PETER PO FUN CHAN v. WINNIE C.W. CHEUNG AND ANOTHER

HCAL162/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.162 OF 2005

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DECISION

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1.  The applicant applies for an extension of time to appeal against my decision refusing him leave to apply for judicial review.  The respondents oppose the application.

2.  At the hearing on 6 March 2006, I refused the applicant’s application for extension of time to appeal against the refusal of leave to apply for judicial review and gave oral reasons for so doing.  I now reduce the reasons into writing.

Events after the decision on the leave application

3.  The decision refusing leave was handed down on 6 March 2006.  Under order 59 rule 3(4) of Rules of the High Court, appeals against refusal of leave must be brought within 10 days after the decision.

4.  In view of the submissions made by the applicant in support of his application for extension of time, it is necessary to set out the events subsequent to the handing down of the Decision and, in particular, the correspondence exchanged between the applicant and the court.

5.  On 9 February 2006, the applicant wrote to the court in these terms:

“On 6^th February 2006 afternoon, I received from you in person a copy of the learned Chu J’s decision.  I am diligently studying it and may seek advice.

Now JSM sent me a bill suggesting a cost of $165,000 which is astronomical and thus unreasonable, and further I think that the Institute Registrar made a wrong decision which makes my lawful report unlawful;, this forcing me to seek protection and direction from the court.

If I am minded to lodge an appeal to the Court of Appeal, may I know how to obtain a sealed order from the Court and within what time limit that I may appeal.

If the Decision is handed down by her Ladyship, I would request permission to ask the question on the time limit for appeal.

May I thank you for your kind attention.”

6.  The court replied on the same day as follows:

“I refer to your letter by fax dated 9 February 2006.

On the time limit for appealing against the refusal of leave, it is governed by Order 53 rule 3(4) of Rules of the High Court, which provides:

‘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 10 days after such order.’

For the purpose of obtaining a sealed order, a party should prepare a draft of the order and send it to the judge’s clerk for approval.  The approved order should then be presented to the Registry for sealing and filing.

Please note that under Order 53 rule 3(4), it is not necessary to seal the order of the court refusing leave, before lodging an appeal.

Please also note that you should copy your letter to the respondents if you need to correspond with the court.”

7.  The applicant wrote another letter dated “Thursday, February 11, 2006”.   11 February 2006 was a Saturday and the letter was received by the court via fax on Sunday, 12 February and only attended to on Monday, 13 February 2006.  The applicant’s letter states the following:

“May I refer to your letter of 9^th February 2006, advising me kindly about the time for lodging an appeal --- it will 10 days from date of Order.  I feel, if I may say so, aggrieved by her Ladyship’s judgment and I try to seek advice.  I have very sad experience in seeking counsel over the years.

As my application for restoration will be hopefully determined in the Council meeting of the Institute to be held on 1 March 2006 and such determination may “overtake” (or otherwise affect) what I am going to submit in appealing to the Court of Appeal and to save time and costs, may I have her Ladyship permission to file my appeal, if any, within 10 days after 1 March 2006.

By a copy of this letter to Mr Hunsworth, I am seeking the consent of the Respondents.

May I also report to you that JSM has kindly agreed to prepare the sealed copy of her Ladyship’s Order.”  

8.  The court replied on 13 February 2006 as follows:

“I refer to your letter by fax dated “Thursday, 11 February 2006”, which reached the court on Sunday, 12 February 2006 and could only be read today.

In respect of the first paragraph of your letter, please note that Order 53 rule 3(4) of Rules of the High Court provides for the time to appeal against refusal of leave to apply for judicial review to be "within 10 days after such order".

In respect of the second and third paragraphs of your letter, The Honourable Madam Justice Chu had today made the following directions:

‘1.  I treat the applicant’s letter as an application for extension of time for serving notice of appeal made under Order 59 rule 15 of Rules of the High Court.  The issue of a summons is dispensed with.

2.   An application for extension of time is an inter partes application. 

3.   The applicant should approach the Listing Officer to fix a date for hearing his application and should notify the respondents of the date fixed.’

Paragraph 4 of your letter is noted.

Please take note of the above directions and proceed accordingly.”

9.  By letter dated 13 February 2006, the respondents’ solicitors informed the applicant, inter alia, the respondents “do not consent to any extension of time to appeal.  [The respondents] do not consider there are any valid grounds of appeal and see no reason why the usual time limit should not apply.”

10.  Subsequently, the application for extension of time was listed for 6 March 2006.

11.  Then by letter dated 27 February 2006, the applicant wrote to the court as follows:

“May I invite you to report to her Ladyship that my Notice of Appeal with grounds etc. is now ready.  May I seek permission to file it in the usual way (JSM has not yet given me the sealed copy of the Order).

