LEUNG HO SING AND OTHERS v. SHUM YIU TUNG AND OTHERS

CACV 108/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.108  OF 2006

(ON APPEAL FROM LDBM 153 OF 2005 )

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DECISION

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Hon. Tang V-P:

1.  I shall ask Madam Justice Yuen to give the first judgment.

Hon Yuen JA:

2.  On 18 July 2006 this court (Tang V-P and Yeung and Yuen JJA) dismissed the 6^th Applicant’s appeal from a decision of the Lands Tribunal.  Written reasons for judgment were handed down shortly afterwards on 21 July 2006.

3.  On 5 January 2007, more than 5 months after that judgment, the 6^th Applicant gave notice of its intended appeal to the Court of Final Appeal.  A Notice of Motion with proposed grounds of appeal was filed on 5 February 2007. 

4.  On 10 May 2007 counsel for the 6^th Applicant provided a skeleton submission which suggested a reformulation of the first ground of appeal.   However no question as such was formulated.  Before us  this morning, counsel for the 6^th Applicant said that the question(s) could be implied from his grounds of appeal.  He also attempted a formulation along the following lines:

“If a court of appeal follows another court of appeal,  especially a judgment containing a dissenting judgment, would it not be right for the Court of Final Appeal to look at the legislative intent and make an ultimate judgment for the public?”    

Mr Sui also suggested that this court lacked jurisdiction because the Incorporated Owners were in fact aware of the proceedings.

5.  In exercising our discretion, we have to consider the length of the delay, the reasonableness or otherwise of the excuses given for the delay and the merits of the intended appeal, in this case, an intended appeal to the Court of Final Appeal on the ground that there is a question of great general or public importance.

6.  In the present case, there was substantial delay, the time taken being more than 5 months when the time limited by the rules for applications for leave to appeal to the Court of Final Appeal is only 28 days.

7.  The reasons given for the delay were unacceptable.  First, it was    said that the 6^th Applicant, a limited company, had spent time   making applications to the court for leave so that it could be represented by its director.  The fact that a party had been making unsuccessful applications of that sort is not a good reason for delay. 

8.  Then it was said that it was not until 28 December 2006 that the 6^th Applicant became aware that the legal costs of the Respondents had been funded by the Incorporated Owners and that the Incorporated Owners  must have been aware of the proceedings all along.  Be that as it may, that is immaterial to the judgment.  The fact was that it was the 6^th Applicant (and others who have since dropped out)  who instituted proceedings but failed to make the Incorporated Owners  a party.  In the absence of the Incorporated Owners  and the other members of the Management Committee, the proceedings and the appeal were not competent.  It matters not to the judgment that the Incorporated Owners  were aware of the proceedings.  It certainly does not vitiate our judgment for “lack of jurisdiction” as Mr Sui argued. 

9.  Nor are there sufficient merits in the proposed grounds of appeal to persuade us that we should in the exercise of our discretion give leave to appeal out of time.  Initially the first ground of appeal was that this court was not bound by its previous judgment in Bright Hill because that was a majority decision. 

10.  Subsequently Mr Sui has reformulated that ground of appeal to the effect that this court was not bound by its previous judgment because (he says) “there is no rule of common law or statute that one court of appeal should follow that of another” .  That submission is plainly wrong.  This court is bound by its  previous judgments unless the exception of per incuriam applies.

11.  We do not understand Mr Sui to be submitting that Bright Hill was decided per incuriam but he says “such matter of great public importance as the interpretation of statute ought to be before the CFA to proclaim an interpretation in accordance with legislative intent”.  That is tantamount to saying that all cases involving the interpretation of a statute must perforce be decided by the Court of Final Appeal.  If that were intended, one would have expected that to have been made a discrete ground in the Hong Kong Court of Final Appeal Ordinance.  But in any event for the reasons set out in our judgment of 21 July 2006 (which we will not repeat here) we considered that the decision of the majority in Bright Hill was correct.  Nor is there any ground for suggesting that this court should not follow a Court of Appeal decision merely because it is a majority decision.

12.  In all the circumstances, there are no good grounds for exercising our discretion in favour of giving leave to appeal out of time, especially for an appeal that would require us to be satisfied that there is a question of great general or public importance, nor do we see any other reason to give leave.

13.  As for costs, the Respondents have asked for costs on the indemnity basis.  Costs on that basis had been given at the substantive hearing but of course that in itself is not a ground for giving indemnity costs here.

14.  As we have said, despite the lapse of time no proper question has been formulated for our consideration today, and we saw absolutely no merit in the 6^th Applicant’s application. 

15.  This court (Nazareth, Mortimer and Godfrey JJA) has in Lo Shiu Chun v Law Ying Chee Fogg CACV 130/1993, 14 April 1994 (unrep). held:

“The profession must appreciate that applications for leave to appeal to the Privy Council from decisions of this court will be very carefully scrutinised.  The Privy Council is not there to give unsuccessful litigants a third bite at the cherry, and practitioners must therefore ensure that the question of great general or public importance, or otherwise, which it is desired to submit for consideration by the Privy Council is properly formulated and set out in the application for leave to appeal. ...  In future, a stricter line as to the costs of unsuccessful applications of this sort is likely to be taken if the warnings we have given appear to have been disregarded”.       

The same considerations should apply to applications to the Court of Final Appeal.  We consider that the application today is an appropriate case to order costs on an indemnity basis as it is in any event hopeless.

Hon Tang V-P:

16. I agree.

Hon. Poon J:

17. I also agree.