DING YONG v. SONG LIHUA AND OTHERS

HCA 1543/2014

[2018] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1543 OF 2014

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J U D G M E N T

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1.  On 26 June 2018, this Court handed down a Judgment in favour of the Plaintiff for the sum of RMB5 million against the 1^st to 4^th Defendants after a 3‑day trial.

2.  The time limit for appealing the Judgment to the Court of Appeal is 28 days from the date of the Judgment ie 24 July 2018: RHC O 59 r 4(1)(c).  No proper Notice of Appeal was served on the Plaintiff within time in accordance with the requirement of RHC O 59 r 3(5).

3.  There is before this court a summons dated 26 July 2018 issued by the 1^st Defendant seeking inter alia:

(1)   At paragraph 1, an extension of time to file and serve a Notice of Appeal on the Plaintiff.

(2)   At paragraph 2, a stay of execution of the Judgment.

4.  As far as the application for extension of time to appeal is concerned, it can be made to the Court of Appeal as well as to the Court of First Instance, but if the application is made to the Court of First Instance ie this court, it must be made before the expiry of the original time limit to appeal:  Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [4]; RHC O 59 r 15 (1). 

5.  Since the 1^st Defendant’s application for extension of time was made after the original time limit to appeal, Mr Kwok submits, and this court agrees, this court has no jurisdiction to allow the extension — only the Court of Appeal has. This court must therefore dismiss the application for extension of time. 

6.  As far as the stay of execution of the Judgment is concerned, Mr Kwok submits that it should also be dismissed if this court refuses the application for extension of time to appeal.  This is because there is no pending appeal and there is therefore no proper basis for this court to even consider granting a stay of execution pending appeal: Tsang Wai Fan v Hui Siu Kwong unrep, HCMP 409 of 2016, 12 April 2016, Chu and Poon JJA at [53].

7.  This court agrees.  For this simple reason, this court must also dismiss the application for a stay of execution of the Judgment.

8.  Regarding paragraphs 3 and 4 of the summons, this court agrees with Mr Kwok that leave to appeal is unnecessary while paragraph 4, concerning fixing a hearing date for the summons, has now been superseded by event.  No order need be made in relation to the 2 paragraphs.

9.  To conclude, the 1^st Defendant’s summons is hereby dismissed.  If the 1^st Defendant sees fit to do so, she will have to renew her applications to the Court of Appeal.

10.  Costs should follow the event. On a nisi basis, the 1^st Defendant is ordered to bear the Plaintiff’s costs, to be taxed if not agreed, and paid forthwith, with certificate for counsel.