RE LI JING

[English Translation – 英譯本]
HCMP 1765/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1765 OF 2014

(ON AN INTENDED APPEAL FROM HCAL NO 131 OF 2013)

_________________________

_________________________

J U D G M E N T

Hon Chu JA (giving the judgment of the Court):

1. The applicant brought these proceedings for the purpose of making the following application and claims:

(1)  An extension of the time limit for appealing against the order dated 9 September 2013 made in HCAL 131/2013, and to reopen CACV 198/2013;

(2)  Damages for the loss suffered during the period when CACV 198/2013 was stayed at the rate of $5,000 per day; and

(3)  Costs in the sum of $5,000 plus interest.

Background

2. On 3 September 2013 the applicant filed a Form 86 in the Court of First Instance, thereby commencing HCAL 131/2013 for applying for leave to apply for judicial review.  On the same day she filed an affidavit in support of the application. And on 9 September 2013, another affidavit in support of the application was filed.

3. On 9 September 2013, Au J, having considered the documents filed by the applicant, ordered that the application for leave to apply for judicial review be refused and brief reasons for his decision were given.  On the same day, the Registrar issued a Form CALL-1 to notify the applicant of Au J’s order and the reasons for decision. The court record shows that this form was mailed to her on the very same day by registered post.

4. Since the applicant was unrepresented and acted in person, the clerk of the court drafted Au J’s order for her, and arranged for it to be affixed with the court’s seal.  In the end, the order was sealed and filed on 13 September 2013.  After that, the clerk of the court mailed the sealed copy of the order to the applicant by registered post.  The applicant said that she had signed to acknowledge receipt of a copy of the sealed order on 19 September 2014 [sic].

5. On 30 September 2013, the applicant filed a Notice of Appeal in court and commenced CACV 198/2013 to appeal against Au J’s order dated 9 September 2013. After the applicant filed a document called Application To Fix A Date For The Hearing Of An Appeal, Master Lo, who was responsible for civil appeals, gave directions on 22 April 2014 as to matters concerning setting the case down for hearing.

6. Later, on 16 May 2014, Cheung JA of this court gave directions to the applicant, explaining to her that the time limit of 14 days for lodging an appeal was counted from 9 September 2013, which was the day on which Au J made the order, and that therefore when she initiated CACV 198/2013, it was already out of time.  Cheung JA at the same time directed that the applicant should apply for an extension of time for appealing, and that in the meantime the proceedings of CACV 198/2013 would be stayed.  On 19 May 2014 the Registrar sent a letter to the applicant to inform her of these directions.  Subsequently, the applicant wrote to the court and the Chief Judge of the High Court several times to express her dissatisfaction with and complain against these directions.  Finally, on 21 July 2014, she brought these proceedings and made the application and claims referred to in paragraph 1 above.

Was CACV 198/2013 initiated out of time?

7. The applicant takes issue with the question of whether CACV 198/2013 was initiated out of time.  We shall deal with this issue first.

8. Rules 3(1) and (5) of Order 59 of the Rules of the High Court, Cap 4A, Laws of Hong Kong, provide that an appeal to the Court of Appeal must be brought by a Notice of Appeal and that it must be served on all parties to the proceedings in the court below who are directly affected by the appeal.

9. Rule 4(1) of Order 59 sets out the time limits for serving a Notice of Appeal, but it also stipulates that if any rules of the Rules of the High Court provide otherwise, these time limits are not applicable.

10. Where an application for leave to apply for judicial review is refused, the following time limit is laid down in rule 3(4) of Order 53:

“Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.” (emphasis added)

11. Furthermore, rules 5(1) to (3) of Order 59 provide that:

“(1) Within 7 days after the date on which service of the notice of appeal was effected, the appellant must lodge with the Registrar —

(a) a copy of the sealed judgment or order and a copy of the reasoned decision (if any); and

(b) two copies of the notice of appeal, one of which shall be indorsed with the amount of the fee paid, and the other indorsed with a certificate of the date of service of the notice.

(2) Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a judge of that Court otherwise orders.