As the extension of time is no longer required and on filing, may I seek her Ladyship’s permission to vacate the date of hearing on 6 March 2006 to save the Court’s time.  My appeal to the Court of Appeal will then run its normal course.”  

12.  By then, the time for appealing against the decision refusing leave had already expired.  Accordingly, I caused my clerk to write to the applicant on 28 February 2006, pointing out that the time for appealing against the Decision had expired and requested him to confirm whether he wished to vacate the hearing on 6 March 2006.

13.  The applicant replied by letter dated 28 February 2006 that he would attend the hearing as listed. 

14.  On the basis of the reply, I directed that the hearing date to remain and the applicant and the respondents were duly notified of the direction.

Reasons for decision

15.  Under Order 59 rule 15(1) of Rules of the High Court, the Court of First Instance has power to extend the time for serving Notice of Appeal if the application for time is made before the expiration of the prescribed period.  In the present case, as indicated in the court’s letter dated 13 February 2006, the applicant’s letter dated 11 February 2006 was treated as an application for extension of time made under Order 59 rule 15(1).

16.  The power to extend time is discretionary.  In exercising the discretion, the Court generally has regard to two matters.  The first is the reasons for the delay and the prejudice on the responding party.  The second is the potential merits or the prospects of the intended appeal.

17.  In the present case, the applicant explains the delay on two grounds.  Firstly, the applicant says he has been waiting for the outcome of his application to be restored to the Register of Professional Accountants.  The deliberation of the Council of the Institute has not been completed. Secondly, the applicant says he has been misled by the Court as the Court did not inform him that he must lodge his appeal within 10 days.  Had he been so told, he would and could complete and serve the Notice of Appeal within the 10-day period.

18.  I accept that the delay in this case is not serious. However, I am of the view that the applicant’s explanations for the delay are not satisfactory.  In respect of the first explanation, he was aware from the outset that the earliest time the Council could come to a decision would be 1 March 2006.  By then, the 10-day appeal period would have run out.  It is incumbent upon the applicant to make up his mind whether to pursue the appeal irrespective of the outcome of the Council’s decision.  This is particularly so when the respondents had made it plain that they would not consent to an extension to await the Council’s decision.

19.  As to the second explanation, the court’s replies to the applicant make it clear that the time for appealing against the refusal of leave is 10 days after the order.  The applicant’s attention was further drawn to the fact that the application for extension of time was inter partes and he was directed to fix a date for hearing the application.  The applicant cannot be left in any doubt as to the time for appeal prescribed under Rules of the High Court.  He must also be aware from the court’s replies that the court has yet to hear and adjudicate on his application for extension of time.  The letter from the respondents’ solicitors dated 13 February 2006 serves to emphasize the point.  The applicant has no basis to think that he is at liberty to depart from the requirement on time prescribed by the statute.  He also has no basis to think or expect that the court would grant the extension.  His complaint that the court did not inform him that he must serve his notice of appeal within the 10 days period has no substance.  If, as he says, he could in fact have completed the Notice of Appeal within the 10-day period, then he should have proceeded to do so and launch the appeal promptly and timely.

20.  The fact that there is no satisfactory explanation for the delay is not conclusive of the matter.  I also accept that the respondents have not pointed to any prejudice caused by the delay.  What must also be considered is the prospect of the intended appeal.

21.  The applicant has prepared a Notice of Appeal with lengthy grounds of appeal.  The bulk of the arguments had already been raised at the hearing on the leave application.  They had also been considered and dealt with in the Decision refusing leave.  It is clear from my Decision what my views on these arguments are.

22.  That aside, it must not be forgotten that the test for granting leave to judicial review is whether the materials before the court have disclosed matters which on further consideration might demonstrate an arguable case for the grant of the relief sought: Ho Ming Sai & Others v. Director of Immigration [1994] HKLR 21.  There is one important aspect underlying the Decision refusing leave, namely, independent of whether the grounds for judicial review are arguable, there is no prospect of the applicant obtaining any relief under the grounds he has put forward: see paragraphs 30-32 and 37of the Decision.  The applicant’s grounds of appeal has not addressed this issue of his intended judicial review having become academic and futile, such that the court in its supervisory and discretionary jurisdiction would not have granted relief. It follows in my view that the prospect of a successful appeal is dim.

Conclusion

23.  For the reasons set out above, I consider that the discretion should be exercised against extending the time to appeal.  Accordingly, the applicant’s application is dismissed.

Costs

24.  The respondents ask for the costs of the application.  The applicant offers to pay half of their costs, contending that the respondents were partly to be blamed.   I can see no reason for departing from the normal rule of costs follow event.  There is therefore an order that the applicant pays the respondents the costs of this application, to be taxed if not agreed.