THE OFFICIAL RECEIVER v. CHAN HING TO

CACV 84/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 84 OF 2006

(ON APPEAL FROM HCMP 925 OF 2005)

______________________

______________________

J U D G M E N T

______________________

Hon Cheung JA (giving judgment of the Court) :

1. This is an application for leave to appeal out of time by the applicant against the judgment of Yuen JA who struck out his notice of appeal.

Background

2. The applicant, a bankrupt, was disqualified by Master Lung to be, among other things, a company director for a period of four years.  He lodged an appeal to this Court against that decision.

3. The respondent, the Official Receiver, applied to strike out the notice of appeal before Yuen JA sitting as a single judge of this Court.  The basis of the application was that the appeal should be heard by the Court of First Instance and not this Court.  Yuen JA granted the order.

Striking out by a single judge

4. On the morning of the appeal, Mr. Douglas Lam, counsel for the respondent, referred us to the judgment of this Court (Ma CJHC, Tang VP, Stock JA) in Chan Kin Shing Sonny v. Insider Dealing Tribunal and Financial Secretary (CACV 358 and 360 of 2005) which decided that a single judge of the Court of Appeal does not have jurisdiction to strike out a notice of appeal as this involves a ‘determination of the appeal’ as stipulated in section 35 of the High Court Ordinance (Cap. 4).  It is unfortunate that this case which was decided on 28 November 2006 was not drawn by the parties to Yuen JA’s attention when she heard the application in January 2007.

Striking out before us

5. In the light of our previous decision the notice of appeal should not be struck out.  However, both parties agreed that we should treat the hearing as an application before us to strike out the notice of appeal of the applicant.  This is done to avoid the expenses and delay if the respondent is to renew the application again.

Appeal should be in the Court of First Instance

6. The issue before us remains the same as before Yuen JA, namely, whether the appeal against Master Lung’s order should be heard before the Court of First Instance or the Court of Appeal. 

7. This Court (Yeung and Yuen JJA) has decided on 25 May 2006 in 「有關科偉投資有限公司事宜」(Re Forever Wise Investment Ltd) [2006] 3 HKLRD 884 that such an appeal should be heard before the Court of First Instance after considering Order 58 Rules 1 and 2 of the High Court Rules which specified the situations in which an appeal from the master is to be heard by the Court of Appeal.  An appeal from a disqualification order is not one of them.  We see no reason why we should depart from our previous view.

8. It is true that the respondent himself did not list the appeal before the Court of Appeal.  It was an administrative act of the listing officers who at that time was guided only by the first instance decision of Kwan J in Re Forever Wise Investment Ltd which eventually was reversed by this Court.  The decision of this Court was given on 19 January 2007 after the applicant had lodged the appeal.  But this does not mean that the applicant is entitled to have the appeal heard before this Court if in fact the proper forum should be the Court of First Instance.

Conclusion

9. Accordingly the notice of appeal is struck out.

10. As the striking out application was improperly lodged in the first place by the respondent, we made no order as to costs of the application before Yuen JA and before us.