CHAU CHEUK YIU v. POON KIT SANG AND OTHERS

HCMP 121/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 121 OF 2010

(ON AN INTENDED APPEAL FROM HCAL NO. 97 OF 2004)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an application by the respondents under RHC Ord. 59, r.12 to set aside an order of Rogers VP made on 2 February 2010 granting the applicant an extension of time to appeal from an order made by A Cheung J on8 February 2007 in HCAL 97 of 2004. At the conclusion of the hearing the application was dismissed with costs. The reasons appear below.

2.  A party seeking to set aside an order of a single judge of this court granting an extension of time has a high hurdle to surmount. It is an appeal against an exercise of discretion and it is necessary for the respondents to show that the judge plainly was in error. Applications to reconsider the grant of leave to appeal by a single judge face a similarly high threshold. The thresholdto be met was set out by Lord Donaldson MR in The Iran Nabuvat[1990] 1 WLR 1115 (at 1117H):

“But the point that I am making is that, if one Lord Justice thinks that an appeal is arguable, it is really necessary, in my view, for anybody seeking a reconsideration of that to be able to point fairly unerringly to a factor which was not drawn to the Lord Justice’s attention because, perhaps, it did not feature in the documents which have been studied, or to the fact that he has overlooked some statutory provision which is decisive, or some authority which is decisive, in the sense that the appeal will inevitably fail. That is really what leave to appeal is directed at, screening out appeals which will inevitably fail.”

3.  Those observations were cited with approval in First Tokyo Index Trust Ltd v Morgan Stanley Trust Co and others, The Times, 6 October 1995, CA, where Sir Thomas Bingham MR stated that the settled rule of practice is that this court will not set aside leave granted by a single judge even if of opinion that it would not have granted leave itself or that the single judge was being perhaps over-indulgent to a prospective appellant. He explained that the rationale is to be found in “considerations of practical efficiency and also of justice” and, further, that a high threshold was necessary:

“… because otherwise there is the risk that a procedure intended to save costs and avoid delay increases both by inserting two procedures, the grant of leave on paper and an application to set aside in addition to the hearing of an appeal itself.”

4.  Those observations apply with equal force to applications for extension of time to appeal. Moreover, in the present case, the discretion was exercised not on a paper application but after an inter partes oral hearing. In my view, this court should be very sparing in the exercise of the jurisdiction to set aside an extension of time so granted.

5.  I now turn to the background facts.

Background facts

6.  The applicant, a senior police constable who joined the police force in 1979, was charged with a disciplinary offence of “conduct calculated to bring the public service into disrepute”. It arose out of an incident that occurred in June 2002. The charge was that, whilst off duty, he had revealed his identity to the complainant and had obtained his address and telephone number by purporting to be investigating a crime.

7.  Prior to the first hearing on 14 August 2003, he had already approached a senior police officer (Inspector Leung) to represent him. That was permitted under regulation 9(11) of the Police (Discipline) Regulations. Regulation 9(12) then in force prohibited legal representation save where the police officer happened to be qualified as a barrister or solicitor.

8.  After the trial date was fixed for 2 October 2003, Inspector Leung was informed but he was not available on that day. The applicant then approached another officer who, after about two and half weeks, advised the applicant that he also would not be available. The following day, the applicant approached a third officer. It was only a fortnight later, about a week before the hearing and after there had been a number of meetings to discuss the case, that the inspector also found himself unavailable. The applicant lost no time in contacting the Training Staff Relations Officer for assistance. He was given several names and was advised to contact them one by one rather than simultaneously. The applicant wrote to one of the inspectors but by the time of the hearing no response had been received.

9.  At the resumed hearing on 2 October 2003, given his lack of success at obtaining representation, the applicant applied for an adjournment “for a certain period”, having a week earlier notified the prosecuting officer of his difficulties and the need for an adjournment. The prosecuting officer opposed the application because his witnesses were in attendance. The adjudicating officer refused to adjourn, stating that he was not satisfied that, if granted, it would “better serve the ends of justice” and considered the request for an adjournment for “an unspecified period of time” unreasonable. Pausing here, it is not readily apparent why another date convenient to the witnesses which also would have given the applicant a suitable window of time to obtain representation could not have been fixed. Be that as it may, the hearing proceeded with the applicant unrepresented.

10.  The applicant was found guilty on 1  October 2003. He was given a “severe reprimand” and compulsorily retired with deferred benefits.

