LEUNG KWOK HUNG v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HKSAR AND ANOTHER

HCMP 1227/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1227 OF 2007

(ON AN INTENDED APPEAL FROM HCAL NO. 87 OF 2006)

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DECISION

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1.  This is the applicant’s application for extension of time to appeal against the judgment of Hartmann J.

2.  The judgment was delivered on 22 January 2007 and sealed on 6 February 2007.

3.  Under Order 59 Rule 4(1) of the Rules of the High Court, the Notice of Appeal must be served not later than the expiration of 28 days beginning on the date immediately following 6 February 2007.  Thus time expired on 6 March 2007.

4.  The applicant applied for extension of time on 28 June 2007.  The delay was 113 days.

5.  Mr Hectar Pun, who appeared for the applicant, submitted that the matter is in the discretion of the court.  I agree with Mr Pun that the correct approach could be found in Nantong Angang Garments Co. Ltd. v Hellmann International Forwarders and Anor [2005] 4 HKC 86 at 96 where Le Pichon JA said:

“21.   …I agree with the principles as stated by Hartmann J.  As Sir Thomas Bingham MR observed in Costello v Somerset County Council [1993] 1 WLR 256 at 264C ‘a rigid, mechanistic approach is inappropriate’.  In my view, the court must consider all the circumstances and decide whether the overall justice of the case requires the exercise of the discretion to extend time.”

6.  The principles stated by Hartmann J were that:

“… all matters, including the adequacy of any reason for delay, must be considered, the one to be weighed against the other, in the exercise of the court’s discretion.” Mobil Petroleum Co. Inc. and Another v. Registrar of Trade Marks [2001] 1 HKLRD 225.

7.  However, rules of court must prima facie be obeyed.  Otherwise, that would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation.  See Chiu Sin Chung v Yu Yan Yan Angela and Anor [1993] 1 HKLR 225 at 227.

Excuse

8.  It is the applicant’s case that the delay was the fault of his former lawyers.  I am prepared to proceed on the basis that the delay was indeed due to the fault of his former lawyers.  He claimed that he had always intended to appeal, and that:

“4.     … After Hartmann J handed down his Judgment, I immediately made clear to the press that I had decided to appeal. …”  The applicant’s 2^nd affirmation.

9.  But in the applicant’s 1^st affirmation, he said:

“9.     It was my initial intention to appeal against the Dismissal Order made by Mr Justice Hartmann … At the time, I wanted to wait until the matter on costs had been decided by Mr. Justice Hartmann before I made a definite decision as whether to appeal. It was because it might affect my ability to raise funds for the appeal in the Court of Appeal.”

10.  So it is clear that the applicant had not definitely made up his mind whether or not to appeal at least until after 27 April 2007 when Hartmann J decided that there should be no order to costs.  Even so, the application for extension of time was not lodged for another two months.

11.  Mr Pun did not contend that the delay was excusable, however, he submitted that since in certain judicial review proceedings, such as an application for asylum, delay when caused by legal representatives would not be relevant, so here, the delay which was caused by the applicant’s former solicitors should not be relevant.  Mr Pun relied on BR (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 198 (13 March 2007), where Buxton LJ giving the judgment of the English Court of Appeal said:

“… In ordinary private litigation, both before and after the introduction of the CPR, a party has attributed to him, and is responsible for, the action or inaction of his lawyers: see per Peter Gibson LJ in Training in Compliance Ltd v Dewse [2001] CP Rep 46[66], cited with approval by Arden LJ in FP(Iran) v SSHD [2007] EWCA Civ 13[80]. But, as Arden LJ went on to urge, considerations in asylum cases are different. And that view was underlined, as a matter of ratio, by Sedley LJ at §45 of the same case, where he adopted the observation of Lord Denning MR in R v IAT ex p Mehta [1976] Imm AR 38 that it is no consolation to tell a person that she can sue her solicitor for his mistake if the mistake is about to lead to her removal from this country; and, a fortiori, if the removal is to a condition of persecution.”

