NG AI KHENG JASMINE v. MASTER M YUEN AND ANOTHER

HCMP 1153/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1153 OF 2004

(ON AN INTENDED APPEAL FROM HCAL NO. 46 OF 2003)

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J U D G M E N T

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Hon Le Pichon JA:

1. This is an application for an extension of time to appeal the order of Chu J dated 8 March 2004 whereby the judge dismissed the applicant's application for leave to judicially review: (1) the decisions of the Director of Legal Aid ("the Director") refusing the applicant's application for legal aid and (2) the decision of Master M Yuen dismissing the applicant's appeal against the Director's above decisions.

2. An application had been made to Rogers VP but that had been dismissed on 14 May 2004. The applicant renewed her application for leave to appeal out of time before Cheung JA and A Cheung J on 2 June 2004. That application was adjourned to a date to be fixed so that the applicant could file an affirmation as to the circumstances in which she discovered the existence of a sealed order in HCAL 46/2003 and, at the same time, the Department of Justice would be asked about the service of the sealed copy of the order on the applicant.

3. On 2 June 2004, the Department responded to the court's inquiry to the effect that according to their records, the order was sealed on 11 March 2004 and was served on the applicant by ordinary post and by fax on 12 March 2004. Enclosed with their response were copies of their letter dated 12 March 2004 (which referred to a copy of the sealed order being enclosed with it) and an extract from the journal of the Department's fax machine evidencing that the letter dated 12 March 2004 and the order had been faxed twice on that day to the applicant's fax number recorded as 2658-9234. Although the first attempt failed, the second was successful. Moreover, the Department's Receipt & Dispatch Unit's records show that a letter addressed to the applicant at her address was sent out on 12 March 2004. This letter has never been returned undelivered to the Department.

4. At the hearing, the applicant confirmed that the fax number recorded above was her residential fax number. However, she sought to explain that sometimes her fax machine jams and her maid in attempting to deal with that might have switched off the machine causing the message to be deleted from its memory. Quite apart from the fact that the jamming of the fax machine and manoeuvres which cause its memory to be deleted are two different matters, there is no evidence before this court that the applicant's fax machine was malfunctioning on 12 March 2004.

5. As to the letter and enclosure which the Department stated had been sent to the applicant on 12 March 2004, the applicant referred to the manuscript record kept by the Department's R&D Unit and commented on the illegible handwriting, suggesting that the envelope containing the letter and sealed order was similarly handwritten and illegible. This submission was somewhat disingenuous. First, the addressee's name and address were typewritten as was the rest of the letter. It is therefore highly improbable that the name and address would not have been printed out on the envelope as well. In any event, the handwriting was not illegible.

6. In the light of that answer and given the information supplied by the Department together with the supporting documentation, were it necessary to make a finding as to service, I would have little difficulty in concluding that a copy of the sealed order had been served on the applicant.

7. In fact, neither the date of service of the sealed order nor the date on which the sealed order came to the applicant's notice is relevant to the reckoning of the period within which the appeal should have been brought. Under Order 53 rule 3(HK)(4), the time for appealing is 10 days 'after such order'. Order 59 governs such appeals. See Hong Kong Civil Procedure 2004 at 53/14/16. Under Order 59 rule 4(1)(a), the period runs from the date immediately following the date on which the order of the court below was sealed. For interlocutory appeals, the period is 14 days "except as otherwise provided by these rules". The 14-day period is thus subject to what is provided in Order 53 rule 3(HK)(4). Accordingly, the notice of appeal should have been served on or before Monday, 22 March 2004. Even if the period were 14 days, the applicant is still well out of time since she did not make her application for leave to appeal until 6 May 2004. On either view, it involved a delay of some 6 weeks.

8. The reasons as set out in the application for the delay are as follows:

"(1)	As I am acting in person, 'I' need sometime to study the judgements and to do research on the case (which include the means and merits).
(2)	I was very loaded with my work at the time when the judgement was handed down."

9. An extension of time for bringing an appeal must be applied for promptly. The factors taken into account include the length of the delay, the reasons therefore, the chances of the appeal succeeding if time is extended and the prejudice to the potential respondent if the application is granted. See generally Hong Kong Civil Procedure 2004 at 54/4/14.

10. In the present case, the delay of 6 weeks is lengthy and inexcusable. The reasons advanced are not such as would justify an extension of time to bring the appeal. I would add that, in my view, the appeal is devoid of merit and the prospect of the appeal succeeding is virtually nil. In these circumstances, the application for an extension of time must be refused.

Hon Cheung JA:

11. I agree.