THE GOVERNMENT OF HKSAR v. WAI HUNG STATIONERY CO AND OTHERS

BETWEEN

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J U D G M E N T

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Leong, J.A. :

1. On 24th June 1997 the appellants (plaintiffs) filed a writ of summons against the respondents (defendants), to wit the Government of the Hong Kong Special Administrative Region, the Department of Justice, the Commissioner of Customs and Excise and the Hong Kong Police Force. The writ was indorsed with a claim which reads, "Impropriety and unfairness in management. Claim for $30,700,000. "

2. On 16th July 1997 the respondents took out a summons to strike out the statement of claim filed by the appellants in June 1997 on the ground that it disclosed no reasonable cause of action or information which could constitute a cause of action, or it was scandalous, frivolous or vexatious, or it may prejudice, embarrass or delay the fair trial of the action, or it was otherwise an abuse of the process of the court. The respondents also asked for an order that the action be dismissed.

3. The summons was heard in chambers on 25th July 1997 before Master Chu who, in the end, struck out the appellants' statement of claim and dismissed the action.

4. Subsequently on 28th July 1997 the appellants lodged an appeal to the Court of First Instance of the High Court by issuing a notice of appeal against the order that the action be dismissed, on the grounds that the hearing before the Master in chambers was conducted in English, therefore the appellants did not know what was said, and that the Master neither gave any reply to the statements given by the appellants nor gave any assistance to the appellants in understanding the case.

5. The appeal was heard before Deputy Judge Wong in the Court of First Instance on 22nd September 1997. Upon hearing the arguments and statements made by both parties, the learned judge found that the writ did not specify any cause of action and there was no cause of action in the documents or any of the bundles produced by the appellants apart from the claim for the return of the copier. This might be a cause of action, but it was impossible for the appellants to lodge any claim for the copier as it was barred by the statutory time limitation. It was pointed out by the Court that the experience of the appellants as revealed in the documents indicated that the appellants might have been aggrieved but that could not constitute a cause of action. The appeal was thus dismissed.

6. The appellants further lodged an appeal to the Court of Appeal on 15th October 1997 by issuing a notice of appeal against the judgment given by the learned judge of the Court of First Instance. This is the gist of the grounds of appeal specified in the notice of appeal: The (first) appellant alleged that his action had been dismissed before a formal trial was conducted and that such process deprived him of his right to resort to the law. Furthermore, he had never received any defence or notice of trial date from the court after he filed the claim. On the contrary, the respondents obtained a court order to strike out his statement of claim and dismiss his action. He was prejudiced as a result of such unfair treatment. He also alleged that in those cases in which he was involved, he had been unlawfully arrested and assaulted and injuries to his body and damage to his property including the damage to his copier were caused. He did not get a fair judgment or reasonable compensation.

7. Now the respondents apply to the Court of Appeal by way of a summons for an order that the appellants' notice of appeal be struck out on three grounds:

(1) the appellants did not serve the notice of appeal on the respondents within the time limit,

(2) the appellants did not specify on the notice of appeal the grounds of appeal or the order which the appellants ask the Court of Appeal to make

(3) the appeal is frivolous, vexatious or an abuse of the process of the court.

8. The application was objected by the appellants who stated the grounds of objection in writing and at the time of the hearing the (first) appellant made a verbal supplement to this Court. Nevertheless, all his statements are no more than a repetition of his complaints mentioned in the notice of appeal and the allegations that he should have the right to counter-claim the law enforcers involved in the case of TWC83/97 in which he was acquitted; that the government not only rendered no assistance to him, but also delayed in processing and unfairly handled his complaints thereby causing disruption to his family and his two sons to go astray, and he hence filed the claim; and that it is unfair to him that his case having been dismissed and again, the respondents now even attempt to strike out his appeal before it can be heard.  He asks for an order by the Court to stop the government from causing damages to him.

9. No explanation whatsoever was given in the statements made by the appellants as to why the notice of appeal was served out of time.

10. Order 59 of The Rules of the Supreme Court provides the procedure in respect of appeals to the Court of Appeal. There are specific provisions on the contents of notice of appeal in Rule 3(2) and on service of notice of appeal in Rule 4. The relevant parts are as follows:

"3.   Notice of appeal

(1) …

(2) Notice of appeal may be given either in respect of the whole or in respect of any specified part of the judgment or order of the court below; and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make.

4. Time for appealing

(1) 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 subparagraph (b) ) and in the case of an appeal from a judgment or order given or made under Order 14 or Order 86, 14 days;

(b)    … ”

11. The learned judge of the Court of First Instance dismissed the appeal on 22nd September 1997 and his judgment was sealed and perfected on 25th September 1997. The appellants must serve the notice of appeal on the respondents, according to the rules, within 14 days of 25th September, namely, on or before 9th October. The notice of appeal, however, was served by the appellants on 15th October which is out of time and is irregular. The appellants did not give a satisfactory explanation as to why the notice was served out of time. Furthermore the appellants did not specify in the notice of appeal any grounds of appeal whilst the allegations contained therein cannot constitute any grounds for appeal at all.  We will not consider extending the time limit so as to let the appellants serve the notice of appeal on the respondents in compliance with the rules. In any event the notice of appeal is incomplete and without statutory qualification. For this reason alone we can grant the application of the respondents. We agree with the observations made by Deputy Judge Wong that the appellants filed their claim because they were truly of the view that they had been aggrieved or unfairly treated. Nevertheless, it is the exclusive right of the Secretary for Justice to decide whether to prosecute or not and the Court cannot interfere. Besides, as regards the appellants' claim for compensation on the ground that the incidents have allegedly affected their family and the character of their sons, it cannot be established in law. We sympathize with the (first) appellant who made the errors due to his limited knowledge in law and the proceedings.

12. For the above reasons, we make an order in terms of the respondents' application that the appellants' notice of appeal be struck out with costs of this application to the respondents.