CHEE FEI MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

CACV 219/2014 and
CACV 220/2014
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 219 OF 2014

(ON APPEAL FROM HCAL NO. 73 OF 2013)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2014

(ON APPEAL FROM HCAL NO. 110 OF 2013)

________________________

________________________

(Heard together)

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D E C I S I O N
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Hon Lam VP (giving the Decision of the Court):

1.  It is now accepted by the Applicants that the Notices of Appeal were served 8 days out of time[1] and extension of time is required for these appeals. A summons for extension of time had been issued by the Applicants on 6 January 2015. We would wish to take this opportunity to reiterate the importance of having a proper application for extension of time before the court. Appeals which are brought out of time without first obtaining extension of time are incompetent and such appeals could be struck out on this ground alone. Applications for extension of time are brought by way of separate proceedings. The practice in the registry has always been that they would be assigned as miscellaneous proceedings and to be listed accordingly. If extension is granted, the notice of appeal would be filed in a separate set of proceedings in the list of civil appeals. Against this background, we do not accept the submission of the Applicants that the summons is unnecessary.

2.  There is no dispute that the relevant principles governing the exercise of discretion in granting extension of time to appeal are set out in Secretary for Justice v Yaumatei Ferry Co Ltd [2001] 1 HKC 125, a decision cited by both parties.  It is not necessary for us to revisit those principles.  We agree that lack of prejudice on the part of the respondent is not sufficient.  One must have regard to other factors.  In the present context, the main disputes are whether the delay was excusable and whether there is any merit in the intended appeals.

3.  Notwithstanding the submissions of Mr Mok SC to the contrary, we are of the view that the delay is excusable.  Whilst those acting for the Applicants must bear the primary responsibility for complying the time limit in the rules, in the circumstances the error of judgment on the part of the solicitor for the Applicants was not as grave as the mistake of the solicitor in Secretary for Justice v Yaumatei Ferry Co Ltd, supra.  There is no clear authority on the calculation of the time limit for appeal in respect of a decision in a rolled-up hearing.  Mr Clancey had explained in his affirmation how the mistake on his part came about. We also accept Mr Harris’ submission that the application for legal aid inevitably prolonged the whole process and the Applicants and those representing him had acted promptly in making the necessary application for legal aid[2].

4.  As regards the merits of the appeals, having considered the submissions of counsel, we are not prepared to say at this stage that the appeals have no real prospect of success.  We said so particularly in respect of the arguments on the application of sections 104A and 104C of the Public Health and Municipal Services Ordinance Cap 132 to what Mr Harris described as static demonstration involving the display of roadside publicity materials during the course of such demonstration. 

5.  In the circumstances, we shall grant a retrospective extension of time to the Applicants for the service of the Notices of Appeal on 6 November 2014.  As we said, such Notices have indeed been served on that date.

6.  In accordance with the usual rule, the Applicants (as the party seeking the indulgence of the court) should pay the costs of the Respondent in this application in any event.    The Applicants’ own costs be taxed in accordance with the Legal Aid Taxation.