NG CHING HUNG AND ANOTHER v. LAU SHUN HING

[Application for leave to appeal to the Privy Council]

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JUDGMENT

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Fuad, V.-P. :

1. This is an application for leave to appeal to Her Majesty in Council. On 17th February 1987, Ng Ching Hung, who was then aged about 16, was crossing a road in Kwun Tong when he was knocked down by a car and injured. He sustained what is described in the medical evidence as a moderate to severe head injury. His skull was fractured, and bifrontal contusions needed a life-saving operation. Fortunately, the doctors were able to report that his post-operative physical recovery was quick and uncomplicated. Indeed, he was discharged from hospital quite soon and by the end of three weeks he was fully mobile and independent.

2. Sadly, however, his psycho-social recovery (he has serious behavioural problems) has been described as problematic.

3. Through his father, the boy brought an action in the High Court to recover damages from the driver of the vehicle for his loss and injuries. The hearing took place before Wong, J. on 17th October 1990 who delivered judgment on the next day. He decided the question of liability only at the request of the parties. His finding was that the defendant had been negligent, but that there was contributory negligence on the part of the boy to the extent of 70%.

4. There was an appeal to this court and the hearing took place on 5th March 1991. On that day, the court constituted by Liu, J., Power, J.A. and myself allowed the appeal of the defendant and announced that we would give reasons for our decision later. Those reasons, prepared for the court by Power, J.A., were handed down on 27th March 1991.

5. The plaintiff filed his application for leave to appeal on 10th April 1991. Rule 3 of the Order in Council regulating appeals from this court to Her Majesty in Council requires such applications to be made within 14 days from the date of the judgment to be appealed from. There is power under r.3A, inserted in 1980, for this court to extend the period within which an intending appellant is required to make his application.

6. From an affirmation made by Mr. Edwin Neo (he is a solicitor in the firm acting for the boy and his father) we know that the plaintiff's application for legal aid for the present purposes was granted on 10th April. We have been told that the application was made on 9th April. In the affirmation it is said that it was not possible for the application for leave to appeal to the Privy Council to be instituted until legal aid had been obtained, and that once legal aid was granted the application for leave to appeal to Her Majesty in Council had been filed. No delay had been intended by the applicant.

7. It seems to me quite clear that r.3, properly interpreted; requires the application for leave to appeal to be made within 14 days of the date of the decision in the appeal being announced, even though reasons may be given later. Where this court in deciding an appeal does not give its reasons immediately, this may well be a powerful factor to be taken into consideration when deciding whether or not to grant an application for leave to appeal out of time, for a party might wish to peruse the reasons for a judgment and get advice on them before deciding whether or not to pursue the matter any further. However, in this particular case the issues were very plain indeed. In fact the court having read the papers, invited Mr. Ronny Tong Q.C., who represents the intending appellant again before us today, to address the court first in seeking to support the decision of the judge. Only one witness was called at the trial, a police officer who had drawn the sketch plan. Neither the plaintiff nor the defendant gave evidence. The plaintiff's case, rather boldly as it turned out, rested almost entirely on a statement made to the police by the defendant in which he said that he was driving at a speed of 25-26 miles an hour in third gear at the time and in which he explained exactly what happened. I mean no disrespect to those acting for the boy when I suggest that it would have been very easy indeed for them to advise on what the court was likely to say in its reasons in the light of the course the appeal took and the interventions of members of the court during the hearing.

8. I of course, respectfully bear in mind what Hunter, J.A. said about the problems faced by a person who needs legal aid in Hui King Fai v. The Director of Housing Miscellanceous Proceedings 907 of 1987, but as Mr. Mills-Owens Q.C. has pointed out, quite fairly I think, it would not have been difficult or costly for a Notice of Motion to be filed within time. I cannot imagine that the Legal Aid Department would have refused to consider supporting such a step being taken to maintain the position. In fact, as we now know, legal aid to take the matter further was not applied for until 9th April and a decision was taken very quickly (on the following day) granting legal aid for the purposes of the application before us.

9. I have every sympathy for the boy but in my judgment insufficient grounds have been shown to justify the indulgence sought; and it would be wrong for me not to indicate that in reaching my decision I have been influenced (without, I hope, appearing in any way to be arrogant) by a consideration of the prospects of success of the intended appeal.

10. I would refuse the extension of time and dismiss he motion on that ground alone.

11. However, out of courtesy to counsel who have addressed us at some length on whether or not r.2(a) of the Order in Council was satisfied, I think I ought to say a few words on the subject. It was common ground between leading counsel that the judgment of the Court of Appeal in this case arising from the split hearing conducted by Wong, J. was a "final judgment" for the purposes of r.2(a). It seems to me, therefore, that in the special circumstances of a case such as this, the intending appellant has to satisfy this court that there is a reasonable probability that the damages he will recover if his appeal to their Lordships is successful and the issue goes to trial will be not less than the $500,000 mentioned in r.2(a). It is only then that he would have an appeal as of right and the authorities show that this court has a duty to form a view on this point. I am satisfied that while the court must not impose too heavy a burden on an intending appellant, the onus is on him to satisfy the court that he comes within r.2(a).

12. I need only say that after hearing the helpful submissions of Mr. Tong and Mr. Mills-Owens, I have reached the conclusion that the plaintiff has established that it is reasonably probable that the damages he would receive (were he successful on the issue of liability) after a hearing on the question of damages, would not be less than a sum between $1.6 and $1.7 million which is the relevant amount because of the 70% contributory negligence found against the intending appellant, a finding which was not challenged in the appeal that we heard on 5th March.

Liu, J.:

13. I agree that this application falls to be decided exclusively under r.2(a) but, for the reasons given by my Lord the Vice-President with which I agree, extension of time should not be granted. I would also dismiss the application.

Fuad, V.-P. :

14. I am grateful to my Lord for mentioning r.2(b). I wish to add to my judgment that I would have been quite unable to hold, were it necessary, that the question involved in the appeal is one which satisfies any of the criteria in r.2(b).

Ryan, J.:

15. I agree with my Lord the Vice-President that the application ought to be dismissed. I have nothing further to add.