CHUNG SUET WAN v. CHUNG SUET HAN AND ANOTHER

DCCJ 5534/2020

[2025] HKDC 438

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5534 OF 2020

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DECISION

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Introduction and Applicable Principles

1.  This is an application by Summons dated 6 January 2025 (“the Summons”) by the Plaintiff (“P”) for leave to appeal against my decision dated 23 December 2024 (“the Decision”) refusing to grant extension of time to appeal against the Judgment handed down by me on 24 October 2024 (“the Judgment”) under O 58, r 2 of the Rules of the District Court, Cap 336H. For consistency and ease of reference, I shall continue to adopt the same terms and abbreviations as the Judgment and the Decision.

2.  Written submissions were lodged by P and Ds pursuant to my directions for paper disposal of P’s application.

3.  The test for granting leave to appeal to the Court of Appeal from a judgment, order or decision of a judge, as set out in s 63A(2) of the District Court Ordinance, Cap 336, is that: (a) the appeal has reasonable prospect of success; or (b) there is some other reason in the interest of justice why the appeal should be heard. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which does not need to be shown to be “probable”. See Hong Kong Civil Procedure 2025, Vol 1, §59/2A/4 and KNM v HTF (unrep) HCMP 288/2011, 7 September 2011 at §9.

4.  Where the intended appeal is an appeal against the exercise of discretion of the judge, the applicant would have to show that he has an arguable case with reasonable chance of success that the relevant decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, not merely the appellate court would prefer a solution which the judge had not chosen. See Hong Kong Civil Procedure 2025, Vol 1, §59/2A/4 and RK v YS (unrep) HCMP 1969/2012, 1 November 2012 at §6.

Discussion

5.  In P’s written submissions, P relied on 3 grounds to demonstrate that the appeal has reasonable prospect of success.

6.  Firstly, P argued that I failed to consider the following matters and therefore erred in holding P’s reasons for the delay was inexcusable because she had not made reasonable enquiries and taken prompt steps to ascertain the timeframe and procedure to appeal:

(1)  On 8^th November 2024, P was not fully explained the content of the Judgment nor time frame or procedures for appeal by her former counsel. Hence, it is otiose and/or impractical to seek further legal advice from them about the appeal procedure. In the circumstances it is plainly wrong to hold that P had the benefit of legal advice and representation from her former solicitors;

(2)  As a matter of fact, P immediately looked for another new legal representatives on the following day and P’s current solicitors were formally engaged on 15 November 2024;

(3)  Further, it is essential to note that it was not until 4 November 2024 that P was first notified of the Judgment by her former solicitors. By that time, 11 days had lapsed and it was abundantly clear that it was not P’s fault but her former solicitor’s fault. In reality, P was totally unaware of the date of the handing down of the Judgment;

(4)  The Summons for extension of time for leave to appeal was filed on 19 November 2024 which was within the deadline for appealing. The Notice of Appeal in respect of the Judgment was immediately filed upon my direction at the first hearing of the Summons. Hence it was not a case that P’s current solicitors took no active step to have the Notice of Appeal filed; and

(5)  In fact, it was reasonable and logical that P’s current solicitors can only give comprehensive legal advice and formulate the grounds of appeal unless and until a full set of court documents can be obtained which was so provided on 18 November 2024 so as to take further instructions and prepare the Notice of Appeal.

7.  There is no basis to say that I failed to take into account the above matters. These were all, more or less, set out in the Decision, §§6-7.

8.  Furthermore, this first ground simply repeated P’s stance at the hearing for leave to appeal out of time that the delay was not her fault but her former solicitor’s fault, and that she (and her current solicitors) had taken reasonable and prompt steps. Apart from asserting that I had erred in holding P’s reasons for delay was inexcusable, no errors have been pinpointed. In 秦錦釗 v 香港特別行政區 [2018] HKCA 167, at §8, Kwan JA (as she then was) held that, in light of the function of the Court of Appeal, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Instead of doing so, the appellant should focus on the first instance judge’s reasoning and pinpoint the error in respect thereof. See also 李智慧 v 昆士蘭保險 (香港) 有限公司 [2021] HKCA 984 per Chow JA at §11.

9.  Besides, even if P was not wholly to be blamed, it is well-established that the attempt to blame her former solicitors is not a good excuse for the delay: see eg KNM, §18 per Fok JA and Chiu Sin Chung v Yu Yan Yan Angela [1993] 1 HKLR 225 per Keith J at 229.

