RE CHAO SHING KIE

CACV169/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 169 OF 2009

(ON APPEAL FROM HCMP NO. 991 OF 2009)

___________________________

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Cheung JA :

Background

1.  The applicant was a candidate at the 2007 District Council Election. After the election, he lodged a ‘Return and Declaration of Election Expenses and Donations’ (‘The Return’) under section 37 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 544) (‘the Ordinance’). When he discovered that there were certain minor mistakes in the Return, he applied in High Court Miscellaneous Proceedings No. 1715 of 2008 for an order that he may be permitted to correct his Return. This application was made pursuant to section 40 of the Ordinance.

2.  On 9 January 2009, Chung J, upon hearing the application, allowed the applicant to make corrections to the Return within seven days.

3.  The applicant, however, did not correct the mistake within the seven day period. Instead he only lodged the correction on 22 January 2009.

4.  As the applicant did not comply with Chung J’s order he then applied by summons dated 31 March 2009 for another seven day extension to correct the Return. However, on 27 April 2009, the application was, by consent, withdrawn before the hearing of the summons.

5.  On 25 May 2009, the applicant commenced the present proceedings, namely, HCMP No. 991 of 2009 seeking a further order to allow him to correct the Return.

6.  On 25 June 2009 Chung J refused the application. The applicant appealed. At the conclusion of the hearing this Court granted the applicant an extension of seven days to comply with Chung J’s order of 9 January 2009. I now give my reasons for the judgment.

Extension of time

7.  The Judge did not give a written judgment but from the transcript of the hearing before him, the issue that was raised was whether the Court had jurisdiction to grant another order in a fresh application. The topic of ‘a judicially decided matter’ (res judicata) was argued. The dispute was whether the Judge had made a ‘determination’ or whether he had simply exercised a ‘discretion’ in the first application.

8.  It is not necessary for me to discuss this topic beyond saying that I do not find it attractive for the Court to make another order on the same subject matter when there is in existence a validly made order. What the applicant really wanted and this was made known in the originating summons of the present proceedings and in the written submission of his counsel (not Mr. Man, who only appeared in this appeal on the instruction of his solicitors who also did not appear below) was for an extension of time to comply with the Judge’s order of 9 January 2009.

9.  Had the applicant not withdrawn his time summons in HCMP 1715/2008, the real issue could have been addressed by the Judge at the hearing of that summons. It is not clear why the applicant’s former solicitors chose to withdraw the summons. Apparently it was done in response to the respondent’s view that the Judge had no further jurisdiction to deal with the matter having discharged his duty (functus officio).

10.  This view must be wrong because although the Ordinance itself makes no provision for extension of time to comply with an order made under section 40, the Court of First Instance of the High Court clearly has jurisdiction to extend time to allow a party to comply with its order under Order 3, Rule 5 of the Rules of High Court (‘RHC’) and under its inherent jurisdiction (the latter jurisdiction was accepted to be available by Ms Jenny Fung, Counsel for the respondent, Secretary for Justice).

11.  What had distracted the Judge was that the applicant did not refer to either of these two jurisdictions. Instead reliance was placed on Order 42, Rule 2 and Order 46, Rule 5 of the RHC and the argument that was canvassed was whether the applicant was contumelious in not complying with the order.

No contumelious delay

12.  The term ‘contumelious default or delay’ is usually associated with a deliberate default in compliance or flouting an order of the Court or conduct amounting to an abuse of the process of the Court. In other words the breach must be a deliberate and serious one.

13.  This is a case where the applicant had only delayed six days in complying with the order. His explanation for the delay was that he thought time would only run from the time when a sealed order was made. The Judge disbelieved that a lay person who had not sought legal advice would know about the nicety of the calculation of time by reference to an oral and sealed order. With respect, the given explanation was not totally incredible, certainly the respondent did not suggest that it was. In fact his stand below was that extension of time could be made if the Court has the jurisdiction to do so.

14.  In any event the applicant was not cross-examined on his explanation despite his counsel’s willingness to allow this to take place if that was an issue before the Court.

15.  In the context of the Ordinance, it is a criminal offence to lodge a Return not in compliance with the requirement provided for by section 37. It was a further criminal offence for failing to comply with a condition imposed by the Court when relief is granted in a section 40 application. These are clearly relevant factors to be considered when an issue arises whether an applicant has deliberately flouted a Court order with such criminal sanctions looming in the background. In my view the conduct of the defendant cannot be described as contumelious at all. While the issue on extension of time is one of discretion, in my view it was not properly exercised.

16.  In my view extension of time ought to have been granted both under Order 3, Rules 5 of the RHC and the inherent jurisdiction. I disagree with Ms Fung’s submission that the former could only be exercised in ‘case management’ situations. This order confers the widest measure of discretion on the Court. Accordingly I granted further time to the applicant to comply with the order.

Costs

17.  The costs below which was in the respondent’s favour was not disturbed as the applicant’s case was not properly presented by him. Although the applicant succeeded on appeal, the proper basis of the Court’s jurisdiction to extend time was only raised for the first time on appeal. Hence this Court made no order for costs of the appeal.

Hon Kwan JA :

18.  I agree.

Hon Lam J :

19.  On proper analysis as explained by my Lord, the application for extension of time should be brought in HCMP 1715 of 2008. Strictly speaking, Chung J was correct in dismissing HCMP 991 of 2009 as it is an abuse of process to re-litigate the same subject matter. I do not accept Mr. Man’s submission that the cause of action in HCMP 991 of 2009 is different from that in HCMP 1715 of 2008.

20.  However, as it has always been clear that what the applicant sought was an extension of time in complying with the order of Chung J in HCMP 1715 of 2008 and we have heard arguments on the application of Order 3, Rule 5 of the RHC, and bearing in mind the potential penal consequence for the Applicant if relief is not granted, I consider it is right and proper that we should deal with the matter as if it was an application made in the context of HCMP 1715 of 2008. For these reasons and those given by my Lord, I agree that the appeal should be allowed. I also agree with the costs order set out in paragraph 17 above.