CHEUNG SAU CHU ROSANNA v. 魯珉軒 AND OTHERS

CAMP 63/2024, [2024] HKCA 1184

On appeal from [2023] HKCFI 2103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2024

(ON AN INTENDED APPEAL FROM HCPI NO 497 OF 2020)

________________________

_________________

______________________

J U D G M E N T

______________________

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

1.  The plaintiff filed a summons on 11 November 2024 to apply for relief from the sanction imposed by the unless order made by Kwan VP on 30 September 2024 (“Unless Order”). The Unless Order stipulated as follows:

“Unless the plaintiff do on or before 28 October 2024, 4 pm lodge with the court two sets of application bundle and serve one set of the index of the application bundle on the 1^st to 5^th defendants pursuant to paragraphs 3 to 4 of the court’s directions dated 15 April 2024, the plaintiff’s summons filed herein on 5 April 2024 shall be dismissed immediately without further order.”

2.  The plaintiff lodged the application bundle within the prescribed time but failed to serve the bundle index on the defendants in accordance with the Unless Order. Instead, she sent the bundle index by email to the 4^th and 5^th defendant at 5:15pm and by ordinary post to the 1^st to 3^rd defendant at around 6:00 pm on 28 October 2024. The applicant’s summons filed on 5 April 2024 was therefore dismissed on 28 October 2024. The plaintiff now applies for relief from the sanction imposed by the Unless Order.

Analysis

3.  In considering the application for relief from sanction pursuant to Order 2 Rule 5 of the Rules of the High Court (Cap 4A), the court shall consider all the circumstances including:

(a)  the interests of the administration of justice;

(b)  whether the application for relief has been made promptly;

(c)  whether the failure to comply was intentional;

(d)  whether there is a good explanation for the failure to comply;

(e)  the extent to which the party in default has complied with other rules and court orders;

(f)  whether the failure to comply was caused by the party in default or his legal representative;

(g)  in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h)  whether the trial date or the likely trial date can still be met if relief is granted;

(i)  the effect which the failure to comply had on each party; and

(j)  the effect which the granting of relief would have on each party.

4.  After considering the plaintiff’s summons, her supporting affirmation, the statement in opposition of the 4^th and 5^th defendants and the plaintiff’s statement lodged on 26 November 2024, as well as the factors as listed above, we decided to grant relief from the sanction for the reasons stated below.

5.  First, the present application for relief has been made promptly within 14 days from the failure to comply.

6.  Second, we take the view that the delay in service is not intentional, taking into account the plaintiff’s medical conditions, the fact that she is unrepresented and the circumstances when she lodged the application bundle, whilst noting that it is very unsatisfactory for the plaintiff to lodge and attempt to serve the relevant documents at the last hour.

7.  Third, the extent of breach is not substantial and the plaintiff has endeavoured to send the bundle index to the 4^th and 5^th defendants by email as soon as practicable on the day of the deadline for service to minimize any prejudice caused. For the avoidance of doubt, email is not a mode of proper service and we do not accept the plaintiff’s assertion that the Master had confirmed at a previous hearing that a party can serve documents by email. In fact, the Master had stated clearly it is very unsatisfactory for the Government Counsel Mr Louie Chan to send the questionnaire by email[1].

8.  Fourth, as to the effect of the failure to comply and the granting of relief, the 4^th and 5^th defendants have not pointed out any direct prejudice suffered by them and we have not noticed any prejudice which may be caused to the defendants that cannot be compensated by costs. On the other hand, the sanction would have the effect of dismissing the plaintiff’s application for leave to appeal, which would be too harsh and disproportionate in light of the extent of breach in the present case.

9.  We note that the plaintiff has a high hurdle to overcome in her application for leave to appeal and the 4^th and 5^th defendants have submitted that the plaintiff’s leave application is devoid of merits[2]. However, we are not satisfied that it is in the interest of justice to refuse to grant relief from sanction in the present circumstances, bearing in mind that the question of proportionality of the sanction is a weighty factor in the present application[3].

Disposition

10.  For the above reasons, we exercise out discretion to grant relief to the plaintiff from the sanction imposed by the Unless Order.

11.  For the costs of this application, we do not accept the plaintiff’s submissions that the delay was caused by the staff of the Appeal Registry. The plaintiff has 26 days to comply with the Unless Order after receiving it on 2 October 2024. In the circumstances of this case, it is unreasonable for the plaintiff to put the blame of her failure to comply on others. We order that the costs of this application be to the 4^th and 5^th defendants in any event, to be taxed if not agreed.