10.  As to my reference to the two cases in the Decision at §11, there can be no suggestion it was wrong for me to refer to those cases in support of the proposition that even a legally unrepresented litigant has a duty to make reasonable enquires and take prompt steps to ascertain the proper timeframe and procedure to appeal:

(1)  P submitted that the appeal was allowed in Tsui Yuen v Ho Tse Wai, Philip Li & Partners (A firm) [2019] HKCFI 2431: see [2019] HKCA 1416. However, Yuen JA (giving judgment for the Court of Appeal) granted leave to appeal because the view was taken that there were substantial merits which outweighed P’s delay (see §§29-31). The court did not overturn the finding that the delay was not wholly excusable nor was there any suggestion that the first instance judge had erred to hold that the plaintiff had a duty to make reasonable enquiry and act promptly; and

(2)  P further submitted that the delay in Wong Yuk Tung v Wong Po Ling and Another [2021] HKCFI 1267 was 2 years and 257 days and the plaintiff was prejudiced by the extension of time given his advanced age. The length of delay (see §14) and degree of prejudice (see §21) were separate grounds for the learned judge’s dismissal of the application to extend time for applying for leave to appeal. The court also was prepared to dismiss the application on the ground that the serious delay was inexcusable (see §15). It was in that context I relied on the learned judge’s observation that even a person not legally represented must comply with the same practice and procedures as other users of the court, and they should make all reasonable enquiries to ascertain the appropriate procedure. Of course, the application of the principles must always depend on the facts and circumstances of each case. The fact that the facts of that case are distinguishable from the present case does not demonstrate that I had erred to refer to that case.

11.  The first ground is therefore not reasonably arguable.

12.  Secondly, P submitted that I erred when considering the authority of Trident Engineering Co Ltd v Mansion Holdings Ltd & Another [2001] 1 HKLRD 783. It was submitted that I failed to thoroughly consider an informed assessment of the prospects of success of an appeal can only be made at a hearing equivalent to the hearing of the appeal itself so time should have been extended without further consideration of the merits. Again this ground merely repeated the submissions to me at the previous hearing (see the Decision at §19) and has not pinpointed any palpable errors.

13.  Apart from citing two cases, it is not demonstrated how I erred to hold that Trident Engineering Co Ltd did not laid down any rule set in stone that merits need not be considered and in any event, the circumstances of this case were not so exceptional that time ought to be extended without a consideration of the merits: see the Decision, §§20-21. The two further cases now relied upon by P are:

(1)  Unison Knitwear Ltd v Rich Easy Ltd [2001] 1 HKLRD 856 where Keith JA held in the circumstances of that case an informed assessment of the prospects of the success of any appeal can only be made at a hearing equivalent to the hearing of the appeal itself (see at 858G-J); and

(2)  Palata Investments Ltd v Burt and Sinfield Ltd and Others [1985] 1 WLR 942 at 948 where the English Court of Appeal held in that situation there was absolutely no need to go into the complex and time consuming question as to whether there was a good arguable case on appeal.

14.  Plainly, the above two cases do not demonstrate how I erred to find in the circumstances of this case, no lengthy and time consuming hearing is necessary. These two cases were plainly decided on the bases of their own facts and circumstances. In both cases, the application for extension of time to appeal made to the appellate court and not to the trial judge. They are distinguishable from the present case.

15.  The second ground also is not reasonably arguable.

16.  Thirdly, it was submitted that I did not fully consider the law in respect of appeal against decisions on question of fact. Again, apart from citing two decisions of the Court of Appeal: (1) Yu Pak Kan v Busy Firm Investment Limited [2023] HKCA 105 at §19; and (2) China Gold Finance Ltd v CIL Holdings Ltd (unrep) CACV 11/2015, 27 November 2015 at §§11-22; which set out trite principles concerning appeal against findings of fact, no palpable error in the Decision is identified.

17.  It was also submitted that there was no evidence to demonstrate that D2 had paid the mortgage despite the fact that he held 1/3 of the share of the Property and the terms of the Investment Agreement alleged by Ds were uncertain. It was submitted therefore I failed to view Ds’ evidence with great suspicion and I had misapprehended the facts and misunderstood the evidence.

18.  However, the lack of evidence to demonstrate that D2 had paid the mortgage and lack of certainty in the terms of the Investment Agreement alleged by D2 were never grounds of appeal raised in the NOA. Indeed, they were not even matters raised at the trial. As the passages relied upon by P in Yu Pak Kan and China Gold Finance Ltd above have emphasized, the appellate process is not designed for and it is a misuse of that process to place before the Court of Appeal submissions which should have been advanced by way of closing submissions of the trial after the judge has heard all the evidence.

19.  Besides, this third ground is plainly unarguable when nowhere in the Decision (in particular §§25-43, on the merits of the intended appeal) did I mention these two matters (as they were not raised) and therefore it cannot be said that I have erred in my Decision.

20.  For all these reasons, I would refuse leave to appeal to the Court of Appeal against the Decision as the appeal has no reasonable prospect of success. The Summons is hereby dismissed.

21.  Costs should follow the event. P should pay to Ds the costs of this application. Ds shall lodge and serve their Statement of Costs within 7 days from the handing down of this decision. P shall lodge and serve any objections within 3 days thereafter. There shall then be a summary assessment of Ds’ costs by me on paper.