CHAU CHEUK YIU v. POON KIT SANG AND OTHERS

HCMP 121/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 121 OF 2010

(ON AN INTENDED APPEAL FROM HCAL NO. 97 OF 2004)

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Hon Le Pichon JA:

1.  This was an application by the respondents for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. At the conclusion of the hearing leave was refused. The reasons appear below.

2.  On 2 February 2010 Rogers VP granted the applicant an extension of time to appeal from an order made by A Cheung J on 8 February 2007 in HCAL 97 of 2004.  The respondents applied to this court to set aside the order granting an extension of time.  The respondents’ application was dismissed for the Reasons for Judgment handed down on 13 August 2010.  The background facts are set out in the Reasons.

3.  The application to set aside was an appeal against an exercise of discretion by a single judge of this court. It is to be noted that Rogers VP exercised his discretion after hearing full argument at an inter partes hearing.  This court (differently constituted) dismissed the application on the basis that the high threshold required for such an application to succeed had not been met: it had not been shown that the Vice President was manifestly in error when he exercised his discretion to extend time.  The respondents now seek leave to appeal to the Court of Final Appeal from the judgment dismissing their setting aside application.

4.  The questions of great general or public importance said to arise are those set out in § 8 of the notice of motion:

“(1) Whether, in relation to an application for an extension of time to appeal based on the fact that a previous understanding of the law has subsequently been held to be incorrect, the court is required to find the existence of “exceptional circumstances” before it would be justified to allow the application, or may simply apply the approach established in Nantong Angang Garments Co Ltd without needing to find the existence of “exceptional circumstances” to justify the application.

(2) If the former, what sort of circumstances would be regarded as sufficiently exceptional to justify an application for an extension of time to appeal based on the fact that a previous understanding of the law has subsequently been held to be incorrect.”

5.  These questions simply do not arise. In the first place, there is no basis for the criticism that the Vice President failed to apply the Hung Chan Wa test (to which his attention had been drawn) when he exercised his discretion to extend time. Mr. Pao who appeared for the respondents, clarified that he is not maintaining that the Hung Chan Wa test requires the "exceptional circumstance(s)" to be identified and enumerated.

6.  Where the correct principle has been applied, the exercise of discretion in a particular case is not a matter of great general or public importance. Moreover, questions said to be of great general or public importance have to arise as questions of principle on the judgment. In my view, in the present case, they were, at best, at several removes from the judgment.

Hon Yuen JA:

7.  I agree.

Hon Kwan JA:

8.  I agree with the reasons for judgment of Le Pichon JA.