CHEUNG KWONG YUEN v. SUN HUIFANG

HCMP 3306/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3306 OF 2014

(ON AN INTENDED APPEAL FROM LDPD NO. 1740 OF 2014)

________________________

________________________

JUDGMENT
________________________

Hon Kwan JA (giving the judgment of the court):

1.  We have before us two applications. The application first in time is that of Cheung Kwong Yuen (the applicant) to lift an order for stay of execution pending appeal on the ground that Sun Huifang (the respondent) has failed to file and serve a Notice of Appeal within seven days of the granting of leave to appeal. The other application is that of the respondent for time to be extended to five days from the date of the order to be made for her to file and serve a Notice of Appeal.

2.  The applications arose in this way.

3.  On 30 January 2015, we granted leave to the respondent to appeal against a decision of the Lands Tribunal with stay of execution of the judgment pending appeal.  Both parties were acting in person.  Annexed to the respondent’s summons seeking leave to appeal was a draft Notice of Appeal dated 22 December 2014.  In our judgment, which is in Chinese, we ordered the respondent to file and serve a Notice of Appeal within seven days of our judgment.

4.  The respondent should have filed and served a Notice of Appeal on or before 9 February 2015.  This was not done, so the applicant filed his summons on 13 April seeking leave to lift the stay of execution and to enforce the judgment below.

5.  The respondent filed an affirmation to explain why she has not complied with the court order.  The applicant, who has legal representation since February 2015, has not filed any evidence in reply pursuant to leave granted by the court.  The respondent’s account of the facts is not disputed by the applicant.

6.  The respondent has received primary education in the Mainland and came to live in Hong Kong ten years ago.  She applied for legal aid on 24 December 2014 to pursue her application for leave to appeal but was informed that her application was refused on 27 January 2015.  She attended the hearing on 30 January 2015.  After judgment granting leave was pronounced, she said she was handed a document by the court’s clerk and was told she should deliver it to the applicant.  She did not know what the document was and did as told by inserting the document into the letter box of the applicant in the afternoon of 30 January.  She was told by a friend that the police came to her premises to look for her in the evening as a complaint was lodged against her that she had damaged the letter box of the applicant.

7.  She lodged an appeal on 4 February 2015 against the refusal of legal aid and her legal aid appeal was scheduled for hearing on 7 May 2015.

8.  She explained that after she had delivered the document to the applicant, she thought she was not required to do anything regarding her appeal until after her legal aid appeal was heard on 7 May.  She understood if she was granted legal aid, her appeal would be handled by a lawyer, and if her legal aid appeal was dismissed, she would need to conduct the appeal on her own.  It was only when she received a letter from the applicant’s solicitors on 23 April 2015 about the hearing of the present summons that she sought legal advice from the solicitors now representing her.

9.  Although the delay in filing and serving the notice of appeal of more than two months is not insubstantial, we find it excusable given the circumstances.  There is no evidence to substantiate the suggestion made by the applicant’s counsel that the respondent has delayed serving the Notice of Appeal on purpose because she knew her chance of success on appeal is slim.

10.  The applicant’s counsel made submissions at some length on the merits of the appeal, citing Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125 at 132F that the prospect of the intended appeal should be considered in the respondent’s application to extend time to file and serve the Notice of Appeal.  The merits of the intended appeal have been considered when we decided to grant leave to appeal on 30 January.  We see no reason to revisit the merits for present purpose, and it is a waste of time and effort to ask the court to do so.

11.  We also reject firmly the contention advanced by respondent’s counsel that the draft Notice of Appeal annexed to the respondent’s summons seeking leave to appeal could be regarded as an informal notice of appeal and she has therefore complied with our order to file and serve a Notice of Appeal.  By no stretch of imagination could that document be treated as a Notice of Appeal, whether formal or informal.

12.  We would grant one last opportunity to the respondent to file and serve a Notice of Appeal, but we would not tolerate any further delay in the prosecution of the appeal.  We grant her leave to file and serve a Notice of Appeal out of time by tomorrow.  The respondent’s counsel has undertaken to the court that his solicitors would write to the court by this Friday to apply to set down the appeal.  The stay pending appeal will remain.  We dismiss the applicant’s summons.

13.  We will hear the parties on costs.