HCMP 1036/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 1036 OF 2009
(ON AN INTENDED APPEAL FROM HCA 928 OF 2007)
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BETWEEN
SECRETARY FOR JUSTICE
Plaintiff
and
CHONG KUI (GROUP) COMPANY LIMITED
Defendant
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Before : Hon Cheung JA in Chambers
Date of Hearing : 25 June 2009
Date of Decision : 8 July 2009
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D E C I S I O N
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1. This is the defendant’s application for extension of time to appeal against the judgment of Deputy High Court Judge Louis Chan dated 9 February 2009 when he gave judgment for the plaintiff and dismissed the defendant’s counterclaim. The judgment was sealed on 30 April 2009.
The relevant factors
2. The Court will take into account the following four factors in deciding whether extension of time should be granted :
(1) the length of the delay;
(2) the reasons for the delay;
(3) the merits of the proposed appeal; and
(4) prejudice to the plaintiff, if any, if extension of time is granted.
(1) Length of the delay
3. The defendant had 28 days to appeal from the date of the sealing of the judgment on 30 April 2009. The appeal period expired on 29 May 2009. The defendant lodged the present application on 4 June 2009. This is not a lengthy delay.
(2) The reason for the delay
4. The defendant is a limited company. Mr. Ma Fei Hong馬飛雄(‘Mr. Ma’), the general manager of the defendant was given leave to represent it in the Court below. After the judgment was given Mr. Ma was advised by the Court staff that he would require leave from the Court to act for the defendant if he wished to pursue an appeal for the defendant. On 22 May 2009 he applied for leave to represent the defendant in the appeal. The application was rejected. He renewed the application a number of times and it was only on 3 June 2009 when he was granted leave to act for the defendant. He lodged the present application the next day.
5. In my view, the defendant has given a reasonable explanation for the delay.
(3) Merits of the appeal
6. The plaintiff brought the claim on behalf of the Department of Government Logistics which had entered into a contract with the defendant on 12 May 2004 for the defendant to supply and install a floating barrier (‘the barrier’). The barrier was to be used by the Hong Kong Marine Police to stop smugglers using high speed crafts to carry out the smuggling of goods. The barrier was to be installed at the entrance of Tolo Harbour.
7. The defendant supplied and installed the barrier in August and September 2004. The Government found that the barrier was not built in accordance with the contractual requirement in that it could not withstand the wind speed specified by the contract and in fact it was damaged at a much lower wind speed. Despite the Government’s requests to the defendant to carry out remedial work the defects were not remedied.
8. By letter dated 15 March 2005 the Government notified the defendant that the barrier was rejected and the contract was terminated. It requested the defendant to remove the barrier. It was not acceded to by the defendant. The Government then engaged another contractor to remove the barrier. The Marine Police has since installed a temporary barrier to replace the defendant’s barrier.
9. The plaintiff lodged a claim seeking damages for breach of contract. The defendant counterclaimed for the purchase price of the barrier.
10. The Judge made the following essential findings :
(1) The barrier was not built in accordance with contractual stipulation.
(2) There was no acceptance of the delivery of the barrier by the Government on 27 September 2004.
(3) The Government had properly rejected the barrier pursuant to the terms of the contract.
11. The first two findings are findings of fact while the third finding is a finding based on facts and on the interpretation of the terms of the contract. In my view, the defendant has failed to show that it has a reasonable prospect of success on appeal against these findings.
12. In terms of damages awarded to the plaintiff by the Judge he only allowed two claims namely,
(1) the costs incurred to dismantle the barrier at $150,000; and
(2) the costs for the disposal of the barrier which was estimated at $500,000. The judge ordered that there should be an assessment of this item.
13. The judge further gave credit to the defendant for the deposit of $104,333 paid by him under the contract. In my view, the defendant has also failed to show that it has a reasonable prospect of success on the appeal on damages.
(4) Prejudice to the plaintiff
14. This point does not call for consideration in this application.
Conclusion
15. As the defendant fails to show that it has a meritorious appeal, I would refuse to grant extension of time to appeal.
Costs
16. The defendant is to pay the plaintiff the costs of the application.
(Peter Cheung)
Ms Jennifer Tsui, instructed by Department of Justice for the Plaintiff
Defendant, represented by Mr. Ma Fei Hong, in person, present
Appeal by defendant to Court of Appeal dismissed. Please refer to HCMP1036/2009 dated 5 October 2009