(3)   Within 4 days after an appeal has been set down, the appellant must give notice to that effect to all parties on whom the notice of appeal was served.”

12. The combined effect of the these provisions is that if the applicant intended to appeal against Au J’s order of refusal to grant leave to apply for judicial review, she was required to lodge her appeal within 14 days after the date of the making of the order (i.e. 9 September 2013).  The applicant argued that the period of 14 days for lodging the appeal should be counted from 13 September 2013 (i.e. the date on which the court issued the sealed order) or the date on which the sealed order was mailed, or that account should be taken of the fact that she did not receive the sealed order until 19 September 2013.  None of these arguments is consistent with the requirement laid down expressly in rule 3(4) of Order 53.

13. Since the application for leave to apply for judicial review was an ex parte application (see rule 3(2) of Order 53), the respondent referred to in the Form No. 86 (“intended respondent”) had not yet become a party to the action.  Therefore, the appeal lodged by the applicant against Au J’s order of refusal to grant leave was an appeal brought ex parte; and for this reason, the applicant did not serve a Notice of Appeal on the intended respondent.  The applicant stated that she had served a Notice of Appeal on the Appeals Registry, but that she was told that she had to pay the specified fee first, and that a delay ensued.

14. The applicant explained that the serving of the Notice of Appeal on the Appeals Registry was to fulfil the requirement regarding service of the Notice of Appeal laid down in rule 3(5) of Order 59.  However, neither the court nor the Appeals Registry is a party “to the proceedings in the court below who are directly affected by the appeal”.  The applicant’s understanding of rule 3(5) of Order 59 was incorrect.  Moreover, by virtue of rule 5(1)(b) of Order 59, before the applicant lodged with the Appeals Registry the Notice of Appeal, she had to pay the required fee.

15. The applicant also said that she had mailed a Notice of Appeal to the court by registered post on 19 September 2013. Similarly, because of rule 5(1)(b) of Order 59, the staff members of the Appeals Registry did not do anything wrong when they informed the applicant that she had to pay the registration fee first.

16. In China Weal Ltd v Lam Sau Wah [2001] 1 HKLRD 351 and Chan Cheryl v Ngai Po Lun Paul [1990] 1 HKC 148, the Court of Appeal held that an appellant had to strictly comply with the requirements set out in rule 5(1) of Order 59, and that only when the documents referred to in rules 5(1)(a) and (b) were ready and in order would the court set the case down in the Register of Appeals and assign a number to the case.

17. It can be seen from the upper right part of the Notice of Appeal in respect of CACV 198/2013 that the registration fee for that case was paid on 30 September 2013.  On that day, the 14 days time limit for appeal had already expired.

18. The applicant referred to the content of paragraph A9 of a leaflet entitled How to Apply for Judicial Review supplied by the Resource Centre for Unrepresented Litigants and submitted that the prescribed period for appeal was 28 days.  However, that part of the leaflet was about the time for appealing against a judgment made in respect of an application for judicial review. In HCAL 131/2013, Au J refused to grant leave to the applicant to apply for judicial review.  What the applicant intended to appeal against was a decision on an application for leave to apply for judicial review.  The content of the leaflet was not applicable.

19. All in all, when the applicant initiated CACV 198/2013, the time limit for appeal had expired.

Legal principles applicable to extension of time

20. The factors normally taken into account by the court in deciding whether to grant an application for extension of time for appealing are:

(1)  the length of the delay;

(2)  the reasons for the delay;

(3)  the strength of the grounds of the intended appeal; and

(4)  the prejudice likely to be done to the opposite party if time is extended: Hong Kong Civil Procedure 2014 Vol 1 para 59/4/9.

The Applicant’s delay

21. In the present case, the delay brought about by the applicant is not serious.  Judging from her affidavits and submissions, I believe that the reason for the delay is mainly that the applicant misunderstood the relevant time limit for appeal and the steps required to be taken.

22. In any event, the crucial consideration in deciding whether an application for extension of time for appealing should be granted and whether the process of an appeal should be allowed to continue is whether the appeal intended to be brought by the applicant has a reasonable prospect of success.

