MARTNOK THANRADEE v. COMMISSIONER OF POLICE AND ANOTHER

HCMP 604/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 604 OF 2014

(On an intended Appeal from HCA No. 789 of 2011)

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JUDGMENT

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

1.  This is an urgent application for leave to appeal against the decision of Deputy High Court Judge Marlene Ng [“the Judge”] refusing the Plaintiff’s late application for trial by jury.  Order 33 Rule 5(1) of the Rules of the High Court requires an application for trial by jury to be made before the place and mode of trial is fixed.  Pursuant to the Plaintiff’s application to set down the case for trial, on 11 March 2013 the case was set down for trial before a judge without a jury in the fixture list. The Plaintiff only made her application for trial by jury on 27 November 2013.

2.  The decision of the Judge was made on 24 January 2014.  The Plaintiff only lodged her application for leave on 14 March 2014. The urgency lies in the fact that the trial will start on 18 March 2014.  She also sought an order for the adjournment of the trial.

3.  The Plaintiff is aware that she is grossly out of time in her application for leave.  Under Order 59 Rule 2B(1), a party intending to appeal against an interlocutory order must apply to the court below for leave to appeal within 14 days from the date of the order.  The order of the Judge is a case management decision and it is interlocutory in nature.

4.  The Plaintiff did not apply to the Judge for leave to appeal within the 14 day period.  Instead she applied directly to this court for extension of time in seeking her leave to appeal.

5.  She accounted for the delay by referring to the decision of the Legal Aid Department to change the assignment of counsel for her.  What happened was that after the decision of the Judge, without her consent, the Legal Aid Department decided to change the assignment of counsel to act for her.  She had been on legal aid in making her application before the Judge.  She raised objection to the change of counsel and, after a legal aid appeal, her original counsel was assigned back to her on 3 March 2014 for the purpose of the trial. Notwithstanding that, Legal Aid Department did not grant her legal aid to pursue an appeal against the Judge’s decision.

6.  We must point out that the fact that she should have representation by her original counsel does not mean that legal aid should be granted for her appeal against the Judge’s decision.  The Director of Legal Aid is entitled to take into account the potential merits of such appeal before deciding whether legal aid should be granted for pursuing the appeal.

7.  She did not explain why she could not have applied for leave to appeal in person (as she now does) earlier.  Be that as it may, we shall assume (without deciding) that she has an explanation for the delay.

8.  However, we are of the view that her intended appeal is absolutely without merit.  We have read the documents she placed before us and the judgment of the Judge.  The decision of the Judge is a case management decision and involved the exercise of discretion.  In the judgment, the Judge has carefully explained why she decided to exercise her discretion in the way she did.  It is well settled that this court will not interfere with case management decision unless the lower court has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task, see Li Xiao Yun v China Gas Holdings Ltd HCMP 466 of 2013, 11 March 2013; 厦門新景地集團有限公司 v Eton Properties HCMP 13 of 2012, 14 Feb 2012, para 9.

9.  In our judgment, the Plaintiff fails utterly in meeting that threshold.  She did not identify any valid reasons to warrant our interference with the decision of the Judge.  Instead, we are of the view that for the reasons the Judge carefully gave in her judgment, she was plainly right in her decision.  The intended appeal by the Plaintiff has no prospect of success whatsoever.

10.  We refuse to grant extension of time for the Plaintiff to seek leave to appeal against the decision of the Judge.  We are also of the view that the application is totally without merit and we make an order pursuant to Order 59 rule 2A(8) that no party may request this determination to be reconsidered at an oral hearing inter partes.