HKSAR v. SETHI RAJINDER PAL SINGH t/a WORLD WIDE TRAVELS

HCMP 2540/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2540 OF 2006

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J U D G M E N T

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1. This is an application by Sethi Rajinder Pal Singh trading as World Wide Travels (“the Applicant”) for extension of time under Rule 9 of Costs in Criminal Cases Rules, Cap 492A, to institute and serve his Appointment to tax.  The Applicant does not specify whether he makes the application for extension under Rule 9(1) or Rule 9(2).  I treat it under both.

2. According to Rule 6(1), the Applicant had to lodge his claim for costs and files it with court before the expiry of 3 months’ period after the making of the costs order on 30 June 2006.  The time expired on 30 September 2006.  It is not disputed that there had been some negotiation between the parties within that period.  On 28 September 2006, 2 days before the expiry, the Respondent HKSAR made the last counter-offer, which I understand, was “far from substantive and therefore was unacceptable”.  Since then, there was no further negotiation.

3. The Applicant filed the present application on 1 December 2006, two months after the expiry of statutory period.  In the affirmation of Yu Shiu Ming in support, the only reason given is found in paragraph 10 which states:

“10. Since the costs order was made on 30^th June 2006 and the offer of settlement was only put forward by DOJ on 28^th September 2006, there was insufficient time for the preparing an itemized bill of costs for taxation proceedings.”

At the hearing before me Mr. So of counsel for Applicant further submitted that the extension will not cause any prejudice to the Respondent in raising objection to any item of the bill.  It is not a long delay.

4. What Mr. So has said is correct but this is not what the law requires me to consider.  Rule 9(1) states as follows:

“(1) Subject to subrule (2), the time limit within which there must be made or instituted a claim for costs by a claimant under rule 6, … can on application, for good reason, be extended by the taxing authority.”

5. The Rule requires the Applicant to provide “good reason” before extension is granted.  I do not find the following are good reasons: there had been negotiation, the negotiation did not break down until 2 days before the expiry giving no time to prepare a detail itemized bill for taxation and there will be no prejudice to the Respondent’s position.

6. The Applicant has been legally represented by a solicitor firm.  They are supposed to know the law and to protect the interest of the Applicant.  It is not the Applicant’s case that they were misled by the Respondent that the negotiation would soon be concluded and for that reason they did not prepare an itemized bill.  Even if it were so, they should immediately make an application for extension of time after the breakdown of the negotiation.  It seems to me that the Applicant has only one reason as stated in paragraph 10 of the Affirmation in support: they had no time to prepare the bill.  This is not a good reason.

7. After I had indicated to Mr. So that there was no evidence explaining the two months’ delay, he told me that during the period those instructing him moved office from the address “Room 1915, 19^th Floor, North Tower, Concordia Plaza, No. 1 Science Museum Road, Kowloon, Hong Kong” to the present one at “Room 1601, 16^th Floor, Grand Centre, No. 8 Humphreys Avenue, Kowloon, Hong Kong”.  The fact is not disputed as the documents filed in court bear this out.

8. This definitely is not a good reason under Rule 9(1) for failing to file and institute the claim within the 3 months’ period.  Before October 2006, the solicitor firm still stayed at the former address.  They should have prepared the costs claim and filed it with the court.  They had not done so.  It may be an oversight on the part of the solicitors.  I cannot regard it as a good reason for the extension of time.

9. As I would not grant extension under Rule 9(1) for lack of “good reason”, then I have to consider whether the Applicant can invoke Rule 9(2) which states:

“(2) Where a claimant, … without good reason has failed, or, if an extension were not granted, would fail, to comply with a time limit of the description mentioned in subrule (1), the taxing authority can on application, in exceptional circumstances, extend the time limit for a further period not exceeding 21 days.”

10. By “exceptional circumstances”, I use its ordinary meaning “very unusual”.  I do not consider the move of office as “very unusual”.  The move is not related to the claimant himself but to the private reason of the claimant’s solicitor.

