LEUNG MOON CHEUNG v. ATTORNEY GENERAL and Others

IN THE COURT OF APPEAL

1997, No. 4

(Small Claim Appeal)

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J U D G M E N T

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Ching J.A. (delivering the judgment of the Court) :

1. The claimant was prosecuted upon a charge of indecent assault of a woman and was acquitted but was denied his costs. That occurred on 30th November, 1995. He then made some other application to the Magistrate, presumably in relation to those costs, but he did not appear when it came on for hearing on 12th January, 1996, and it was dismissed. At some time after his acquittal he issued proceedings in the Small Claims Tribunal against three defendants. They are, first, the Attorney General, secondly, the Commissioner of Police and, thirdly, a woman who is not the woman upon whom the assault was allegedly perpetrated but a woman police officer who, he told us, had 'concerted' her evidence with someone else. The record of the proceedings before the Magistrate do not show that the third defendant gave evidence in those proceedings. We have not been shown any of the pleadings. The Adjudicator understood them as being a claim for malicious prosecution against the first two defendants although the claimant disagreed. Just what he says his claim is for is not apparent. On 11th February, 1997, after a hearing the Adjudicator exercised his discretion under section 7 of the Small Claims Tribunal Ordinance, Cap. 338, and ordered that the proceedings be transferred to the District Court notwithstanding the claimant's objection. This is now the claimant's application to review that order of transfer under section 27 of the Ordinance.

2. The claimant faces two difficulties. The first is that in ordering the transfer the Adjudicator was exercising a discretion. It is for the claimant to show that that exercise was wrong to the extent that we would be able to interfere. In the circumstances that has not been shown. The second is that the time limited for an application to this Court under section 27(2) is seven days after the making of the order of transfer. That order was made on 11th February, 1997, and the application to us was made on 22nd February, 1997, so that it is out of time. Then by section 27(1) this Court has jurisdiction to review such an order but only if the application is heard within 14 days of the transfer order being made. That time has been well exceeded.

3. Before us, Ms. Lam who appears for the Defendants appreciated the difficulties that could be caused to the claimant if his claims were to be heard in the District Court. She took a neutral stance in relation to this application for review. However, even if we were minded to interfere it is quite clear that this Court has no jurisdiction because the time limits provided under section 27(1) have not been complied with.

4. In these circumstances the application for review is dismissed.