Appeal intended to be brought by applicant

23. HCAL 131/2013 originated from HCA 3803/2003 and CACV 221/2005, which was derived from HCA 3803/2003.  In those two cases, the applicant was respectively the plaintiff and the appellant, while Chan Tai Kuk was respectively the first defendant and the first respondent, and Lau Kam Chuan, who was the ex-husband of the applicant, was the second defendant and the second respondent.  Those two cases concerned a property situated at Hung Hay Building, Fa Yuen Street, Kowloon (“Fa Yuen Street property”).

24. In another case (HCMP 4061/1993), the court made an order which pronounced that Lau Kam Chuan owned one half of the interest in the Fa Yuen Street property.  In that case, Lau Kam Chuan also obtained a charging order, whereby a charge was imposed on the applicant’s half interest in the Fa Yuen Street property for the payment of a judgment debt proved in HCMP 4061/1993.  Later, an order for the sale of the Fa Yuen Street property was made in Lau Kam Chuan’s favour, which enabled him to sell the property.

25. The predecessor of HCA 3803/2003 is a Lands Tribunal case LDPD 1280/2003, which was transferred to the Court of First Instance in 2003 and became HCA 3803/2003.  In that case, the applicant sued Chan Tai Kuk for rent, mesne profits and vacant possession of the Fa Yuen Street property.  In addition, she alleged that Lau Kam Chuan illegally occupied the Fa Yuen Street property.  On the other hand, Lau Kam Chuan and Chan Tai Kuk each filed a counterclaim against the applicant.

26. On the application of Lau Kam Chuan, the Court of First Instance struck out the plaintiff’s Statement of Claim on 5 July 2005, and made an order that judgment be entered for the counterclaim of Lau Kam Chuan. At the same time, the court also ordered that judgment be entered for Chan Tai Kuk’s counterclaim.  The applicant appealed and the case became CACV 221/2005. On 16 May 2006, the Court of Appeal made the following order:

“ 1. The plaintiff Li Jing’s appeal against Yam J’s order dated 5 July 2005 whereby the claims she made against the second defendant Lau Kam Chuan were struck out be dismissed;

2. The plaintiff Li Jing’s appeal against Yam J’s order dated 5 July 2005 whereby judgment was entered for the second defendant Lau Kam Chuan in respect of the accounts be dismissed;

3. The plaintiff Li Jing shall pay the second defendant Lau Kam Chuan’s costs of this appeal (not including the costs of this appeal hearing);

4. The plaintiff Li Jing’s appeal against Yam J’s order dated 5 July 2005 whereby the claims she made against the first defendant Chan Tai Kuk were struck out and judgment was entered for the counterclaim of the first defendant Chan Tai Kuk be allowed, and the order be set aside; and

  5.   The first defendant Chan Tai Kuk shall pay that part of Li Jing’s costs of this appeal which involves him.”

27. The Court of Appeal gave in paragraphs 19 to 21 of the judgment the following explanation regarding paragraph 4 of the above order, i.e. the court’s decision in respect of Chan Tai Kuk:

“19. In respect of Yam J’s orders the only one which this court needs to vary is the order about entering judgment for the counterclaim of Chan Tai Kuk. When Lau Kam Chuan filed his summons, he at the same time asked the court to enter judgment for Chan Tai Kuk in terms of Chan Tai Kuk’s counterclaim, but such an application was only made by Lau Kam Chuan’s solicitor. The legal representative separately engaged by Chan Tai Kuk did not make the relevant application. If Chan Tai Kuk sought a judgment with such contents, he had to file the summons himself to ask the court to make the relevant order, but Chan Tai Kuk did not make such application.

20. Although Chan Tai Kuk personally attended the hearing on 5 July 2005, he could not obtain the judgment in question when he had not filed the summons. Therefore, the judgment of 5 July 2005 was only applicable to Lau Kam Chuan’s application.

