CHAU KA CHIK TSO AND OTHERS v. SECRETARY FOR JUSTICE

HCMP 232/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 232 OF 2012

(ON AN INTENDED APPEAL FROM HCA NO. 10670 OF 2000)

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JUDGMENT

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1.  This is an application by the 2^nd to 10^th plaintiffs in HCA10670/2000 (“the Applicants”) for leave to appeal a judgment of Deputy Judge Louis Chan out of time. The judgment was given on 30 December 2009. The application was made by summons filed on 9 February 2012. In other words, it is out of time by more than 2 years.

2.  In the action, a total of 15 plaintiffs claimed that Lot 1212 included certain pieces of land (called the “Discrepant Areas” or “DAs”) and that the grant plan which omitted the DAs was incorrectly drawn; alternatively that the DAs had been annexed to the government lease of Lot 1212 by encroachment by their predecessor-in-title for the benefit of his lessor the government, and so the plaintiffs were entitled to possession under that lease; alternatively that they were in adverse possession of the DAs; alternatively that they were entitled to the DAs by reason of proprietary estoppel as they have expended money and labour in developing and maintaining the DAs.  The 15 plaintiffs owned various pieces of the DAs but they were all represented by the same counsel and solicitors. 

3.  The Secretary for Justice representing the government challenged the plaintiffs’ locus standi as the Lot had been sub-divided and sold, and he also denied their claims.  

4.  The deputy judge accepted that the plaintiffs had locus standi but he dismissed the plaintiffs’ claims and declared the DAs to be government land.  He also made an order for delivery up of the land occupied by each of the 15 plaintiffs. 

5.  Some of the plaintiffs (viz the 1^st, and the 11^th - 15^th plaintiffs, hereinafter referred to as “the appealing plaintiffs”) lodged an appeal CACV26/2010 (“the Appeal”).  The Applicants did not lodge an appeal.  Instead they filed a Respondent’s Notice the contents of which are not easy to understand.  However they clarified in correspondence through their solicitors that they “have not lodged any Notice of Appeal” and that the Respondent’s Notice was for the purpose of defending themselves from the appealing plaintiffs’ claim for costs (see letter dated 26 February 2010). 

6.  At the hearing of the Appeal, counsel for the Applicants was Mr George Chu (who has also appeared before me today).  Mr Chu appeared only on the first day of the Appeal.  In his written submissions he reiterated that the Applicants would not participate in the Appeal, and that should the Court of Appeal reverse the findings of the court below, they would seek an apportionment of costs below as all plaintiffs had been represented by the same legal team.  In other words, the Applicants’ position was that if the appealing plaintiffs’ Appeal succeeded, they (the Applicants) should only have to pay a smaller portion of the costs below to the government.  In my view, nothing could be clearer - the Applicants were content not to appeal the trial judge’s judgment. 

7.  On 14 February 2011, the Court of Appeal allowed the appealing plaintiffs’ Appeal.  It is pertinent to note that when the Court released an embargoed draft judgment on 9 February 2011, the Applicants only filed written submissions on the issue of costs below.

8.  The government then appealed (FACV5/2011). The Applicants did not take part in the appeal.  Indeed it was made abundantly clear in a letter from the Applicants’ solicitors to the Registrar of the Court of Final Appeal dated 28 April 2011 that the Applicants had not even appealed the judgment of the trial judge. 

9.  In a judgment given on 8 December 2011 the Court of Final Appeal dismissed the government’s appeal.

10.  About 2 months later, the Applicants lodged the present summons for leave to appeal the trial judge’s judgment out of time.

11.  It is said in an affirmation of the 7^th plaintiff (made for himself and on behalf of the other Applicants) that they did not lodge an appeal from the trial judge as they did not wish to incur further legal expenses and their financial resources were limited.  It was also said that the 4^th plaintiff was found to have terminal cancer in “early 2010” and that he passed away in May 2011.  It is said that they have strong prospects of success in light of the CFA judgment and that the government would not have suffered any prejudice as a result of the delay.

12.  I shall deal first with the position of the deceased 4^th plaintiff.  Prior to his death he could have appointed an attorney if he was not in a physical condition to deal with the litigation himself.  Insofar as he lacked mental capacity, a guardian ad litem could have been appointed.  As for his estate, rules of court provide for representation of a deceased person interested in proceedings before the grant of probate.  Accordingly I do not see any insurmountable difficulties arising from the 4^th plaintiff’s illness and death.

13.  Coming then to the position of all the Applicants, in my view it is clear that to permit them to appeal out of time would be to condone one of the most egregious attempts to abuse the appellate process.  As this court has said time and again (see Tsang Yiu Kai v Insider Dealing Tribunal [2008] 1 HKC 376 and Lau Luen Hung Thomas v Insider Dealing Tribunal and anor HCMP1751/2007), it is well-established that time should not be extended for appeal only on the ground that an authoritative judgment, subsequent to the judgment the subject-matter of the application for leave to appeal, had held a previous understanding of the law in a previous judgment to be incorrect.  The principle of finality applies to civil cases as well as criminal cases. 

14.  I say this case is one of the most egregious examples of an attempt to abuse the appellate process because these Applicants were well aware of the appealing plaintiffs’ Appeal and they decided that they themselves would not appeal.  It cannot be said that they did not have the benefit of legal advice as they had instructed solicitors and counsel.  Indeed Mr Chu confirmed this morning that the Applicants took a “considered decision” not to participate in the Appeal or in the Court of Final Appeal.  There is no documentary evidence of the Applicants’ financial resources, nor of any attempts to apply for legal aid.  They could also have appeared as appellants in person and adopted the arguments of the appealing plaintiffs but they did not so do (presumably because they did not wish to assume part of the costs liabilities should the Appeal be dismissed).  They accepted the trial judge’s judgment, or at least they lacked the conviction, and demonstrated no intent, to appeal it. 

15.  If I give leave now, 2 years after the event, another appeal would have to be launched.  The government may seek to re-argue the points raised in CACV26/2010 and FACV5/2011, or it may seek to raise fresh points.  Whether it does so or not, it is clearly in the interests of the efficient operation of the courts that all appeals from the same judgment should be heard at the same time.  The efficient operation of the courts is clearly in the wider public interest, as time saved in any one case benefits litigants in other cases waiting to be heard.  I do not think, in this case, that it is even necessary to consider the issue of prejudice.

16.  For these reasons, in the exercise of my discretion, I would dismiss the summons.

[Arguments on costs]

17.  I would order that costs be paid by the Applicants to the Respondent to be taxed on an indemnity basis.