11. Ms. Lam, Senior Government Counsel, refers to the case of R v North Kent Justices, ex parte McGoldrick & Co, 160 JP 30, the Independent on 6 February 1995, unreported, where Shiemann J, Queen’s Bench, considered and decided on the same point “exceptional circumstances”.  At page 2, he said, ‘The “exceptional circumstances” referred to in that paragraph must relate to something other than explanations for failing to submit the applications in time.’

12. He gives his reasons in the paragraphs following:

“ Regulation 12(1) on the face of it applies both to applications within and outwith the three-month time limit.  If procedurally unmeritorious cases can be considered outside the three-month limit, then there is no reason to impose a more restrictive regime on those which are procedurally more meritorious, the more so since the opening words of para 2 preclude the procedurally more meritorious cases from being considered under that paragraph.  It follows that in the case of an application made after the expiry of the three-month limit, nothing in para 12(1) prevents the time limit from being extended for good reason.  That good reason needs to relate to the question: “Why was the application not made within three months?”

   Regulation 12(2) is, as the opening words make clear, not concerned with the question of why a delay occurred.  It is concerned with whether there are exceptional circumstances which should lead the decision-making body to extend the time, notwithstanding that there was no good reason for the delay …”

13. I do not intend to make a ruling on that point as I have not heard the argument from the Applicant.  For the purpose of this judgment I do not take the view of Shiemann J on board, the Applicant submitted the following matters for me to consider:

“ (1) we have moved once since our firm’s establishment in 2000;

(2) most of our manpower was tied up in locating a new place; designing layout and arranging decoration for new office; close watching on the progress of decoration so as to meet the date scheduled to move; choosing furniture; cleaning up after decoration; packing up and moving all files, equipments, machines, etc. during the relevant period;

(3) as our Counsel submitted during the hearing that it would be too harsh to the claimant, in this first application, to be denied taxation; and

(4) contrary to the cited case of HKSAR v Ko Hon Kwan and Yuen Ng Fung in which the Claimant failed to apply for leave before filing of taxation bill, we did properly take out the application for extension of time first.”

14. I do not know what is the significance of point (1).  It means that 6 years ago the solicitor firm had moved their office once.  This is the 2^nd time.  I cannot see how it will help to advance his argument.

15. Point (2) tells us a lot of the matters that the solicitor firm had to attend to for the move, and their attention had been diverted from normal legal work.  As I have stated, this oversight cannot be regarded as a “good reason”.  Neither do I think it proper to treat it as “exceptional circumstance”.

16. Point (3) stated that it would be too harsh to the claimant who applied for extension for extension for the first time.  In ordinary cases of extension of time for filing of document with court, the law does not specify under what conditions the court should make the order.  In Rules 9(1) and 9(2), it has been clearly spelt out that there must be “good reason” or “exceptional circumstance”.  I have to follow the rule and I have no power to waive it.

17. As to whether it is too harsh to the claimant, I do not think so.  If the solicitor firm is found to be negligent, the claimant Applicant could have his redress in a different way.

18. I accept the circumstances in the case of HKSAR v Ho Hon Kwan and Yuen Ng Fung, FLCC 2403 of 1999, unreported, cited by the Respondent are quite different.  But, it does not mean that the court has to grant leave because of that.  I accept that in that case the Department of Justice for the Respondent had at least twice reminded the applicant of Rule 6 but in this case none whatsoever.  The applicant in that case just simply filed the bill for taxation without applying for extension of time.  I accept that these are distinguishable matters.  At that time, the Rules were in place for 3 years.  Now it has been 6 more years down the road.  The legal practitioners should be fully aware of the legal consequences resulting from the failure.

19. For the reasons stated above, I find no “good reason” or “exceptional circumstances” in this case that justifies the court to grant an extension of time.  Accordingly, I dismiss the application with the following costs order nisi:

(a) Costs be to the Respondent HKSAR assessed by me in the sum of $12,500; and

(b) This order shall be made absolute 14 days after receipt of this judgment unless application is made in writing to vary this order.