21.  According to Yam J’s sealed order dated 5 July 2005, both Lau Kam Chuan and Chan Tai Kuk were successful in the action, but in the sealed judgment, judgment was entered for the second defendant only.  The solicitor acting for Lau Kam Chuan clarified this matter in writing on 4 May 2006, saying that he had never acted for Chan Tai Kuk.  In any event, this court set aside Yam J’s order that the part of Li Jing’s Statement of Claim which was directed against Chan Tai Kuk be struck out and also set aside Yam J’s order that judgement be entered for Chan Tai Kuk.”

28. On 17 September 2009, Yam J handed down his judgment in HCA 3803/2003 and made the following orders:

“1. All the remaining items of claim made by the plaintiff against the first defendant in this action be struck out and this action be dismissed;

2. The first defendant be allowed to withdraw his counterclaim against the plaintiff;

3. In respect of the claim and counterclaim made between the plaintiff and the first defendant, there be no order as to costs apart from the costs orders made previously; and

4. No further application in respect of this action shall be made by the plaintiff without first obtaining the leave of Mr Justice Yam of the Court of First Instance.

5.   The summons filed on 16 April 2009 be dismissed and in respect of which no costs order be made.”

29. On 18 June 2011, the applicant applied in court for filing an affidavit for applying for a writ of possession to repossess the Fa Yuen Street property on the basis of paragraphs 4 and 5 of the order dated 16 May 2005 [sic] made in CACV 221/2005, and she also claimed costs in the sum of $4,251 from Chan Tai Kuk.

30. Ms Ho, clerk to the Registrar, sent a letter dated 10 July 2013 to the applicant.  The contents are as follows:

“Re: HCA 3803/2003 and CACV 221/2005

Your application dated 18 June 2013 was dealt with by Registrar Mr K W Lung. The following is the direction/reply made by the Registrar on 10 July 2013:

‘1. We have received your application.

2.   The whole of this case has concluded.  You have not been granted with any court order for repossessing the subject premises.  In addition, pursuant to the restricted application order made by Mr Justice Yam, if you want to make any further application in this case, you have to obtain leave of the court.  You had not obtained leave of the court before you made this application, therefore the application you made on 18 June 2013 by way of filing an affidavit will not be entertained.’”

31. The applicant wrote to the Registrar on 12 July 2013 to object to his refusal to entertain her application for a writ of possession.  She sent a follow up letter on 20 August 2013.  Ms Ho gave her a reply on 23 August 2013 as follows:

“Re: HCA 3803/2003 and CACV 221/2005

Your applications dated 12 July 2013 and 20 August 2013 respectively were dealt with by Registrar Mr K W Lung. The following is the direction/reply made by the Registrar on 23 August 2013:

‘1. We have received your letters.

2.   It was clearly stated in the letter dated 10 July 2013 which we sent to you that if you wanted to make any further application in this case, you had to obtain leave of the court. For this reason, the court will not entertain or reply to any application which you made without first obtaining leave of the court.’”

32. On 3 September 2013 the applicant initiated the proceedings in HCAL 131/2013 to apply for leave to apply for judicial review in respect of Ms Ho’s reply letter dated 10 July 2013, and to apply for an order that the court bailiff shall enforce the judgment in CACV 221/2005 in her favour and that she was entitled to repossess the subject premises, and other reliefs.

33. On 9 September 2013, Au J dismissed her application.  The following are the reasons:

“ (1) The intended judicial review is aimed at the decision dated 10 July (‘the decision’), which was a judicial decision made by Registrar Mr K W Lung, but not a decision made by the intended respondent referred to in this application.

(2) In any event,

(a) The decision was a judicial decision, not a decision within the public law domain reviewable by judicial review;

(b) Even assuming that the decision can in principle be covered by judicial review, this application discloses no reasonably arguable ground in public law which can support the argument that the decision was:

(i) wrong in law, [or]

(ii) vitiated on the basis of Wednesbury unreasonableness or irrationality.”

34. The grounds of appeal put forward by the applicant in CACV 198/2013 can be summarized as follows:

(1)  Ms Ho usurped the name of the Registrar to post the letter;

(2)  The applicant applied to engage the court bailiff to repossess the subject premises on the authority of [the judgment in] CACV 221/2005, but Ms Ho arbitrarily included “HCA 3803/2003” in the reply letter, thus resulting in confusion and an infringement of her interests; and

(3)  Ms Ho, without any reason, delayed the processing of the applicant’s application for repossessing the subject premises, thereby adversely affecting the peace and comfort which the applicant enjoyed, since during this period there was serious leakage of water in the room rented by the applicant.

