SIT KA YIN PRISCILLA v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

DCEO11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES CASE NO. 11 OF 1999

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BETWEEN

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D E C I S I O N

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1.  This case has a long and sad history.  I have already outlined the development of this case in my earlier judgments and decisions, and I do not want to repeat the same here.

2.  After the trial of this case and the handling down of the Judgment on 11 February 2010 (“the Judgment”) and the Decision on Costs on 27 October 2010 (“the Decision”), the Plaintiff applied for legal aid and the Court received the Memorandum of Application of Legal Aid on 11 November 2010.  The Plaintiff then took out a summons dated 23 December 2010, applying for leave to appeal against the Judgment, the Decision and the various costs orders and interlocutory orders made by H.H. Judge Mimmie Chan and myself.  The summons was originally fixed before myself on 3 March 2011.  However, prior to the hearing, the Plaintiff applied to adjourn the summons on the ground that she was waiting for the final Decision of the Director of Legal Aid as to whether to provide legal aid to her in respect of the intended appeal proceedings.  By that time, I granted the application and directed the Plaintiff to serve the papers in respect of the appeal proceedings on the Defendant.

3.  The application was therefore adjourned to today, i.e. 17 May 2011. Prior to this hearing, the Plaintiff wrote to the Court applying to further adjourn the summons based on the same reason, that is, she was waiting for the final Decision of the Director of Legal Aid in respect of her legal aid application.  Being on leave myself, my learned brother, H.H. Judge Poon, refused the application for adjournment unless with the consent of the Defendant.

4.  In the hearing today, Mr Kwong, who was the same solicitor acting for the Plaintiff in the trial though he was then with another solicitors’ firm, appeared on behalf of the Plaintiff.  Mr Kwong informs me that he only received instructions from the Plaintiff yesterday, and he was only instructed to make an application to adjourn the hearing today.  In support of his application, Mr Kwong provides the Court with a few medical chits of the Plaintiff, and he informs the Court that the Plaintiff is still waiting for the final Decision of the Director of Legal Aid.

5.  Taking into account the history of this case, I do not consider it fair to the Defendant to further adjourn the hearing.  This case has dragged on for a long time, and the application for leave to appeal has already been adjourned once.  Further, from the medical chits supplied by Mr Kwong, there is no evidence that the Plaintiff is suffering from any serious sickness, and the Plaintiff has not produced any documentary proof to show that the Director of Legal Aid is still now considering her application.  Based on these reasons, I refuse the Plaintiff’s application to further adjourn today’s hearing.

6.  Mr Kwong is not making any submission on the merits of the application. 

7.  Except with the Decision, the application for leave to appeal against the Judgment and all the other decisions and costs orders were made out of time.  It is trite law that an application for leave to appeal out of time has to be supported by an affidavit deposing as to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. Further, an extension of time must be applied promptly (see: Hong Kong Civil Procedure 2011, paragraph 59/4/10).

8.  No affidavit has been filed by the Plaintiff to provide an account of or an explanation for the delay in the launching of the application for leave to appeal in respect of the Judgment and all the previous costs orders and decisions on interlocutory applications.  Further, the Plaintiff has not put forward any argument or reasoning to support why these Judgment and decisions might be wrong.  In such circumstances, there is simply no basis for the Court to extend the time for the launching of the appeal against the Judgment and the various costs orders and decisions, and I therefore refuse to grant leave to appeal against these Judgment and decisions.

9.  So far as the Decision is concerned, the application for leave to appeal was made within time.  Despite that, the Plaintiff has not put forward any argument or reasoning to support why the Decision is wrong.  Further, as shown in the case of Choy Yee Chun v Bond Star Development [1997] HKLRD at 1327, the Court of Appeal has emphasised that the appellate court will not interfere with the exercise of the trial judge’s discretion in the award of costs, unless it be shown that the trial judge failed to exercise the discretion or exercised it upon a false principle or did not exercise it judicially.  The Court of Appeal has also stressed that it would be wrong for an appellate court to substitute its discretion for that of the trial judge, unless the appellate court is satisfied that the trial judge was plainly wrong.  I myself was well familiar with the facts and the history of this case, and I had also given detailed reasons as to why I made an adverse costs order against the Plaintiff in the Decision. As there is no merits in the intended appeal against the Decision, I also refuse the Plaintiff’s application for leave to appeal against the Decision.

10.  I now hear the parties’ submissions on the costs of this application. 

(Discussion re summons)

11.  The summons is dismissed.

(Discussion re costs and certificate for counsel)

12.  In making the decision on the issue of costs in respect of this summons, I am aware of the provisions under section 73B(3) and section 73C(3) of the District Court Ordinance.  However, I am of the view that this application for leave to appeal is totally without merits.  The Plaintiff has not provided any reason to justify why the application was made out of time, and also there is simply no argument or reasoning provided by the Plaintiff as to why she says that the previous Judgment or decisions are wrong.  In such circumstances and based on the same reasons given in respect of my earlier decisions on costs, I also award the costs of this summons to the Defendant.

13.  In respect of counsel’s certificate, I agree that since the Plaintiff has not provided any supporting affidavit or supporting argument, it may not be necessary to engage counsel to deal with this particular case.  However, there has been unusual development of the case and there has been considerable delay in the proceedings.  In such circumstances, Mr Leung, who is the counsel well familiar with the facts of the case, would be in a much better position to deal with the argument himself.  In such circumstances, I also consider it reasonable to engage counsel in respect of the present application.