter. On the same day, she also notified the respondent's solicitor of the said situation. What she meant to say was she did not deliberately delay the proceedings.

5. The grounds for appeal submitted by Madame Ting was that the trial judge had failed to point out the reasons for not accepting her evidence. It was her evidence that since 1984 she had resided with Ng Ching Poon, husband of the respondent in the suit premises and carried on the business of a male dormitory thereon. Throughout the years, she relied on this business as her means of living and nobody had ever interfered with them. Therefore, she did not trespass on the premises and she was entitled to the enjoyment of the premises.

6. As pointed out by the Hon Mr Justice Liu when dealing with the application for stay of execution of the Order of Possession, this is a dispute over property involving the interest of family members. Madame Ting might have a ground to point out to the Court of Appeal that the trial judge had erred in her judgment. Accordingly, Madame Ting's appeal was not groundless, nor was it vexatious or an abuse of the process of the court. Had it been so, this Court believes that the Hon Mr Justice Liu would not have on that day granted Madame Ting 14 days to arrange for the appeal to be set down.

7. As to the effect of delay of setting down the appeal on the respondent, the time delayed would be approximately 6 months. However, should Madame Ting fail in her appeal, the proceeds obtained by her from the premises within the 6 months would have to be accounted for. Hence, the effect of such delay of setting down the appeal on the respondent would not be great.

8. In the circumstances, this Court takes the view that it is not fair to strike out the notice of appeal of Madame Ting because this would block the appeal channel of Madame Ting. In addition, in the judgment of this Court, if it was the intention of the respondent to bring this suit to an end as soon as possible, she ought to have acceded to Madame Ting's application on 6th November to have the appeal set down. Had the respondent done so, today's application could have been avoided. For the aforesaid, the respondent's application is refused by this Court, and extension of time until 6th November to apply for the appeal to be set down is granted to Madame Ting, that is the day on which the application was filed with court. This Court further orders that costs of the respondent's application be the costs of the appeal.