CHAN SAI LUNG SYLVESTER and Another v. CHAN SAI LUN, HENRY

IN THE COURT OF APPEAL

1995, No. 12
(Civil)

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J U D G M E N T

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Mayo, J.A.:

1. The first application before us was to restore the appeal which we heard on 27 June 1995. No authority has been adduced in support of the proposition that it is open to us to adopt this course. It is completely misconceived. An order has been drawn up and we are accordingly functus officio. I would dismiss the application.

2. This logically leads to the application for leave to appeal to Privy Council.

3. The applicants are seeking leave to appeal to the Privy Council against the order which we made dismissing the appeal from an interlocutory order made by Keith J on 27 January 1995.

4. This litigation which is being conducted by the applicants in person has an unhappy history. In the main action the applicants are seeking to set aside a will made by their father. The conduct of the case has been greatly protracted by a proliferation of interlocutory applications and appeals against orders which have been made.

5. The principal reason for the dismissal of the appeal the subject of this application for leave was the almost complete failure of the applicants to comply with the requirements under the rules to provide a bundle of documents 7 days prior to the hearing of the appeal. The consequence of the failure was to effectively make it impossible for the court to consider the merits of the appeal on the basis of the disorganised and chaotic papers which lay before it. An application was made for an adjournment to rectify the situation but this was refused. The court then went on to dismiss the appeal.

6. The appeal was not however dismissed simply on the basis of the non-compliance by the appellants with the rules. It was more importantly dismissed on its obvious lack of merit.

7. In his judgment Godfrey JA gave a short outline of the litigation to date and emphasized the futility of proceeding with the appeal against Keith J's order.

8. He pointed out the impossibility of the court making an order appointing the litigants in person administrators of their father's estate pending suit. This view was reinforced by the concurring judgment of Nazareth V-P.

9. If there is any merit in the claims being made by the applicant it is imperative that this litigation should be proceeded with expeditiously. This is particularly important in the light of the limited relief given to the applicants by Keith J when he granted an injunction restraining the elder brother from removing any assets comprised in the father's estate from the jurisdiction.

10. For these reasons I would decline to grant the leave which is sought.

Godfrey, J.A.:

11. By O.59 r.9(3) of the Rules of the Supreme Court it is provided as follows :

"(3) At any time after an appeal has been set down in accordance with rule 5, the Registrar may give such directions in relation to the documents to be produced at the appeal and the manner in which they are to be presented and as to other matters incidental to the conduct of the appeal as appear best adapt to secure the just expeditious and economical disposal of the appeal."

12. It is imperative, if the time of a busy Court of Appeal in Hong Kong is not to be wasted, that steps be taken urgently to ensure that appeals, and applications in appeals, especially by litigants in person, are properly considered by the Registrar, with a view to his giving directions as to the documents to be produced at the appeal, so as to ensure that, when the case comes before the Court of Appeal, the papers are in proper order. The procedural mishaps which have bedevilled the present case would thus be avoided.

13. The appointment of a Registrar of Civil Appeals would achieve this object, and it is to be hoped that the critical importance of making such an appointment will one day be appreciated by those responsible for the administration of the Judiciary. The sooner this matter is attended to, the better.

14. For the reasons given by my Lord, Mayo, J.A., I too would dismiss these applications, including the applicant's application for leave to appeal to the Privy Council.

Nazareth, V.-P.:

15. I agree. For the reasons given by Mayo JA the applications have to be refused.