Miss LEUNG SO HUNG SIEM v. Mr CARSON WEN AND OTHERS

HCA 121/2017

[2019] HKCFI 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

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D E C I S I O N

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1.  On 16 July 2018 I heard and determined an appeal brought by the plaintiff against an order made by Master Lui on 26 April 2018 by which the Master struck out the writ and statement of claim. In the written reasons for dismissing the plaintiff’s appeal I recorded that the Notice of Appeal from the Master, which was filed on 23 May 2018, was out of time. I recorded also that no explanation for the delay in making the application had been put in evidence, and that the plaintiff had been made aware in other circumstances of the need to comply with time limits in court proceedings.

2.  Having heard submissions from the plaintiff as to the proposedappeal, I declined to extend time for that appeal.  I also concluded that there was no merit in the proposed appeal and the appeal was dismissed.

3.  On 4 October 2018 the plaintiff served a notice of appeal seeking to appeal against the decision of 16 July 2018, and the Court of Appeal consequently gave consideration to the question as to whether leave to appeal was required; see [2019] HKCA 94; [2019] HKEC 178.  The decision made on 16 July 2018 being an interlocutory order, leave to appeal was required: see section 14AA of the High Court Ordinance and the judgment of the Court of Appeal.  No such leave to appeal having been sought or obtained, the appeal was struck out and dismissed by the Court of Appeal on 8 January 2019.

4.  On 31 January 2019, the plaintiff filed her summons seeking leave “out of time” under section 14AA.  Under that section:

“ (4) Leave to appeal for the purpose of subsection (1) shall notbe granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

5.  Directions were given for an exchange of submissions on the summons with appropriate evidence in support, and providing for the application to be dealt with without a hearing.  Submissions and evidence were exchanged in accordance with the timetable given in those directions.

6.  When an appeal against an interlocutory order is brought within time it is necessary for the court considering the grant of leave to consider the factors prescribed in section 14AA of the High Court Ordinance; namely the prospects of success of the proposed appeal and, if appropriate,whether some other reason exists which, in the interests of justice, supportsleave being granted.  See for example SMSE v KL [2009] 4 HKLRD 125 at [17]. It is trite that the grant or refusal of leave (when the time limits have been complied with) is a matter of discretion, and that therefore circumstances may militate against the grant of leave even when the requirements of section 14AA have been met: see for example Hong Kong Telecommunications (HKT) Ltd v Secretary for Commerce and Economic Development [2018] HKCFI 2385; [2018] HKEC 3089.

7.  Order 59, rule 2B provides that an application for leave to appeal against an interlocutory judgement or order is to be made within 14 days from the date of the relevant judgement or order.  More precisely, the rule provides that such an application “may only be made” within that time period.  The power to extend time under Order 3, rule 5(1) or (2) “should not apply to an application for leave to appeal”: see Hong Kong Civil Procedure 2019, 59/2B/2.

8.  As is acknowledged by the plaintiff’s summons the application which is made for leave to appeal is one which is made out of time.  The plaintiff is acting in person, and has pursued, in error, an appeal before the Court of Appeal without leave.  No other factors appear in evidenceto explain the lengthy lapse of time between the decision given in July 2018 and the summons being taken out in January 2019.  That combination of circumstances does not, in my judgement, provide a basis upon which the requirements of Order 59, rule 2B can be avoided by the plaintiff.  In my judgement leave cannot be granted for that reason. 

9.  Further, having considered the application and the evidence relied on, there is no discernible prospect of the plaintiff meting the requirements of section 14AA.  Leaving to one side the repeated failures to comply with time limits the underlying claim which the plaintiff seeks to bring, at least so far as is contained in the Statement of Claim simply discloses no cause of action.  The proposed appeal, in my judgement has no prospect of success, nor is there any other reason why the appeal should be heard.

10.  For the above reasons the plaintiff's application for leave to appeal is dismissed, with costs to the defendants.