BOWLSTAR (HK) LTD v. HO KWAI PO AND ANOTHER t/a CONCORD ENTERPRISES

CACV 156/2006 AND 157/2006

(heard-together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 156 OF 2006

(On Appeal From HCA No. 4703 of 2003)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 157 OF 2006

(On Appeal From HCA No. 4704 of 2003)

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REASONS FOR DECISION

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Hon Cheung JA (giving the reasons of the Court):

1. The defendant asked for an extension of time to apply for leave to appeal to the Court of Final Appeal against our judgment of 9 February 2007.  They further asked for a stay of execution of our judgment.  We refused the applications.  These are our reasons :

Relevant factors

2. The Court has a discretion under section 24(5) of Hong Kong Court of Final Appeal Ordinance, Cap. 484, (‘the Ordinance’) to grant an extension of time for a party to apply for leave to appeal.  In considering whether extension of time should be given, the relevant factors are :

(1)	Length of the delay;
(2)	Reason for the delay;
(3)	Merits of the proposed appeal;
(4)	Prejudice to the other party.

Length of delay

3. Under section 24 of the Ordinance the notice of motion for leave to appeal must be filed within 28 days from the date of the judgment to be appealed from. 

4. As the judgment was given on 9 February 2007, the last day for the filing of the notice of motion should be 8 March 2007.  Instead the application was made only on 2 April 2007.  There was a delay of 25 days.  This is not a short delay. 

Reason for the delay

5. The explanation given for the delay was that Mr. Ho Kwai Po, one of the defendants, has been in ill health as he suffers from diabetes.  After he learnt of the result of the appeal his health deteriorated and was seriously ill.  He did not, until shortly before the present application, inform Mr. Ho Kwai Tat, his elder brother and co-defendant about the failure of the appeal.  He said that this was to avoid hurting his elder brother’s mental condition. 

6. The explanation given by the defendant does not justify the delay.  According to a letter dated 12 February 2007 from the defendant’s former solicitors, they had upon receiving the judgment on 9 January (sic) 2007 informed Mr. Ho Kwai Po and Mr. Ho Kwai Tat of the failure of the appeal.  The letter enclosed a copy of the judgment.  The solicitors further stated in the letter that after perusing the judgment they were of the view that the chance of success of a further appeal to the Court of Final Appeal is slim. 

7. With this background, at least one of the defendant was obviously aware of the right to appeal to the Court of Final Appeal.  Had they intended to appeal they ought to have known the time limit and made the application accordingly.  Mr. Ho Kwai Po made a conscious decision not to let his brother know about the result and not pursue the appeal within time.  This is not an excuse for the delay.

Merits of appeal

8. In any event, in considering the application this Court is entitled to consider the merits of the substantial appeal to the Court of Final Appeal and not just the merits of the intended application for leave to appeal.  In this case I am not satisfied that the defendant has shown that they have a meritorious appeal.  In respect of the grounds raised by the defendant, counsel for the defendant conceded that he was not aware that the defendant had provided Confirmations COR 729/03/1 and COR 729/03/2 to the plaintiff.  The judge made an express finding that Confirmation Order 729/03 was not provided to the plaintiff.  The defendant had not relied on the conduct of the judge as a ground of appeal before us.  The judge had also correctly applied the law.

Prejudice to the plaintiff

9. There must be a finality to litigation.  The plaintiff should not be deprived of enjoying the fruits of the judgment by a further appeal the merits of which have not been demonstrated. 

Conclusion

10. This Court will only grant an extension of time under section 24(5) of the Ordinance where exceptional or at least very good grounds are shown.  None is shown in this case.  For these reasons leave was refused. 

Stay of execution

11. The defendant has by a separate application issued on 3 July 2007 asked for stay of execution of our judgment.  We see no reason for granting the stay.

Costs

12. The defendant failed in their applications and they should bear the costs of the applications except the attendance of the plaintiff’s counsel before us.  As counsel did not lodge any written submission he was not called upon to address the Court.

13. The mere fact that solicitors do not have the right of audience in this appeal would not necessarily mean that counsel’s brief would be included in a party and party taxation as of right.  The attendance of counsel by itself cannot be a basis for allowing the fee.  Ultimately one has to consider all the circumstances to see if the fee is justified.  While the Practice Direction does not require a respondent to an appeal to put in a written submission, the use of written submission on appeal is now almost the rule rather than the exception.  The present case obviously requires the plaintiff to provide a written submission before the hearing.  This is to give assistance to the Court and to identify the issues for the defendant who is not legally represented.  In the absence of a written submission prepared by counsel in advance, we really cannot see the justification for counsel’s attendance on the date of the application.

14. Mr. Leung, counsel for the plaintiff, has very sensibly not challenged this view.  The plaintiff’s solicitors have also indicated through Mr. Leung that they would not charge the client counsel’s fee for attendance.