CHAN KAM CHUEN v. TSUEN WAN ADVENTIST HOSPITAL AND ANOTHER

FAMV000023/1998

FAMV No. 23 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 23 OF 1998 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 116 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Ching PJ :

1. On 8 January 1998, the applicant issued and served a writ of summons upon a hospital and a doctor. Time for service of their Defence was extended until 27 February 1998. The applicant claimed that the Defence had been neither filed nor served by that date and made an application for leave to enter judgment in default of Defence. This application was refused by a Master, a Judge of the Court of First Instance and the Court of Appeal. The Court of Appeal also refused the applicant leave to appeal to the Court of Final Appeal and hence the present application to this Committee.

2. The thrust of the applicant's arguments in the Court below was that the Defence had not been filed. Apparently he was told by a member of the staff at the Court of First Instance that the Defence had not been filed as at 2 March 1998. Investigation showed, however, that in fact it had been filed on 24 February 1998. The Defendants put forward evidence that it had been served by post on 26 February 1998, in accordance with the provisions of Order 65 rule 5(1)(b) but the applicant says that he never received it. Section 8 of the Interpretation and General Clauses Ordinance, Cap. 1, provides that unless the contrary is proved such service is deemed to have been effected at the time at which the document would be delivered in the ordinary course of post.

3. There is no merit in this application. Before us the applicant put forward a number of other matters none of which affect the issues which we have to determine. Nothing has been said which brings it within the terms of section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. Even if the Defence had not been received in time there can be no doubt but that time would have been extended. In any event the applicant was offered a copy of the Defence at the hearing of his appeal before the Judge of the Court of First instance, which he refused to accept. If the applicant has a real grievance against the hospital and the doctor, the sooner the case goes to trial the better. Interlocutory appeals merely delay the determination of the real issues. This application is dismissed with costs.

Representation: