RE NG SHIU FAN

FAMP No. 1 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2013

(ON APPEAL FROM CACV NO. 298 OF 2008)

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R U L I N G

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Mr Justice Chan PJ:

1.  I have decided to refuse extension of time. In exercising my discretion, I have applied the well established principles regarding extension of time.

2.  As I mentioned during the course of argument, there were 3 relevant periods of delay. The first period was from April 2010 when leave to appeal was granted by the Court of Appeal to April 2012 when legal aid was granted to the applicant. It had taken an exceptionally long period to obtain legal aid but I would accept that this was not due to the applicant’s fault. I would also agree with Mr Coleman SC (for the applicant) that in the light of the legal arguments involved in this case, it is unrealistic to expect the applicant to take up the case by himself without a lawyer.

3.  The second period was from April 2012 when he was granted legal aid to November 2012 when steps were taken to apply for extension of time. Although the period was not too long compared with the first period, I noticed that the matter was not actively pursued by those representing the applicant. Apart from obtaining the court files, only letters were written. I appreciate that part of the period was spent in waiting for replies and responses from the Official Receiver. However, I should think that a greater sense of urgency should have been displayed in view of the already long delay during the first period.

4.  The third period was from November 2012 when instructions were received to proceed with the matter to June 2013 when the Notice of Motion was filed. The delay was mainly caused by the procedural problems and this should not have happened. Although this was not due to the fault of the applicant, it is nevertheless something the court should take into account.

5.  While accepting that there was a long period of delay and some laxity to pursue the matter after legal aid was granted, I would not on delay alone refuse extension of time.

6.  On the merits of the appeal, I note that the Court of Appeal had granted leave to appeal on the as of right limb. However, the Vice President did consider it necessary for the applicant to have legal representation to proceed with the appeal. This was an indication that this is an important point which is arguable and worth arguing. Having read the judgments in the courts below, I agree that the issues are reasonably arguable. This is supported by the passages in the Hansard to which Mr Coleman had helpfully drawn my attention. The change in the relevant legislation supports his contention on arguability.

7.  What however concerns me most is the question of prejudice. For one reason or another, may be because the applicant was at the relevant time not legally represented and had no legal aid, there was no application for a stay of execution of the Court of Appeal’s judgment. As a result, the Official Receiver had, according to the proper procedure, made distribution of a substantial part of the applicant’s pension benefits to his creditors. The Official Receiver was of course acting under a statutory duty in the interest of the creditors. She was acting pursuant to an order of the court. At the time of the distribution, the applicant had not pursued his appeal for 20 months after having obtained leave to appeal. As a result of this failure on the part of the applicant, although there was a reasonable excuse for such failure, the Official Receiver simply could not wait indefinitely but had to perform her statutory duty. She had changed her position as a result of the applicant’s inaction. If the appeal should be successful, the question would arise as to whether she would be required to repay what had been distributed. It would be unfair if she were to be held liable to do so in the circumstances of this case. The consequence of all this was that she was prejudiced and third party rights would be adversely affected by the delay if the appeal was allowed to proceed and if it should be successful.

8.  Having considered all the relevant factors and performing a balancing exercise, I am not minded to extend time for the applicant to appeal. This would be unfortunate for the applicant who is not wholly to blame, but it is simply too late now to turn the clock back in the circumstances of this case.

[Arguments on costs]

9.  In the circumstances of this case, I would make no order as to costs and order that the applicant’s own costs be taxed according to the Legal Aid Regulations.