THOMAS V. PREVENSLIK v. K.F. CHENG AND OTHERS

CACV 100/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 100 OF 1996

(ON APPEAL FROM HCA 216 OF 1996)

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court):

1. The applicant in this case appeared in person before another division of this Court. He had an action against three members of Hong Kong University. His appeal was dismissed and the order dismissing his appeal and allowing a cross-appeal by the 2nd and 3rd respondents was perfected by this Court on 19 December 1997. Since then the applicant seeks to apply to this Court on a number of grounds. The basis of his complaint is that, he says, there was an irregularity in the proceedings. He provided a bundle of documents to the court in support of his appeal which had been misplaced so the court used a bundle put in by the solicitors for the respondents.

2. Since then his application for the appeal decision to be reviewed, for the removal of the Vice President who sat on that appeal, and for an application for leave to appeal to the Court of Final Appeal has not been seriously pursued. The Clerk of Court wrote him a letter on 26 January 1998 asking him to appear at 11 a.m. on 6 February to fix a date for the hearing of his application. His response to that, however, was to put in a document on 5 February (which is before us) and not to attend on 6 February. He tells us that he went to Shanghai.

3. In fact, nothing further was heard from the applicant. So on 8 March 1999 a letter was sent to him asking him to show cause in those circumstances why his application dated 26 January 1998 - shortly after the court hearing - should not be dismissed. The basis of that letter is that if an applicant to this Court fails to pursue his application without good reason, it becomes clear that the applicant is not interested sufficiently in the proceedings to pursue them.

4. The applicant appears today saying that he was leaving it to the court to get in touch with him and leaving it to the court to find him a remedy for the perceived injustice which he has suffered. He seeks to rely on an article of the ICCPR and Article 39 of the Basic Law.

5. The problem with his application is first that this Court is functus officio. It cannot re-open the first two points after the order has been drawn up. There are other difficulties that face him. Primarily he has demonstrated that he does not seriously wish to pursue this matter, saying that he leaving it to the court to find him a remedy. One wonders if the court had not written the letter on 8 March how long this would have remained dormant. We have not had an answer to that question but it is an indication that in fact the applicant was not interested in pursuing his applications.

6. So far his application for leave to appeal to the Court of Final Appeal is concerned, he recognises that there is no basis upon which he could obtain leave under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). He has invited the Court to look at that provision and he recognises that he cannot ask this Court to give him leave. In those circumstances, it seems to us that there is only one order that we can properly make here, that is to strike out his application.

7. That is the order we make.