PETER AR FU LAM v. BUILDING AUTHORITY

HCMP 2878/2015

MISCELLANEOUS PROCEEDINGS NO 2878 OF 2015

(ON AN INTENDED APPEAL FROM HCAL 113 OF 2015)

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J U D G M E N T
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Hon Poon JA (giving the Judgment of the Court) :

1.  This is the applicant’s ex parte application for extension of time to appeal against the order of Au J dated 12 October 2015, refusing to grant him leave to judicially review the demolition order issued by the Building Authority on 20 March 2008 which required him to demolish a container erected or installed on the roof of his premises.

2.  The learned Judge has set out in some length the reasons why he refused to grant leave in his observations accompanying his order.

3.  In an application for leave to appeal out of time, the Court of Appeal takes into account :

(1) the length of the delay;

(2) the reasons for the delay;

(3) the chances of the appeal succeeding if time for appealing is extended; and

(4) the degree of prejudice to the potential respondent if the application is granted.

4.  The statutory time limit for the applicant to appeal against the Judge’s order expired on 26 October 2015.  He took out the present summons for leave to appeal out of time on 4 November 2015.  So there is a delay of nine days.  The delay is not inordinate.

5.  The applicant explained the delay thus.  He had a pre-planned trip to visit his daughter in the USA in October 2015.  He requested the Judge to extend the time until end of October 2015 “for releasing any court paper that required [his] personal attention.”  However, the Judge refused to grant the extension and made his order on 12 October 2015.  The applicant took out the application after returning to Hong Kong.

6.  It seems that the applicant is complaining that the Judge ought to have withheld the order until his return to Hong Kong.  But the Judge was perfectly entitled to conduct the case in the way as he did.  He is enjoined to dispose of an application for leave to apply for judicial review as expeditiously as practicable in the circumstances of the case.  The applicant’s inconvenience because of an overseas trip is hardly a relevant consideration in the overall case management by the Judge.

7.  The delay in taking out the present application is in our view self-inflicted by the applicant.  It is inexcusable.

8.  More importantly, we can see no substance whatsoever in the applicant’s intended appeal.  We have carefully considered all the grounds of appeal that he sought to rely on.  They are essentially a repetition of the grounds and arguments advanced before the Judge in support of his application for leave to apply for judicial review.  The Judge has dealt with them in his observations in length. We agree with his reasons entirely.  As the Judge has demonstrated, all the grounds are simply not reasonably arguable.  The Judge was correct in refusing to grant the applicant leave to apply for judicial review.  The applicant has failed to satisfy us that the Judge has in any way erred in so doing.

9.  For the above reasons, we dismiss the applicant’s application for leave to appeal out of time with no order as to costs.