LAM ISLAND DEVELOPMENT CO LTD v. CHUNG PING KWAN AND ANOTHER

IN THE COURT OF APPEAL

 No. 66 of 1994
(Civil)

(On appeal from the High Court of Justice
Miscellaneous Proceedings No. 1570 of 1993)

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JUDGMENT

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Keith J. (giving the judgment of the Court) :

1.  On 26th October1994, we handed down our judgments in Civil Appeals Nos. 66 and 67 of 1994 (CA 66/94 and CA 67/94). We dismissed both the appeals.  The applicants, who were the unsuccessful Appellants, applied on 14th December for leave to appeal to the Privy Council.

2.  As Fuad V.-P. said in First Pacific Bank Ltd. v. Fung [1990] 1 HKLR 527 at p. 532D, “good practice requires that wherever Rule 2(b) [of the Rules set out in the Order in Council Regulating Appeals from the Court of Appeal to the Privy Council (‘the Rules’)] is relied upon, the question[s of law] should be set out in the application”. The questions which the present appeals raise had not been formulated, and we therefore adjourned the hearing for that to be done by counsel for the Applicants in CA 66/94.  The Applicant in CA 67/94 was unrepresented, and we could not have expected him to formulate the questions of law which his proposed appeal raises.

3.  However, a preliminary point was taken by the Respondents in CA 67/94.  They contended that the application for leave to appeal was not made in time.  Rule 3 of the Rules provides :

“Applications to the Court for leave to appeal shall be made by motion or petition within 14 days from the date of the judgment to be appealed from, and the Applicant should give the opposite party 7 days’ notice of his intended application and such notice may be given at any time during the said period of 14 days.”

The Applicant’s Notice of Application was filed in court on 9th November, i.e. within 14 days from the date of the judgment to be appealed from.  However, it was not served on the Respondents until the morning of 10th November.  The Respondents contended that :

(i) the 7 days’ notice required to be given to the Respondents had to be given during the 14 days from the date of the judgment,

(ii) the notice given to the Respondents on 10th November was not within the 14 days from the date of the judgment .

4.  We do not have to decide whether “may” in Rule 3 means “must”, because we are quite satisfied that the second of these propositions is incorrect.  Ever since Pugh v. Duke of Leeds (1777) 2 Cowp. 714, decided in the reign of Emperor Qianlong, the law has been that where a period of time from a particular event is prescribed as the period within which an act is to be done, the day of that event is to be excluded in the computation of the period, and the act has to be done by the last day of the period.  That principle has been accorded statutory recognition by section 71(1)(a) of the Interpretation and General Clauses Ordinance (Cap.1).  Accordingly, the last day of the period, when the day of the judgment - 26th October - has been excluded, was 10th November, and the notice, having been given on that date, was in time.  The application for leave to appeal in CA 67/94 was therefore in time.

5.  However, the application for leave to appeal in CA 66/94 is another matter altogether.  The Notice of Application was not filed in court until 11th November.  There is no doubt that it was filed out of time.  It is true that a Notice of Appeal to the Court of Appeal must be served not later than a specified number of days following the date on which the judgment appealed from “was sealed or otherwise perfected”, but Rule 3 of the Rules refers to the making of the application, not its service, and in any event it provides for time to run “from the date of the judgment”.

6.  The Applicants’ solicitor has filed an affirmation explaining why the time limit was not complied with.  His filing clerk attended the Registry on 10th November to file the Notice of Application.  For the reasons we have given in relation to CA 67/94, the filing of the Notice of Application on that date would have been in time.  However, the filing clerk got the impression that counsel’s diary had to be consulted before the Notice of Application could be filed.  It was for that reason that it was not filed on 10th November, but was purportedly filed on the following day when the Applicants’ solicitor discovered the error which his filing clerk had made.  There is no reason to doubt that account of what occurred.

7.  We have no doubt that in these circumstances we should exercise our power under Rule 3A(1) of the Rules to extend the period within which the Notice of Application was required to be filed.  Mistakes do happen occasionally, and our rules are sufficiently flexible to accommodate them.  The Applicants would suffer a serious injustice if their application could not be considered on its merits as a result of a mistake which has not prejudiced the Respondents in any way.  Since CA 66/94 raises exactly the same issues as CA 67/94, which was in time, the Respondents suffer no hardship by having to deal with CA 66/94 as well.  We therefore extend the Applicants’ time for filing the Notice of Application in CA 66/94 by the one day necessary to validate it.

8.  We turn to the merits of the application.  There is no evidence before the court as to the value of the land which the Applicants occupy or the value of the rights of occupation which they claim.  It is true that the solicitor for the Applicants in CA 66/94 values the land in excess of $500,000.00, but he does not profess to have any expertise in land valuation. Nor does he say upon whose opinion his belief is based (if it is not his own).  We suspect that the value of the land or the rights of occupation which the Applicants claim is in excess of $500,000.00, but that would simply be guesswork on our part.  Accordingly, the Applicants have not satisfied us that an appeal lies to the Privy Council as of right, though the Applicants in CA 66/94 have not sought to do so, because they need leave under Rule 2(b) in order to obtain legal aid to pursue the appeal.

9.  However, we have no doubt that the questions of law which the appeals raise are of great public importance.  We have ascertained that there are a number of pending actions for possession of land in the New Territories, in which the proceedings were issued prior to 30th June 1993, but which the Defendants claim are statute-barred because they have occupied the land for a continuous period of at least 20 years prior to the date of the commencement of the proceedings.

10.  We also have no doubt that the questions of law which the appeals raise ought to be considered by the Privy Council.  If the only issue had been whether Fairweather v. St. Marylebone Property Co. Ltd. [1963] AC 510 was correctly decided, we would have been inclined to leave to the Privy Council to decide whether leave should be granted.  But in our view, the proper construction of Section 8(1) of the Limitation Ordinance (Cap. 347), and of sections 4(1) and 4(4)(c) of the New Territories (Renewable Crown Leases) Ordinance (Cap. 152), are amongst the questions of law which should be submitted to the Privy Council for decision.  We have not had the questions of law formulated as crisply as we had hoped, but since we have decided, in the exercise of our discretion, that the Applicants should have leave under Rule 2(b) to appeal to the Privy Council, we do not propose to limit that leave to any particular questions of law.

11.  However, that leave is conditional upon the Appellants, within 3 months of today, providing security for the Respondents’ costs of the appeals - in the case of the Appellants in CA 66/94, in the sum of $100,000.00 between them, and in the case of the Appellant in CA 67/94, in the sum of $100,000.00, though if the Director of Legal Aid grants the Appellants legal aid, we assume that, in accordance with the usual practice, she would undertake to indemnify the Respondents for the taxed costs of the appeals if costs are awarded in their favour.  The leave we have granted is also conditional on the Appellants procuring the preparation of the Record and the despatch of it to England within 3 months of today.

12.  Finally, we grant the Appellants a stay of execution on the order for possession of the land occupied by them pending the determination of the appeals by the Privy Council.