TSUI YUEN (FORMERLY KNOWN AS HO WAI HUNG) v. HO TSE WAI, PHILIP LI & PARTNERS (A FIRM) (formerly known as HO, TSE & WAI & PARTNERS

HCA 587/2015

[2019] HKCFI 2431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 587 OF 2015

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D E C I S I O N

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1.  On 13 June 2019, I handed down judgment (“Judgment”) dismissing the application by the plaintiff (“P”) for leave to appeal out of time against the order of Master Ho dated 26 November 2018 (“Order”) that (a) struck out P’s statement of claim (“SoC”) and dismissed the present action under Order 18 rule 19 of the Rules of the High Court (“RHC”) and/or under the inherent jurisdiction of the court on the grounds that (i) it disclosed no reasonable cause of action, (ii) it is scandalous, frivolous or vexatious, (iii) it may prejudice, embarrass or delay the fair trial of the action and/or (iv) it is an abuse of the process of the court, and (b) ordered P to pay the defendant’s (“D’s”) costs of the action (including costs of and occasioned by D’s summons filed on 9 April 2018 (“Summons”)) with certificate for counsel on party-and-party basis (“Appeal Order”).

2.  By the Appeal Order, I also granted a costs order nisi that P should pay D costs of and occasioned by his application for leave to appeal out of time against the Order (including all costs reserved if any) to be taxed if not agreed. Such costs order nisi had since become absolute. This Decision should be read together with the Judgment. For convenience, I shall adopt the abbreviations in the Judgment.

3.  On 3 July 2019, P filed Notice of Appeal with the Court of Appeal in CACV305/2019 to appeal against the Appeal Order. On 8 July 2019, the Registrar of Civil Appeal wrote to P (and copied to D) (“Registrar’s Directions”) (a) stating that the Appeal Order was an interlocutory decision and leave to appeal had to be obtained under section 14AA of the High Court Ordinance Cap 4 before any appeal could be brought against the Appeal Order to the Court of Appeal, so P’s Notice of Appeal was liable to be struck out, and (b) giving written directions inter alia as follows:

“4. If [P] objects to his Notice of Appeal being struck out, he may lodge written submissions (limited to 2 pages) on or before 24 July 2019 in support of his objection. The Notice of Appeal will be referred to the Court of Appeal for consideration upon [P’s] lodgment of submissions or upon reaching 25 July 2019, whichever is earlier.”

4.  On 5 August 2019, Kwan VP granted the following directions:

“1.  By Notice of Appeal filed on 3 July 2019, [P] seeks to appeal against [the Appeal Order that refused] to grant leave for him to appeal against a Master’s decision out of time.

2.  As [P] has not obtained leave before lodging the appeal herein, the Notice of Appeal is hereby struck out.

3.  Costs of the appeal be to [D], to be taxed if not agreed.”

5.  On 15 August 2019, Kwan VP gave the following written directions to P with copy to D:

“[P’s] Notice of Appeal has been struck out pursuant to the Order made by Hon Kwan VP on 5 August 2019. The Court will not make further response in relation to the captioned appeal, nor will it entertain any application by letter.”

6.  On 11 September 2019, P filed a summons in the present action for (a) leave to appeal against the Appeal Order out of time, and (b) an order that there be no order as to costs of such application (“Leave Summons”).

7.  On the same day, P filed his affirmation in support of the Leave Summons. P stated that he only received the Registrar’s Directions in early August 2019. He claimed not to understand the English language and approached solicitors for help, but he could not afford legal representation to proceed with his appeal. P then approached a human rights group for help. P claimed the Registrar’s Directions that limited his right to trial/appeal and also limited his written submissions to 2 pages were unfair and in breach of his rights under the Basic Law and International Covenant on Civil and Political Rights (“ICCPR”), so P requested this court to grant leave to appeal against the Appeal Order.

8.  Order 59 rule 2B of the RHC provides as follows:

“(1)  Subject to paragraph (4) and any other enactment, an application for leave to appeal against –

(a)  an interlocutory judgment or order of the Court;

......

may only be made to the Court in the first instance within 14 days from the date of the judgment or order.

(2)  So far as is practicable, the application must be made to the judge ...... against whose judgment or order leave to appeal is sought.

(3)  Where the Court refuses the application, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of the refusal.

......

(6)  The Court or the Court of Appeal may extend the period for making an application for leave to appeal before or after the expiry of the period.”

9.  The Judgment was handed down on 13 June 2019. The deadline for P to apply for leave to appeal against the Appeal Order was 27 June 2019. P’s present application for leave to appeal against the Appeal Order was more than 2 months out of time. Hence, P would require extension of time from this court to seek leave to appeal against the Appeal Order.

