LEUNG SO HUNG SIEM v. CARSON WEN AND OTHERS

CACV 358/2018

[2019] HKCA 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 358 OF 2018

(ON APPEAL FROM HCA 121/2017)

____________________________

____________________________

__________________

J U D G M E N T

__________________

Hon Lam VP (giving the Judgment of the Court):

1.  The Plaintiff commenced this action by issuing the writ on 16 January 2017. On 7 February 2017, she amended the writ and the statement of claim.

2.  By a summons of 10 March 2017, the 3^rd Defendant applied to strike out the claim against it.  The substantive hearing of that application took place on 21 July 2017 before Master J Wong.  After hearing submissions, the master ordered the claim against the 3^rd Defendant to be struck out.  He also ordered the Plaintiff to pay the costs of the 3^rd Defendant, which was summarily assessed at $114,945. 

3.  The Plaintiff did not bring any appeal against that decision within the appeal period prescribed by the rules. She only lodged a notice of appeal in respect of that decision on 27 November 2017.  By then the time limit for appeal, which is 14 days from date of the relevant order (see Order 58 Rule 1(3) of the Rules of the High Court), had long expired.  The Plaintiff needed to obtain an extension of time to bring such appeal.

4.  On 27 February 2018, Deputy High Court Judge K Yeung [“the Judge”] directed that the Plaintiff should make an application for extension of time and that such application shall be heard at the same time of the hearing of the appeal.

5.  The Judge heard the matter on 5 June 2018.  On 3 July 2018, the Judge handed down his decision. He refused to grant extension of time to the Plaintiff to bring the appeal against the master’s order.  He also ordered her to pay the costs of the 3^rd Defendant which he fixed summarily at $111,752.

6.  The Plaintiff issued the Notice of Appeal in the present appeal on 31 July 2018.  In the certificate of service, she stated that the notice of appeal was served on the 3^rd Defendant by registered mail on 31 July 2018.

7.  She did not apply for leave to appeal before issuing or serving the notice of appeal.

8.  On 11 March 2019, the Registrar of Civil Appeals drew attention to the lack of leave to appeal and referred to a judgment of the Court of Appeal in Leung So Hung Siem v Carson Wen [2019] HKCA 94 in which it was held that leave to appeal is required for an appeal against a refusal to extend time.  The Court said the following at [9] to [13]:  

“ In Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440, it was held that the refusal to grant an extension of time for an application for judicial review to be made is an interlocutory decision, the appeal against which is subject to the requirement of leave under Section 14AA.

Similar holdings can be found in respect of refusal of extension of time in other contexts, see Lo King Yeung v Eddie Chu Hoi Dick [2017] 4 HKLRD 723 (Au J); CAMP 18 and 19/ 2017, 6 Nov 2017 (CA); Astro Nusantara International BV v PT Ayunda Prima Mitra (No 2) [2016] 1 HKLRD 591; China Metal Recycling (Holdings) Ltd v Chun Chi Wai HCA 1412/2013, 6 May 2016.

Order 58 Rule 1(3) makes it clear that an appeal against a decision of a master cannot be brought beyond the prescribed 14-day time limit from the date of that decision unless the Court of First Instance otherwise orders. Thus, like the situation in bringing judicial review out of time, the order for allowing such an appeal to be brought out of time is a prerequisite to a proper appeal to be entertained.

Hence, we are of the view that the decision of the Recorder in refusing to grant an extension of time is an interlocutory decision. Leave has to be obtained under Section 14AA before the appeal can be brought.

As the Plaintiff has not obtained such leave and she did not make any application for the same, the present appeal is incompetent, see Fok Hing (HK) Trading Ltd v Gunawan-Indra CACV 74 of 2014, 4 July 2014; Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440.”

9.  The Registrar of Civil Appeals directed the Plaintiff to lodge written submissions if she objected to the appeal being struck out for want of Section 14AA leave.

10.  The Plaintiff lodged her submissions on 27 March 2019.  She contended that Section 14AA leave is not required since the subject decision comes within the scope of a “Section 14A(b)” as an order for striking out an action.  She also said that she was out of time due to a decision of Recorder Houghton SC on 5 September 2018 “with orders written as granted in July 16, 2018”.

11.  After reading those submissions, the Court listed the appeal for hearing on 8 May 2019. It was made clear in a letter of 26 April 2019 that the hearing would only address the question of Section 14AA leave.  If the Court shall come to the conclusion that such leave is required, the appeal would be struck out.  If the Court shall conclude that such leave is not required, the appeal proper will be heard on another occasion.

12.  The Plaintiff lodged another set of submissions on 30 April 2019. She did not address the question of Section 14AA leave in this set of submissions. She however included in her list of authorities Order 59 Rule 21. At the hearing on 8 May 2019, she confirmed that she wishes to rely upon Order 59 Rule 21(2)(b) to contend that leave is not required for an appeal against the striking out of a claim to be brought.

13.  We would substitute Order 59 Rule 21(2)(b) for the reference to the non-existent Section 14A(b) in her earlier submissions.

14.  We also heard oral submissions from the Plaintiff and the solicitor for the 3^rd Defendant at the hearing of 8 May 2019.

15.  Order 59 Rule 21(2)(b) cannot assist the Plaintiff because the decision of the Judge is not a decision striking out her claim.  The claim was struck out by the master. She did not appeal within time. Therefore, she could not appeal without any extension of time.  The Judge refused to grant her any extension of time.  The subject matter in this appeal is the refusal to grant extension of time to appeal against the decision of the master, not the striking out of her claim.

16.  The other argument in the submission of 27 March 2019 is incomprehensible.  Recorder Houghton SC had not been involved in the striking out of the claim against the 3^rd Defendant.  He was only involved in respect of the claim against the other defendants.

17.  For these reasons, the rationale in Leung So Hung Siem v Carson Wen [2019] HKCA 94 is equally applicable here.  We hold that the Plaintiff needs Section 14AA leave to bring this appeal.  As she did not obtain such leave, we order that this appeal be struck out and dismissed.

18.  Though the 3^rd Defendant appeared at the hearing by a solicitor, he did not provide much assistance to the court in addressing the submissions of the Plaintiff.

19.  In the circumstances, whilst we would make a costs order nisi ordering the Plaintiff to pay the costs of the 3^rd Defendant in this appeal, we also propose to fix such costs at the modest sum of $4,000.