TANG CHI FAI v. DIRECTOR OF LANDS FOR AND ON BEHALF OF LANDS DEPARTMENT

CACV 509/2019

[2020] HKCA 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 509 OF 2019

(ON APPEAL FROM HCAL 391/2019)

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JUDGMENT

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

1.  The decision of Chow J of 21 August 2019 which is challenged by this appeal is a refusal to extend time to bring a judicial review.

2.  By reason of Section 14AA, an appeal against a refusal of extension of time to bring an application for judicial review cannot be brought without leave of the court: see MI & IYW v Permanent Secretary for Security [2018] HKCA 419.

3.  The applicant’s application for leave to appeal was refused by Chow J on 21 October 2019.  Pursuant to Order 59 Rule 2B(3), if the applicant wished to renew the application for leave, he should make such application in accordance with Rule 2A and Practice Direction 4.1 within 14 days from 21 October 2019. 

4.  The proper procedure for renewing an application for leave to appeal before the Court of Appeal is to apply by a summons in a separate set of proceedings in CAMP instead of seeking such leave in the Notice of Appeal.  There are standard directions for processing such leave application in Order 59 Rule 2A and Practice Direction 4.1 once a summons under CAMP is filed.

5.  The applicant has not put forward any good reason for not following the standard practice of seeking leave by way of CAMP.  It is wholly wrong for him to issue and serve a notice of appeal before leave is granted.  The inclusion of an application for leave to appeal in a notice of appeal is misconceived.

6.  In the circumstances, the appeal is incompetent for want of leave under Section 14AA of the High Court Ordinance: see MI & IYW v Permanent Secretary for Security [2018] HKCA 419, and the appeal should be struck out.

7.  Despite the directions of the Registrar of Civil Appeals on 8 November 2019, the applicant did not file any submissions to explain why the appeal should not be dismissed for want of leave.  Nor did he file any application for leave in accordance with Order 59 Rule 2A.

8.  Having read the decision of Chow J of 21 October 2019, we agree that the intended appeal has no reasonable prospect of success. Chow J was correct in holding that this is a private law matter and the decision of the Director of Lands to issue a notice to quit in respect of land held under a Short Term Tenancy is not amenable to judicial review.  In addition to the authorities cited in the judgment of 21 August 2019: see also Wong Ho Tong v Director of Lands [2018] HKCA 330 at [42] to [48].

9.  We order that the appeal shall be struck out and dismissed accordingly.