CHEUNG MAN YU v. LAU YUEN CHING AND OTHERS

HCMP 542/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 542 OF 2003

(ON APPEAL FROM HCMP 2421 OF 2000)

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J U D G M E N T

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Hon Ma JA:

1. On 17 May 2000, the Applicant instituted proceedings by originating summons against five Respondents seeking relief under order 57A of the Trustee Ordinance in relation to an unincorporated association alleged by him to be a charitable trust. This unincorporated association was joined as the 4th Respondent. The Secretary for Justice was joined as the 5th Respondent.

2. Affirmations having been filed by the Applicant and the 1st to 4th Respondents, these Respondents applied by summons dated 22 May 2002 to convert the originating summons proceedings into a writ action. This application was dismissed by Master Mary Yuen on 25 July 2002.

3. When the matter came before Deputy Judge Poon on 6 November 2002, the learned Judge made an order effectively converting the originating summons proceedings into an action as if commenced by writ. Directions were given as to the filing of pleadings, discovery and witness statements. The learned Judge made this order notwithstanding Master Yuen's order dated 25 July 2002, partly no doubt as a result of submissions made by counsel for the 1st to 4th Respondents that Master Yuen's order had not been a definitive one on the issue of conversion from the originating summons procedure to a writ action.

4. Deputy Judge Poon's order was perfected on 19 November 2002. By a Notice of Appeal dated 21 November 2002, the Applicant appealed the order and this was served on the 1st to 4th Respondents, we are told, later that day (although the indorsement as to service on the Notice of Appeal stated that service took place on 19 November 2002). The Notice of Appeal seems therefore to have been served within time.

5. Under Order 59 rule 5(1), the appeal ought to have been set down on 26 November 2002 (or 28 November 2002 if service of the Notice of Appeal took place on 21 November). It was not. When eventually on 15 January 2003, the Applicant's solicitors applied to the court to fix dates for the hearing of the appeal from Deputy Judge Poon's order, not surprisingly this was refused.

6. Here, matters went wrong even further. The Applicant's solicitors thought the reason why dates for the appeal could not be fixed was due to the Notice of Appeal having been filed in the general Registry of the Court rather than with the Registrar of Civil Appeals. By a letter dated 17 January 2003 from the Applicant's solicitors to the court, the misconception continued in that the Court was asked to treat the filing of the Notice of Appeal at the general Registry as proper lodging of that document with the Court.

7. The misconception was, of course, that the Applicant's solicitors took the view that their error lay in filing the Notice of Appeal with the wrong part of the Registry, whereas the omission was in failing to set down the appeal under Order 59 rule 5(1). This omission was pointed out to the Applicant's solicitors by the Court's reply dated 22 January 2003, in which express reference was made to Order 59 rule 5(1) and Hong Kong Civil Procedure 2002 Vol. I at 59/5/15.

8. One would have thought that matters could not have been made any clearer. However, the Applicant (or rather his legal advisers) then wrote to the solicitors for the 1st to 4th Respondents to seek their consent to file the Notice of Appeal out of time. When no consent was forthcoming, the Applicant then applied ex parte by summons dated 7 February 2003 to the Court of Appeal for leave to appeal against Deputy Judge Poon's order. The application was refused by Rogers VP on 12 February 2003.

9. The matter comes before us as a renewed application for extension of time to appeal purportedly pursuant to Order 59 rule 2A.

10. This application or renewal of application to leave to appeal out of time is misconceived for a number of reasons. First, the proper application, one would have thought that the Applicant should be making, is for extension of time to set down the appeal. This was what the Court had told the Applicant's solicitors in the said letter dated 22 January 2003. The Notice of Appeal had been served on time pursuant to Order 59 rule 4, but it had not been set down. Secondly, insofar as the present application is for leave to appeal from Deputy Judge Poon's order, no leave is in fact required to appeal. In truth, the application can therefore have been only for an extension of time. Thirdly, even if the Applicant's application was somehow proper, it should not have been made ex parte.

11. In the circumstances, for my part, this application should be dismissed.

Hon Yeung JA:

I agree with the judgment of Ma JA. The application is dismissed. We make no order as to costs.