10.  D’s solicitors by letter dated 17 September 2019 to the court with copy to P (“Letter”) submitted that this court had no jurisdiction to entertain P’s Summons.[1] I disagree. Such submissions ignored the legislative amendments introduced for Order 59 rule 2B(6) of the RHC which allowed the Court of First Instance to extend the period for making an application for leave to appeal to the Court of Appeal before or after the expiry of the period. The authorities cited by D’s solicitors (see footnote 1 above) pre-dated such legislative amendment brought about by LN 122 of 2017.

11.  The relevant approach to determine an application for extension of time to appeal is well established and has been usefully summarised by Kwan JA (as she then was) in Lee Chick Choi v Best Spirits Co Ltd as follows:[2]

“The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted...”

12.  Further, where a delay is inexcusable although insubstantial, a party seeking an extension of time must show a real prospect of success on the merits.[3] Where the delay is substantial and not wholly excusable, the applicant must also show a real prospect of success on the merits and not merely a reasonable prospect of success, or in other words, he would need to demonstrate a strongly arguable case.[4]

13.  Before I turn to consider P’s present application for extension of time to appeal, it is important to set out what the Leave Summons was not about. The Leave Summons concerned application for leave to appeal out of time against the Appeal Order. It was not an application for leave to appeal out of time against the Registrar’s Directions, which would be outside the jurisdiction of this court. In any event, the Court of Appeal had struck out P’s Notice of Appeal so there was no longer any pending appeal at the Court of Appeal to support P’s complaints against the Registrar’s Directions (see paragraph 5 above). Hence, it would be unnecessary for this court to consider P’s complaints in his supporting affirmation that the Registrar’s Directions constrained his right to trial/appeal in breach of his rights under the Basic Law / ICCPR.

14.  Returning to the Leave Summons, on the question of the length of and reasons for delay, P in his supporting affirmation explained that he only received the Registrar’s Directions in early August 2019. I note the Notice of Appeal was filed on 3 July 2019 by which time P was out of time for a few days in respect of the 14-day period for seeking leave to appeal against the Appeal Order, but he plainly adopted the wrong procedure. Even though P was not legally represented, upon receipt of the Judgment which was an adverse judgment, it was incumbent upon P to be jealous in taking prompt steps to ascertain the proper procedure and timeframe for appeal. But P’s supporting affirmation was silent on what prompt efforts he made to ascertain the appropriate approach and/or timeframe for appeal against the Appeal Order, and did not give explanation as to why he was mistaken about the proper procedure despite such efforts (if any).

15.  More importantly, P admitted he received the Registrar’s Directions in early August 2019 and approached solicitors to help him understand the contents of such directions. The reference in P’s supporting affirmation to the limitation of 2 pages for his written submissions to object to his Notice of Appeal being struck out clearly showed he was aware of the contents of the Registrar’s Directions. In such circumstances, P also should have been aware of the reminder in paragraph 2 of the Registrar’s Directions that the Appeal Order was an interlocutory decision that required leave to appeal. In fact, Kwan VP by written directions struck out P’s Notice of Appeal on 5 August 2019 on the basis that P had not obtained leave before he lodged such appeal, and the learned Vice-President further reminded P in writing on 15 August 2019 that his Notice of Appeal had already been struck out. There was no explanation from P as to why he did not promptly apply to seek leave to appeal out of time in early or mid-August 2019 (if not earlier), and only did so on 11 September 2019. This unexplained delay of over 3-4 weeks from early to mid-August 2019 to 11 September 2019 could not be said to be a short period when the prescribed period for seeking leave to appeal was merely 14 days.

16.  Given the inexcusable delay, I now turn to consider whether there were any meritorious grounds of appeal with a fair or real prospect of success. But no grounds of appeal were given either in the Leave Summons or in P’s supporting affirmation. P had not placed his Notice of Appeal dated 3 July 2019 in CACV305/2019 before this court. At the hearing on 26 September 2019, P submitted that he relied on the grounds he previously relied on to oppose the Summons. However, those grounds have been canvassed and discussed in the Judgment, and I was not persuaded by those grounds for reasons set out in the Judgment. P said he had nothing further to add as he could not afford legal representation. Whilst I have sympathy for P’s personal plight, he had not raised any arguable basis to say I have erred in the Judgment.

17.  In the circumstances, the intended appeal had no merits (let alone any strongly arguable case), and given the lack of satisfactory explanation for the delay, I have no hesitation in refusing extension of time for P to appeal against the Appeal Order. I therefore dismiss the Leave Summons.

18.  There is no reason why costs should not follow event. I therefore grant the following costs order nisi: (a) subject to (b) below, P do pay D costs of and occasioned by the Leave Summons to be taxed if not agreed, and (b) there be no order as to costs of and occasioned by the Letter.

19.  Should P require translation of this Decision into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Decision to him at the High Court Building at a mutually convenient time.