35. The applicant thought that on the authority of the Court of Appeal’s judgment in CACV 221/2005, she was entitled to repossess the subject premises from Chan Tai Kuk and to apply for a writ of possession for obtaining the possession of the Fa Yuen Street property.  She was wrong in taking this view.

36. In paragraph 4 of the order dated 16 May 2006 which the Court of Appeal made in CACV 211/2005, the court only allowed the applicant’s appeal against two orders, which provided that (1) her claims against Chan Tai Kuk be struck out; and (2) judgment be entered for Chan Tai Kuk’s counterclaim, and set aside the two orders.  The Court of Appeal’s order only preserved the claims which the applicant made in HCA 3803/2003 against Chan Tai Kuk, and at the same time the court ordered that the adjudication of Chan Tai Kuk’s counterclaim be proceeded with.  The schedule to Yam J’s order dated 17 September 2009 shows that part of the applicant’s claims against Chan Tai Kuk were already struck out respectively on 1 August 2007 and 11 April 2008.  According to paragraph 1 of the order, all the remaining items of claim made by the applicant against Chan Tai Kuk were also struck out.  In other words, all claims made by the applicant against Chan Tai Kuk had, at different times, been struck out.  The applicant’s claims all failed.  Just as what was stated in the court’s letter dated 10 July 2013, the applicant had not been granted with any court order for repossessing the Fa Yuen Street property.  There was no legal basis for the applicant to apply to the court for a writ of possession to engage the court bailiff to recover vacant possession of the Fa Yuen Street property from Chan Tai Kuk.

37. As for the letter dated 10 July 2013 mailed by Ms Ho, the clerk to the Registrar, it just relayed the direction given by the Registrar, i.e. the application made by the applicant on 18 June 2013 by way of filing an affidavit was not entertained.  As pointed out by Au J in paragraph (1) of his reasons for decision, this was a decision made by the Registrar, not by Ms Ho.  To have Ms Ho, the clerk to the Registrar, to send the letter to relay to the applicant the decision and the direction made by the Registrar has all along been the court’s practice.  The applicant’s allegation that Ms Ho usurped the name of the Registrar is unfounded.  Paragraph 2(a) of Au J’s reasons for decision stated that this decision was a judicial decision, and not a decision which could be reviewed by invoking public law and applying for judicial review.  This is correct and cannot be faulted.

38. The applicant complained that the subject of the letter dated 10 July 2013 should have only referred to CACV 221/2005, and should not have mentioned HCA 3803/2003, and her reason was that her application was made on the basis of CACV 221/2005.  As stated above, in CACV 221/2005 the Court of Appeal did not make any order for repossession directed against the Fa Yuen Street property or grant any relief which enabled the applicant to obtain possession of the Fa Yuen Street property from Chan Tai Kuk.  Moreover, CACV 221/2005 was derived from HCA 3803/2003.  Ms Ho did not do anything wrong when she set out these two cases side by side as the subject of the letter, nor did she, by so doing, create any confusion in the law or infringe upon the applicant’s interests; and it is out of the question that she had committed any unreasonable or irrational error.

39. As regards the complaint that Ms Ho, without any reason, delayed the processing of her application for repossessing the subject premises, it is devoid of any factual basis.  The crux of the matter is that the applicant was not granted with an order for repossession in CACV 221/2005. Her application for a writ of possession was without foundation.  It was not improper for the court to refuse to issue a writ of possession.  There was no harm done to the applicant. And there was no unreasonable or irrational error.

40. The foregoing analysis reveals that the grounds of appeal put forward by the applicant in CACV 198/2013 do not have any reasonable prospect of success.  Such being the case, to extend the time for appealing to allow her to proceed with CACV 198/2013 will be futile.

41. For the above reasons, we dismiss the application for extension of time for appealing.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P.Y. Lo, Barrister-at-law