12.  But BR (Iran) is not authority that in all judicial review proceedings delay by lawyers are to be disregarded.  The applicant is an educated person and well seasoned in litigation, quite unlike asylum seekers who are often totally dependant on the lawyers assigned to them by the host country.  Moreover, the personal consequence to an asylum seeker if relief is refused might be direful.  That is not the case here.

13.  Be that as it may, I have to consider whether the overall justice of the case requires the exercise of the discretion to extend time.

Prospect of success

14.  Mr Pun submitted that the prospects are irrelevant unless I am of the view that the appeal is bound to fail.  He relied on what Cheung JA said in Chen v Whirlpool (Hong Kong) Ltd [2006] 1 HKLRD 171 at 175 para. 12, where the learned judge after stating his view that there were substantial arguments observed:

“12.   … I am not prepared to say at this stage of the proceedings that the appeal is bound to fail.”

15.  I do not believe that could be taken as a statement that extension of time should be granted unless the appeal is bound to fail.

16.  In any event, I agree with Mr Jin Pao, who appeared for the Secretary for Justice, that in considering the overall justice of the case, I should consider whether the applicant has a reasonable prospect of success.  It is obvious that if the appeal is bound to fail, no extension should be granted.  But if I am not satisfied there is a reasonable prospect of success that too will go to the exercise of my discretion.  See Norwich & Peterborough Building Society v Steed [1991] 1 WLR 449 at 456 and Mallory v Butler [1991] 1 WLR 458 at 460, and Chiu Sin Chung v Yu Yan Yan Angela and Anor [1993] 1 HKLR 225.

17.  The judicial review, which was launched on 5 August 2006,  concerned the constitutionality of the Rule 57(6) of the Rules of Procedure which were made and passed by resolution of the Legislative Council (“the LegCo”) under Article 75 of the Basic Law on 2 July 1998.

18.  The effect of Rule 57(6) is that no amendment with charging effect may be proposed by a member without the consent of the Chief Executive.  It was a self-imposed limitation made under Article 75 which permitted LegCo to make rules of procedure “… provided that they do not contravene this Law”.

19.  The application was prompted by the exercise by the 1^st respondent of her power under Rule 57(6) to disallow certain Committee Stage amendments proposed by Miss Margaret Ng and Mr James To Kun-sun on 1 June 2006 in respect of the Interception of Communications and Surveillance Bill.

20.  The applicant sought:

“1.     A declaration that an amendment proposed by any member of LegCo to a Government proposed bill which has an impact on public expenditure (or has a charging effect on the revenue) is not a bill relating to public expenditure within the meaning of article 74 of the Basic Law.

2.      A declaration that rule 57(6) of the Rules of Procedure of LegCo, insofar as it seeks to preclude a member of LegCo from proposing an amendment that has a charging effect on the revenue, contravenes articles 73(1) and 74 of the Basic Law.”

21.  The crux of the applicant’s submission was that Legco has full legislative power unless restrictions were imposed by the Basic Law.  It was said that since Article 74 of the Basic Law only limited the power of members to introduce bills which “relate to public expenditure or political structure or the operation of the government”, members were entitled to propose amendments which might have such effect.  Thus, Rule 57(6) contravened the Basic Law.

22.  The judge rejected that submission.  He said:

“71.   … nothing is to be construed from the fact that art.74 is silent on the question of whether members do or do not have the power to propose amendments to bills which have a charging effect. …”

23.  He concluded that Rule 57(6):

“91.   … is not rendered inconsistent with the Basic Law by the application of art.74 or any other article of that Law.”

24.  Hartmann J did so following well established principles of interpretation which could be found in decisions of the Court of Final Appeal such as Ng Ka Ling and Anor v The Director of Immigration [1999] 2 HKCFAR 4 and Director of Immigration v Chong Fung Yuen [2001] 4 HKCFAR 211.

25.  In particular, that:

“… in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.”  Ng Ka Ling at 28.

26.  Hartmann J also had regard to the separate and different function of the Chief Executive and Legco, in particular, Legco’s role to approve taxation and public expenditure.

