ARNOLD IP TIN CHEE v. CHING HING CONSTRUCTION CO LTD AND ANOTHER

FAMV Nos 26 &27 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NOS 26 & 27 OF 2005 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NOS 183 & 184 OF 2003)

_____________________

_____________________

_____________________

DETERMINATION

_____________________

Mr Justice Bokhary PJ:

1.  Mr Henry Ip brought an action against an Ip family company, Ching Hing Construction Co. Ltd, for possession of a property which had served as a four-wing residence for the Ip family.  After Henry died his executors executed an assent vesting, or purporting to vest, the property in his son Mr Arnold Ip.  Arnold then brought an action against Ching Hing for possession of the property.  Hence two actions.

2.  The crucial issue in this litigation is an issue of fact.  It is whether Henry’s parents had made a gift of the property to him.  Otherwise he was a bare nominee with no beneficial interest.  The trial judge (then Deputy Judge Lam and now Lam J) found as a fact that there had been no gift to Henry.  This finding was affirmed by the Court of Appeal (Rogers VP, Le Pichon JA and Sakhrani J).

3.  Arnold wants to appeal to the Court of Final Appeal.  The Court of Appeal’s judgment is a final judgment.  And the property is of a value well in excess of $1 million, having been valued at $170 million as at 25 February 2005.  It is not in dispute that the proposed appeal comes within s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which provides for an appeal to us

“as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more;”

4.  But there is a procedural problem which Arnold faced when seeking leave from the Court of Appeal.  And he still faces it now, subject to an argument on his behalf to which we will come in a moment.  It is that he did not comply with the procedural requirement, laid down by s.24(2), of filing his notice of motion for leave “within 28 days of the judgment appealed from.” Since the Court of Appeal’s judgment was pronounced on 19 January 2005, the notice of motion for leave had to be filed by 16 February 2005.  But it was not filed until 22 February 2005.  This was because Arnold’s then junior counsel, who does not appear before us today, mistakenly believed that time ran from the sealing of the Court of Appeal’s order so that they had until 28 February to file their notice of motion for leave.  By reason of that mistaken belief, the notice of motion was 6 days late.

5.  Mr Warren Chan SC for Arnold argues that an application for leave to appeal to the Court of Final Appeal will be within time provided that it is made to the Court of Final Appeal within 28 days from the date on which leave was refused by the Court of Appeal.  It does not matter, Mr Chan’s argument runs, that the applicant had been late in applying to the Court of Appeal for leave.

6.  The time limits for applying for leave to appeal to the Court of Final Appeal in civil cases are dealt with in s.24 of the Court’s statute.  This section reads:

“	(1)	Applications to the Court of Appeal or the Court for leave to appeal shall be made by motion.
	(2)	Notice of a motion for the purpose of subsection (1) shall be filed within 28 days from the date of the judgment to be appealed from, and the applicant shall give the opposite party 7 days notice of his intended application and such notice may be given at any time during the period of 28 days.
	(3)	If an application for leave is refused by the Court of Appeal or in the case of an appeal from a determination, judgment or order of the Court of First Instance referred to in section 22(1)(c), an application may be made to the Court for leave and such application shall be made by motion.
	(4)	Notice of a motion for the purpose of subsection (3) shall be filed within 28 days from the date on which the application for leave is refused by the Court of Appeal, and the applicant shall give the opposite party 7 days notice of his intended application and that notice may be given at any time during the period of 28 days.
	(5)	The Court of Appeal or the Court, as the case may be, may, on such terms as it considers appropriate, by order extend the period within which the applicant is required or authorized by subsection (2) or (4) to do any act.
	(6)	The Court of Appeal or the Court, as the case may be, may extend any such period as is referred to in subsection (5) even though the application for extension is not made until after the expiration of that period.”

7.  Section 24(2) lays down an obligation to file a notice of motion for leave within 28 days from the date of the judgment to be appealed from and an obligation to give the opposite party 7 days’ notice of the intended application.  It says in terms that those are obligations “for the purpose of subsection (1)”.  And subsection (1) expressly covers both leave applications made to the Court of Appeal and leave applications made to the Court of Final Appeal itself.  So whether a leave application is being entertained by the Court of Appeal or by the Court of Final Appeal itself, the application will be out of time and need an extension unless a notice of motion for leave has been filed within 28 days of the date of the first instance judgment.

8.  Where the Court of Appeal refuses leave, an additional time limit arises.  The applicant, if he wishes in effect to renew his application by asking the Court of Final Appeal itself for leave, must file his notice of motion to do so within 28 days of the refusal of leave by the Court of Appeal.  This is an additional requirement, not an alternative one.  That is clear for the reasons given a moment ago in regard to subsections (1) and (2).  Those reasons, which are based on express wording, are supported by the commonsense of the matter.  These time limits, like all such time limits, are designed to give the successful party a measure of repose.  He would hardly have that if his opponent could take as long as he likes before applying to the Court of Appeal for leave, but then still be regarded as within time provided that he files a notice of motion returnable before the Court of Final Appeal itself within 28 days of refusal of leave by the Court of Appeal.  That would be absurd in any type of case, and especially so in the “appeal as of right” type of case where it would mean that there is an appeal as of right with no time limit at all.

9.  In fairness to Mr Chan, it should be pointed out that he presented that argument as to time because he felt duty-bound to do so.  That argument is set out in the written submissions which he helpfully provided, and he sensibly refrained from developing it at length in oral argument. 

10.  The delay concerned was due to mistaken legal advice.  And it has caused no prejudice to the other side.  Even so, an extension would not be appropriate if the proposed appeal is devoid of merit.  The Court of Appeal regarded it as devoid of merit.  Arnold now asks us to extend time.  It is submitted on his behalf that the appeal has merit.  This submission is outlined in Arnold’s notice of motion taken out before us for leave.

11.  Mr Chan concentrated on developing his submission that no judge could reasonably have found as the trial judge did in the present case.  The points skilfully but overboldly made in support of that submission are of the sort that can reasonably be urged upon a trial judge or even upon an intermediate appellate court invited to reverse a trial judge’s findings of fact.  But they are not of the sort that provide a reasonably arguable basis for reversing concurrent findings of fact, which are what Arnold faces.  Our practice in regard to concurrent findings of fact is set out in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318 at pp 333F – 338D.  There is no need to repeat here what was said there.  Arnold has not put forward anything that provides him with reasonable prospects of achieving a reversal of the concurrent findings of fact which he seeks to challenge.

12.  We refuse an extension ¾ and therefore leave ¾ on that basis.  In fairness to Arnold’s junior counsel, it should be said ¾ and we say ¾ that her mistake has lost him nothing of value and has, in truth, saved him from further wasted expense.

[Costs were not resisted by the applicant,
and were awarded to the respondents]