THE JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF SO CHING WAN v. ASSEN LTD (IN LIQUIDATION) AND OTHERS

CACV 306/2019

[2025] HKCA 653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 306 OF 2019

(ON APPEAL FROM HCB 4475/2002)

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D E C I S I O N

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1.  On 5 December 2024, I dismissed two applications made by the applicant. The two dismissed applications were (1) the applicant’s application to review a Master’s review on the taxation of an allocatur in respect of a bill of the 2^nd to the 4^th respondents (“the Review Summons”), and (2) the applicant’s application for a stay of certain costs order (“the Stay Summons”): see [2024] HKCA 1189.

2.  On 13 January 2025, the applicant took out a summons to only ask for leave to appeal out of time against my decision of 5 December 2024 dismissing the Stay Summons. On 17 March 2025, I dismissed that extension of time application: see [2025] HKCA 314. As recorded in my decision at [6] and [7], the applicant on that occasion did not seek leave to appeal against my dismissal of the Review Summons, and the applicant’s former counsel expressly confirmed the same to the court during the hearing on 17 March 2025.

3.  On 26 May 2025, the applicant took out the present application to ask for leave to appeal out of time against my decision of 5 December 2024 dismissing the Review Summons. This application is supported by the 6^th affirmation of Alan C W Tang filed on behalf of the applicant. In that affirmation, Mr Tang exhibited a letter from the clerk to Kwan VP dated 14 May 2025 directing, amongst other things, that unless the applicant files with the Court of First Instance a summons for extension of time against the dismissal of the Review Summons by 28 May 2025, paragraph 1 of the applicant’s notice of appeal in CACV 7/2025 would be struck out. It therefore appears that the present application for leave to appeal out of time against my dismissal of the Review Summons was taken out as a result of the unless order made by the learned Vice President.

4.  There is no dispute between the parties on the applicable principles to be applied. In considering whether time should be extended for the purpose of applying for leave to appeal, the court should conduct a discretionary balancing exercise by taking into account relevant circumstances such as the length and reasons for the delay, the merits of the intended appeal and the prejudice to the winning party if the time extension is granted: see Lee Chick Choi v Best Spirits Co Ltd (unreported, HCMP 371/2015, 21 May 2015) [19] (Kwan JA).

5.  To support the present time extension application, Mr Felix Tang, the applicant’s counsel, submits that (1) the delay is excusable and not substantial, (2) there are reasonable prospects of success in the proposed appeal and (3) there is no prejudice to the 2^nd to 4^th respondents if leave is granted.

6.  I reject these submissions.

Delay

7.  I dismissed the applicant’s Review Summons on 5 December 2024 by giving an ex tempore decision at the conclusion of the hearing.

8.  It appears to be common ground that my dismissal of the Review Summons was an interlocutory order. Therefore, leave to appeal must be obtained before the applicant lodges an appeal to the Court of Appeal. Under RHC O.59, r.2B(1), the applicant should have made the application for leave to appeal to the Court of First Instance within 14 days from the date of the order sought to be impugned. In other words, the applicant should have made the application for leave to appeal to the Court of First Instance on or before 19 December 2024. This was not done. It was only on 26 May 2025 when the applicant took out the present summons to ask for an extension of time to make an application to this Court for leave to appeal.

9.  On behalf of the applicant, Mr Felix Tang submits that the delay was only four days. He asserts that time should run from the date when the relevant court order was sealed on 3 January 2025 until the date when the applicant filed the notice of appeal in CACV 7/2025 on 6 January 2025. He further argues in the alternative that the delay is not substantial. I note that Mr Alan Tang advances the same contentions in his 6^th affirmation.

10.  In my view, the applicant’s submissions are wholly without substance and involve a plain disregard of the relevant procedural rules.

(1)  As recorded in my decision of 17 March 2025 at [3], [4] and [12], I gave fairly detailed reasons for dismissing the applicant’s applications (including the Review Summons) at the hearing on 5 December 2024, and the applicant’s solicitors and former counsel were physically present in court when I did so. My ex tempore decision was then uploaded onto the judiciary website on 27 December 2024. It is disingenuous to suggest that without the typed-out version of my ex tempore decision, the applicant “would be put in a difficult position to consider the substantive merits of a possible appeal”.

(2)  Mr Tang refers to a sentence from Hong Kong Civil Court Practice at [5232] when the learned editors state that “the court should be lenient in granting extensions of time to appeal where the delay is attributable to reasons being given only after a judgment or order is pronounced”. However, as the context of the statement makes clear, the situation envisaged by the learned editors is that the court’s judgment or order is pronounced at the end of the hearing with reasons to be given at a later date. This statement is wholly inapplicable when the court pronounces a judgment or order at the same time as giving its full reasons in the presence of the party’s solicitors and counsel.

