CHOW SHUN YUNG v. WEH PIH STELLA

[English Translation – 英譯本]

DCCJ 2007/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

CIVIL ACTION NO. 2007 OF 2005

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REASONS FOR JUDGMENT

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1. On 12 December 2006, I handed down a written judgment allowing the defendant to appeal against the costs order in paragraph 24(4) of the judgment dated 4 September 2006 (hereinafter “order granting leave to appeal”).

2. Order 59 Rule 19(1) of the Rules of the High Court provides that the provisions under that rule shall apply to any appeal to the Court of Appeal from the District Court.

3. Order 59 Rules 19(2) and (3) of the Rules of the High Court provide as follows:

(2)  The notice of appeal must be served on the registrar of the District Court as well as on the party or parties required to be served under rule 3.
(3)  In the relation to the appeal ―

(a)    rule 4(1) shall have effect as if for the words ‘the date on which the judgment or order of the court below was sealed or otherwise perfected’ there were substituted the words ‘the date on which leave to appeal has been granted under section 63 of the District Court Ordinance (Cap 336)’.   

4. Order 59 Rule 3(5) of the Rules of the High Court provides that a notice of appeal must be served on all parties to the proceedings in the court below who are directly affected by the appeal.

5. Order 59 Rule 4(1) of the Rules of the High Court provides as follows:

Except as otherwise provided by these rules, every notice of appeal must be served under rule 3(5) not later than the expiration of the following period beginning on the date immediately following the date on which the judgment or order of the court below was sealed or otherwise perfected, that is to say ―

(a)  in the case of an appeal from an interlocutory order (not being such an order as is mentioned in sub-paragraph (b)) …, 14 days; …

6. Hence, had the defendant acted in accordance with the provisions in Order 59 of the Rules of the High Court, she should have served the notice of appeal within 14 days of the day following the date when the order granting leave to appeal was made.

7. However, it is apparent from the marginal notes to the defendant’s present application by summons that, rather than the said Order 59, she acted in accordance with Order 58 Rule 8 of the Rules of the District Court and the court’s inherent jurisdiction.  As a matter of fact, there is no Rule 8 under Order 58 of the Rules of the District Court.  I believe [Mr Yiu for the defendant also agreed] that this stemmed from a typographical error made on the part of the defendant’s solicitor and that it is Order 58 Rule 2(8) of the Rules of the District Court that the defendant relied on.  Rule 2(8) provides that:

Where leave to appeal is granted under paragraph (4), the notice of appeal must be served under Order 59, rule 3(5) of the Rules of the High Court (Cap 4 sub. leg. A), not later than 7 days after the date when leave is granted.

8. The above provision clearly states that the time limit for serving a notice of appeal is 7 days after the date when the order granting leave to appeal is made (not the date when the order granting leave to appeal is sealed or otherwise perfected).

9. In any event, regardless of whether the rule(s) applicable is/are Order 58 Rule 2(8) of the Rules of the District Court or Order 59 Rules 4 and 19 of the Rules of the High Court, the defendant has failed to serve the notice of appeal within 7 days after the date when the order granting leave to appeal was made, or within 14 days of the day following that date.  It is the defendant’s allegation (see below) that her solicitor came to know on 15 February 2007 that the order granting leave to appeal had been sealed but, in the one month or so thereafter, the defendant neither served a notice of appeal nor applied for an extension of time to serve a notice of appeal.  The defendant only delivered a draft notice of appeal to the plaintiff on 3 April 2007.

10. It was not until 4 April 2007 that the defendant took out the present summons, seeking leave to file and serve the notice of appeal after the expiry of the period for doing so.  It was also alleged that the above application was made pursuant to Order 58 of the Rules of the District Court and the court’s inherent jurisdiction.  

11. A 10^th Affidavit of Mr John Yiu was filed in support of the defendant’s application.  In short, Mr Yiu alleged that after I had made the order granting leave to appeal on 12 December 2006, the defendant’s solicitors sent the draft order granting leave to appeal to the court for approval on 27 December 2006.  Mr Yiu further said that the court failed to approve the draft order granting leave to appeal, but this case was undergoing a trial proper between the 4^th and 10^th of January 2007 before another District Judge (i.e. H.H. Judge Barbara Chan) and he had not taken note of it.  Subsequently, on 15 February 2007, Mr Yiu wrote to the court to enquire about the progress of the approval of the draft order granting leave to appeal.  He alleged that not only did my clerk refuse to receive the letter, but he also went as far as notifying the defendant’s solicitor on the afternoon of the same day that the draft order filed by the plaintiff had been approved.

12. The defendant’s solicitor was dissatisfied with this, taking the view that it was unfair to the defendant, and wrote a complaint letter to the Registrar of the District Court on 22 February 2007.  The District Court made a reply on 19 March 2007, stating that as the defendant’s solicitors did not, as was required under Order 42 Rule 5(5) of the Rules of the District Court, submit a draft order for the court’s approval within 7 days after the order granting leave to appeal was made, the order could be drafted by any opposite party affected by the order (in this case the plaintiff).  Hence, on 20 December 2006 (which was before the defendant’s solicitors filed their draft order), my clerk approved the draft order drawn up by the plaintiff in accordance with Order 42 Rule 5(5) of the Rules of the District Court.  The plaintiff proceeded to have the relevant court order sealed and filed on 2 January 2007.

