WONG CHEE MING also known as WONG CHI MING, the sole executor of the estate of WONG SUN POO alias WONG JIT HING alias WONG WING SUN alias WONG WING HING alias WILLIAM SP WONG, deceased v. FU YANG AGENCY LTD

HCA 1316/2019

[2022] HKCFI 1400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1316 OF 2019

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REASONS FOR DECISION

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THE APPEAL

1.  On 14 December 2021, Master J. Wong made an order in terms of the Plaintiff’s summons dated 3 December 2021 (the “Plaintiff’s Summons”)  and uplifted the stay of proceedings by reason of the application of Mr Lau Lung Chai (“Mr Lau”)  for legal aid on 29 November 2021 and ordered Mr Lau to pay costs of and occasioned by the Plaintiff’s Summons summarily assessed at HK$1,040.00.

2.  On 13 January 2022, Mr Lau filed a notice of appeal (the “Notice of Appeal”)  against Master J. Wong’s orders and asked for the approval of Mr Lau’s legal aid application and the setting aside of the costs order.

3.  Mr Lau also made an application to extend the time for filing the Notice of Appeal as it was filed out of time. Under Order 58, rule 3 of the Rules of High Court, Cap.4A, the Notice of Appeal should be issued within 14 days of the order unless the Court otherwise orders.

ANALYSIS

4.  This appeal is very simple. First, there is no explanation for the delay in filing the Notice of Appeal. As such, there is no factual basis for this Court to exercise its discretion to extend the time for filing the same as requested. Accordingly, the appeal is out of time and should be dismissed. That should be the end of analysis.

5.  Secondly, even if this Court were to extend the time of the filing of the appeal, there is no basis for this Court to make the order as prayed for by Mr Lau. Whether to grant a legal aid to Mr Lau is a matter for the Director of Legal Aid. If Mr Lau is not satisfied with the decision of the Director of Legal Aid, he can file an appeal. However, this Court has no jurisdiction to grant a legal aid to Mr Lau.

6.  Thirdly, whether the legal aid stay should now be uplifted is academic as the stay would have expired on about 10 January 2022 and the Director of Legal Aid has refused his application.

7.  Fourthly, on 19 March 2020, the Plaintiff obtained a default judgment against the Defendant herein for possession of the subject lands and mesne profits. The Defendant did issue a summons to set aside the default judgment on 10 June 2021. The said summons was dismissed by Master Rebecca Lee. The Defendant has not appealed against Master Rebecca Lee’s decision. Hence, the default judgment is valid and binding on the Defendant.

8.  I am of the view that Master J. Wong is right in making the orders. The legal aid stay should be lifted.

9.  Finally, I also note that Mr Lau is not a party to these proceedings. He does not claim to be in occupation of any part of the subject lands of the present proceedings. He alleges to be a sub-tenant of Lot No. 453 in DD 77. Hence, Order 15, rule 10 does not assist Mr Lau.

10.  Insofar as Order 15, rule 6(2)  is concerned, Mr Lau cannot satisfy limb (i)  as the Plaintiff seeks recovery of the land which Mr Lau does not claim to have been an occupier. He did not have any standing to be a party in the first place. His presence is also not necessary for the Court to adjudicate on the Plaintiff’s claim against the Defendant in this landlord and tenant dispute.

11.  In any event, it is not the function of this Court to assess the merits of Mr Lau’s application for legal aid in this appeal.

12.  For all the above reasons, the appeal against Master J. Wong’s orders is dismissed.

13.  The Plaintiff is also entitled to costs of this appeal against Mr Lau to be taxed on a party to party basis if the parties cannot agree.