(3)  RHC O.59, r.2B(1) expressly provides that an application for leave to appeal may be made to the Court of First Instance “within 14 days from the date of the judgment or order”. It is plain that the date of the judgment or order is to be reckoned from the date when the judgment or order is made, and not when it is sealed or published on the judiciary website. It follows that there is no basis for the argument that the date should run from 3 January 2025, i.e. the date when the relevant order was sealed.

(4)  Further, RHC O.59, r.4(1)(a) provides that a notice of appeal must be served within 7 days after the date on which leave to appeal is granted in the case where leave to appeal to the Court of Appeal is required under section 14AA of the High Court Ordinance. Given the common ground that leave to appeal is required to appeal against my dismissal of the Review Summons, it follows that the applicant’s filing of the notice of appeal in CACV 7/2025 on 6 January 2025 was an irregular step, as it was done without first obtaining leave to appeal. It is therefore misconceived for the applicant to argue that the delay period ended on the filing date of an irregular document.

(5)  In any event, the applicant was fully aware that no application for leave to appeal out of time had been made when the applicant came before this Court on 17 March 2025. As mentioned earlier, the applicant on that occasion did not seek to appeal against my dismissal of the Review Summons, and the applicant’s former counsel expressly confirmed the same to the court. In his 6^th affirmation filed to support the present application, Mr Alan Tang has failed to explain why he made no decision to ask for leave to appeal out of time against my order to dismiss the Review Summons in March 2025, and waited until 25 May 2025 when the present summons was taken out after the making of the unless order by Kwan VP.

11.  Accordingly, it is my view that the applicant’s delay of over 5 months is substantial and is wholly inexcusable.

Merits of the Proposed Appeal

12.  Where a delay is inexcusable although insubstantial, a party seeking an extension of time must show a real prospect of success on the merits: see KNM v HTF (unreported, HCMP 288/2011, 7 September 2011) [19] (Fok JA), following Secretary for Justice v Hong Kong & Yaumati Ferry Co. Ltd [2001] 1 HKC 125 at 129I (Le Pichon JA).

13.  In the light of my view that the applicant’s delay is both inexcusable and substantial, the applicant must show that the proposed appeal has a real prospect of success on the merits.

14.  In his 6^th affirmation filed to support the application, Mr Alan Tang exhibited the applicant’s notice of appeal in CACV 7/2025. Of the various grounds in the notice of appeal, Mr Felix Tang only deals with the “indemnity principle” in his written submissions. He argues that this court (1) erred in law by not applying the “indemnity principle” and (2) wrongly ordered costs on an indemnity basis without reference to any special circumstances of any unusual conduct of the applicant.

15.  I am unable to see how the applicant can demonstrate a real prospect of success on the merits of these contentions.

(1)  As far as the “indemnity principle” is concerned, this court’s function in an application for review under RHC O. 62, r.35 was not to approach taxation on a de novo basis. The proper approach was stated in my decision of 5 December 2024 at [15], which the applicant did not dispute. Further, as recorded in [19] of my decision, the applicant failed to explain how the learned master was wrong in law in following the “indemnity principle”. Without even attempting to explain why this court is said to be wrong in law in [19] of my decision, I fail to see how the applicant can show a real prospect of success in the proposed appeal.

(2)  As to the indemnity costs order, that was made as a result of the court’s acceptance of the submission of the 2^nd to 4^th respondents that the Review Summons completely lacked merits which was brought about by the applicant’s conduct. The applicant cannot in my view demonstrate a real prospect of success that the court’s discretion was wrongly exercised on 5 December 2024.

Prejudice to the Respondents

16.  As far as prejudice to the 2^nd to 4^th respondents is concerned, I reject the applicant’s submission that any possible prejudice is minimal in nature. Similar to what was said at [18] of the decision on 17 March 2025, it is self-evident that to allow the applicant an extension of time to apply for leave to appeal against my decision will further delay the payment of costs by the applicant to the respondents, which will obviously amount to prejudice.

17.  For the reasons that I have given, there is absolutely no merit in the application for extension of time to apply for leave to appeal. The applicant’s summons dated 26 May 2025 is dismissed. I will now hear the parties on costs.

(Discussion re costs)

18.  Having heard the parties’ submissions, I consider that it is appropriate to exercise my discretion and order indemnity costs against the applicant. The bases for ordering costs on an indemnity basis are (1) the applicant has brought the present application in plain disregard of the relevant procedural rules and (2) such conduct has resulted in delay and unnecessary burden on the court.

19.  I make a slight reduction on items C4 and D2 of the Statement of Costs and summarily assess the 2^nd to 4^th respondents’ costs at $88,000.