13. As mentioned in Mr Yiu’s affidavit, the trial proper of this case took place before District Judge Chan between the 4^th and 10^th of January 2007.  Judgment was reserved at the conclusion of the trial and was not handed down until 23 February 2007.  The Registrar of the District Court also explained to the defendant’s solicitor in the reply that my clerk had omitted to inform the defendant’s solicitor immediately and return the defendant’s draft order after approving the plaintiff’s draft order because the file concerned was being used by another court for the trial.

14. The defendant’s solicitor was still dissatisfied.  They wrote back on 19 March 2007 expressing that the court clerk’s omission to inform them of the approval of the plaintiff’s draft order had resulted in unfairness to the defendant.

15. Mr Yiu asserted in his affidavit that “for the above reasons”, the court should grant leave to the defendant to extend the time for filing and serving on the plaintiff the notice of appeal.

16. As mentioned above, Order 58 Rule 2(8) of the Rules of the District Court, which the defendant allegedly relied on, provides that the notice of appeal must be served not later than 7 days after the date when the order granting leave to appeal is made (and not the date when the order granting leave to appeal is sealed).  Even if the defendant had acted in accordance with Order 59 Rules 19 and 4 of the Rules of the High Court, she should have served the notice of appeal within 14 days of the day following the date when the order granting leave to appeal was made.  For this reason, issues such as the time of the sealing of the order granting leave to appeal, whether the court approved the plaintiff’s or the defendant’s draft order and/or whether the court clerk had informed the defendant’s solicitor as soon as possible of the approval of the plaintiff’s draft order, have literally nothing to do with the time prescribed in Order 58 Rule 2(8) of the Rules of the District Court and/or Order 59 Rules 19 and 4 of the Rules of the High Court.  I wish to make it clear that this judgment only deals with the defendant’s present application and does not concern the defendant’s complaint about the approval of the order.

17. Even assuming that the defendant’s above explanation is valid, the time limit for serving a notice of appeal — whether it is to be computed in accordance with Order 58 Rule 2(8) of the Rules of the District Court or Order 59 Rules 19 and 4 of the Rules of the High Court — has indeed expired.  In the circumstance, I am of the view that the District Court no longer has jurisdiction to deal with the present application.

18. The present application is said to be made pursuant to Order 58 Rule 2(8) of the Rules of the District Court and the court’s inherent jurisdiction.  However, Order 58 Rule 2(8) of the Rules of the District Court only prescribes the time for serving a notice of appeal; it does not expressly empowers the District Court to extend such period.  Despite the fact that the District Court has inherent jurisdiction which includes the power to prevent the abuse of process (see Ng Yat Chi v Max Share Limited & ors (2005) 8 HKCFAR 1, 45) and to regulate the procedures of court hearings without prejudice to the legislations and rules laid down by statute. (see Ho Lan Fong v Lam Gook [2004] 3 HKLRD 47, 57-58 and 61). Mr Yiu has not explained how the District Court, as an inferior court, could have inherent jurisdiction beyond the ambit of the legislations and rules to extend the period under Order 58 Rule 2(8) of the Rules of the District Court or Order 59 Rules 19 and 4 of the Rules of the High Court.

19. In my view, once the time prescribed in the above rules for serving a notice of appeal has expired, only the Court of Appeal or a single judge has the power to extend such period pursuant to Order 3 Rule 5 and/or Order 59 Rule 15 of the Rules of the High Court.

20. Order 59 Rule 15 of the Rules of the High Court provides that:                

Without prejudice to the power of the Court of Appeal or a single judge under Order 3, rule 5, to extend or abridge the time prescribed by any provision of this Order, the period for serving notice of appeal under rule 4 or making application ex parte under rule 14(3) may be extended or abridged by the court below on application made before the expiration of that period.

21. In the present case, no matter what the reason is and whether such reason is valid, the undeniable fact is that the time for serving the notice of appeal under Order 59 Rules 4 and 19 of the Rules of the High Court has expired.  According to the above provisions, the court below (in this case the District Court) can only deal with an application for an extension of time before the expiration of the prescribed period.  Apart from a general power to extend time under Order 3 Rule 5, the Rules of the District Court do not provide for the extension of time for serving a notice of appeal; furthermore, where the relevant period has expired, the power under Order 3 Rule 5 is, by virtue of Order 59 Rule 15 of the Rules of the High Court, vested in the Court of Appeal or a single judge.

22. In my view, as the time prescribed for serving the notice of appeal under the Rules of the District Court and the Rules of the High Court has expired, the express provisions in the Rules of the High Court are applicable.  It follows that the defendant should make this application before the Court of Appeal or a single judge rather than the District Court.

23. As a matter of fact, the above legal analysis and conclusion are the same as those I made in paragraphs 23 and 86 to 91 of my written judgment dated 19 March 2007 in Ng Jack Fong, the sole executor of the Estate of Ng Li Man Kuen, the deceased v Ng Chan Ning DCCJ 2830/2005 (unreported).

24. In light of the above legal analysis, Mr Yiu applied to withdraw the present application by summons during the hearing with costs to the plaintiff.  The plaintiff had no objection thereto.  I therefore allowed the defendant to withdraw the present application during the hearing and ordered the defendant to pay costs of the present application (including the hearing on 2 May 2007) to the plaintiff, to be taxed if not agreed.