27.   “One country, two systems” was the guiding principle under which the Basic Law was enacted by the Peoples Congress.  It was fundamental that the capitalist system, way of life and the laws previously in force in Hong Kong should remain basically the same.  As Hartmann J explained, the system relevant to this application was modelled on the British Parliamentary system.  And it was:

“The long-established and strictly observed rule of procedure, which expresses a principle of the highest constitutional importance, that no charge on public funds … can be incurred except on the initiative of the Crown,”  Erskine May’s Parliamentary Practice (23rd ed.) at page 853.

28.  Order 48 of the Standing Orders of the House of Commons, which gave effect to this constitutional principle, is similar in effect to Rule 57(6).

29.  Hartmann J observed:

“84.   As for the position in Hong Kong prior to the change of sovereignty, the principle of English constitutional law that there could be no charge on public funds unless it was at the initiative of the Crown, was integral to the laws and procedures regulating our Legislative Council.”

30.  Moreover, similar restrictions can be found in other common law jurisdictions, including, Australia, Canada, New Zealand, South Africa and the United States.

31.  I have no doubt that Hartmann J’s decision is correct.  I reject the suggestion that Hartmann J has failed to have regard to relevant provisions of the Basic Law.  I am not satisfied that there is a reasonable prospect of success.  Indeed, I am of the view that the appeal is bound to fail, although it is unnecessary for me to go so far.

Other submissions

32.  Mr Pun relied on the fact that the hearing before Hartmann J lasted three days.  No doubt the helpful submissions of counsel below assisted the learned judge in coming to what, I regard, with respect, as a clearly correct decision.  He also submitted that he was unable to do justice to the applicant’s case.  But an applicant for extension of time must come to court prepared to show that the overall justice of the case requires an extension of time to be granted.  I have the benefit of Hartmann J’s judgment, the well-prepared skeleton submissions and counsel’s careful submissions.  I have also read the material put before Hartmann J.  This is not a case where I am unable to evaluate the chances of success.

33.  It is said that no prejudice would be caused to the respondents if the extension of time is granted.  Although prejudice is a ground for refusing extension of time, absence of prejudice is not a sufficient reason for extension of time.  Chiu Sin Chung at 228.

34.  The applicant has stated that if the extension of time is not granted, he would apply again when the power under Article 57(6) is next invoked.  I am prepared to proceed on the basis that that is the applicant’s present intention.  But I am not persuaded that I should grant an extension of time for that reason.  Nor would I rule out the possibility that no new application would be made.

35.  In any event, if and when a proper challenge is made, the court can deal with the matter in the light of the prevailing circumstances.  Having regard to Hartmann J’s judgment and my decision, I would not presume that leave would necessarily be granted.

36.  Mr Pun relied on para. 33 of the judgment, where the learned judge said:

“33.   … However, the issues raised by the applicant remain of considerable public importance, colouring the day-to-day work of our legislature.  In my view, if the issues are not dealt with now, they will have to be determined in fresh proceedings in the near future.  In short, the issues remain immediate.”

37.  Mr Pun also referred to para. 13 of the Ruling of 23 August 2006 where Hartmann J noted the contention on behalf of the Secretary for Justice that:

“… it is almost inevitable that the matter will proceed to higher courts. …”

in the support of the argument that there was no reason to expedite the hearing.

38.  But as the judge correctly pointed out even so, he would not proceed:

“… on the basis that the Court of First Instance is simply the first bus-stop on a long bus ride.  If the parties do appeal that will be a matter for them to decide in the light of my judgment after it has been given. …”

39.  Mr Pun was right to say that only the Court of Final Appeal could finally determine the matter.  But it carries little weight since I am of the view that there is no reasonable prospect of success and the overall justice of this case does not require the exercise of the discretion to extend time.

40.  Mr Pun also submitted that but for the delay, the applicant was entitled to appeal as of right.  He also said that the 1^st respondent respected the applicant’s right to appeal, and has taken a neutral stance so far as this application is concerned.  The right of legal recourse is guaranteed by our laws and must be respected.  But it does not mean that if, because of delay, an applicant requires the indulgence of the court, the court should grant such indulgence if the overall justice of the case does not require it.

Conclusion

41.  For the above reasons, I am not satisfied that an extension of time should be granted.  I dismiss the application for an extension of time.

42.  I also make an order nisi that the 2^nd respondent is to have the costs of this application.  Such costs to be taxed if not agreed.