TO WAI SING v. TO HUNG TAI AND ANOTHER

CACV 48/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2014

(ON APPEAL FROM HCMP 533 OF 2011)

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DECISION
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Hon Cheung JA (giving Decision of the Court) :

1.  By a document entitled Application for leave to appeal dated 24 June 2015 the 1^st defendant applied for leave to appeal to the Court of Final Appeal against our judgment of 5 August 2014. The plaintiff opposed the application. We will now deal with the 1^st defendant’s application on paper.

2.  Application to this Court for leave to appeal to the Court of Final Appeal should be made by motion within 28 days from the date of the judgment : sections 24(1) and (2) of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’) (Cap. 484).  The present application was made more than nine months after the deadline, namely, 2 September 2014.

3.  The 1^st defendant in his affirmation explained the delay as follows :

‘ 2. After the Judgment of the Court of Appeal was handed down on 5/8/2014, I instructed a new solicitors firm to act for me regarding legal aid for my application for leave. I was not familiar with the steps and the solicitor told me that the leave can be filed after the question of legal aid has been finally concluded.

3. Later another solicitors firm acting for Legal Aid Council took over the legal aid matter for a Council Certificate, which was issued on 5/5/2015.  Then on 10/6/2015 Legal Aid Council informed me that no further legal aid would be available to me.  I have no documents in my possession and am retrieving them from former solicitors.  If required, I will file further detailed affirmation with exhibits to explain the whole matter more specifically.  I apologize to the Court for having no documents yet.

4. I issued a Notice of Intended Application for Leave to Appeal to the Respondent on 15/6/2015 in person.’

4.  According to the Court record, the Court received a memorandum of notification of an application for legal aid dated 21 August 2014 in respect of the 1^st defendant’s application for legal aid to appeal against our judgment.

5.  On 14 October 2014, the Court received another memorandum notifying the Court that the 1^st defendant’s application for legal aid had been refused.

6.  The 1^st defendant’s duty to observe the time requirement under the Ordinance is clearly independent of his application for legal aid.  His application for legal aid only means that he wishes to be represented by a lawyer.  Surely it cannot be right for him to say that until he found a lawyer, he did not have to observe the time limit imposed by the rules.  Irrespective of whether an erroneous legal advice had been given, the 1^st defendant’s application for legal aid cannot be a reasonable excuse for the delay for applying for leave within time.  We are not satisfied with the explanation given by the 1^st defendant on the delay.

7.  The 1^st defendant relied on both limbs of section 22(1)(b) of the Ordinance.  In respect of the great general or public importance ground, the 1^st defendant relied on the following two questions :

‘ (1) On the basis of the Plaintiff’s own evidence that licence for the 1^st Defendant to stay on the disputed land was revoked in 1997 and the undisputed fact that the 1^st Defendant still stayed on the disputed land until the day of trial, whether as a matter of law, possession adverse to the title of the registered owner still occurred even at the face of the registered owner who had knowledge but took no action?

(2) On the same basis aforesaid, but that at the same moment of revocation of the licence, the 1^st Defendant offered to purchase the disputed land but rejected, whether as a matter of law, would such an offer defeat completely, any intention of adversity throughout the entire period of possession?’

8.  As we had stated in our judgment, the 1^st defendant had failed to establish that he had been in exclusive possession of the Land.  Based on this factual foundation these two questions are simply not engaged.

9.  The 1^st defendant framed the ‘or otherwise’ ground as follows :

‘ 2. Or otherwise, Leave to appeal ought to be granted because of miscarriage of justice since substantial and grave injustice had been done to the Applicant, i.e. the 1^st Defendant at trial. Particulars :-

(a) Counsel for the 1^st Defendant was handicapped throughout the trial due to the harsh approach of the Judge and Counsel failed to conduct powerful cross-examination and to make fearless submission, as a result, the 1^st Defendant had no fair trial.

(b) The Judge acted in a manner over-aggressively (e.g. conducted cross-examination of the 1^st Defendant and then asked Plaintiff’s Counsel “do you learn something”) which gave an impression of bias, and can be seen as no fair trial for the 1^st Defendant.’

10.  The 1^st defendant who now accused his former counsel to have failed in her duty in properly representing him at trial chose to instruct the same counsel for his appeal.  Having done so, the 1^st defendant cannot now turn around and contend that he did not have a fair trial.  Such allegation should have been made, if at all, at the time of the appeal.  While we disagreed with the submission of counsel, we detected no incompetence on her part to fully advance the 1^st defendant’s case.  It was the 1^st defendant who chose not to reveal his actual abode before the trial judge.

11.  Bias by the trial judge was not relied upon by counsel as a ground of appeal and in our view the ‘or otherwise’ ground is not reasonably arguable.

12.  Accordingly the application is refused with costs to the plaintiff which we assess at $14,100.