11.  The applicant took out an application for judicial review and, inter alia, relied on Article 10 of the Hong Kong Bill of Rights Ordinance. Leave was granted in August 2004. He obtained legal aid in October 2004 but that was withdrawn in January 2007, leaving the applicant unrepresented at the substantive hearing that took place later that month.

12.  At the judicial review hearing, the judge recorded in his judgment that:

“14. ... owing to subsequent development of case law, at this hearing the Applicant agreed that [Article 10] grounds were unarguable and therefore abandoned reliance on those grounds as support for his application for judicial review.”

13.  As Rogers VP observed in his decision:

“6. That of course, was quite correct. The applicant, on his application for judicial review was acting in person. It was the judge’s duty to assist the applicant as to what the law was or what the state of the law was; the state of the law at that stage was that the point was not a good one.”

14.  The applicant was left with the ground based on the denial of an adjournment to obtain representation. The judge dismissed the judicial review application in February 2007. The applicant while dissatisfied with the judgment did not appeal as, realistically, there was no chance of his obtaining legal aid given that it had been withdrawn for the substantive hearing and the then prevailing view that Article 10 had no application to police disciplinary proceedings. That remained the state of the law until it was reversed by the Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 some 22 months later. The applicant was granted legal aid in September 2009 and the application for an extension was filed in January 2010.

This appeal

15.  Mr Mak who appeared for the respondents submitted that the Vice President was wrong on principle in that he failed to apply HKSAR v Hung Chan Wa & Another(2006) 9 HKCFAR 614. It was said that the factors that constituted “exceptional circumstances” warranting the extension of time had not been identified in the decision and, in any event, there were no such circumstances.

16.  The Hung Chan Wa principle appears from the judgment of the Chief Justice (at 631-632):

“21. It is in the interests of society for there to be finality in the criminal process. But the time limits for the purpose of achieving finality are not absolute. The courts have the discretion to relax the time limit where this is considered to be justified in the circumstances of an individual case.

…

24. In overseas jurisdictions, the courts in dealing with applications for extension of time for appeal against conviction have consistently applied the principle that time should not be extended for appeal only on the ground that an authoritative judgment subsequent to the conviction has held the previous understanding of the law to be incorrect. In overseas jurisdictions, the courts in dealing with applications for extension of time for appeal against conviction have consistently applied the principle that time should not be extended for appeal only on the ground that an authoritative judgment subsequent to the conviction has held the previous understanding of the law to be incorrect ...

25.      However, overseas jurisprudence does not exclude the possibility that there could be exceptional circumstances in a particular case which would justify the court in extending time for appeal against conviction on the ground that a subsequent judgment has held the previous understanding of the law to be incorrect.  Especially as the Court does not have before it an appeal raising a question relating to extension of time, it is not feasible for the Court on this occasion to attempt to define what constitute exceptional circumstances except to say that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.”

17.  That is the backdrop against which the decision of Rogers VP is to be read.  At § 7, he said:

“7. There are a number of points which have been raised as to why there should not be an extension of time. But given the history, I have to say that I approach this on the basis that, looking at it overall, it is only fair that the applicant at least has a chance of addressing the Court of Appeal as to whether his appeal should be allowed ...”

He then dealt with the objections that had been put forward and concluded that:

“10. ... in the circumstances of this case, it is right that this matter should at least go before three judges of the Court of Appeal for them to decide the matter.”

18.  The approach adopted is consonant with the authorities. In extension of time applications, the court has to consider all the circumstances before reaching a decision as to whether the overall justice of the case required the discretion to be exercised. See Nantong Angang Garments Co. Ltd v Hellman International Forwards Ltd [2005] 4 HKC 86 where the court disapproved of taking a rigid and mechanistic approach which focuses on the reasons for and the length of the delay. What is required is a balancing exercise, taking all relevant matters into account. Hung Chan Wa did not affect that approach. Nor do I read it as requiring the enumeration of factors that constitute “exceptional circumstances” in any particular case.

19.  While Mr Mak sought to characterize the issue that had to be decided in the defaulter proceedings as ‘simple’, it is neither here nor there unless he can demonstrate that a conviction was inevitable, whether or not the applicant had representation.  That he plainly cannot do. In that regard, I share Rogers VP’s sentiment that “a lawyer is his own worst client”. The Court of Final Appeal has not taken a different view. In Chiu Hoi Po v Commissioner of Police, unreported, FACV 9/2009, 24 July 2009the appellant’s contention was that the defaulter proceedings might have been different had he been legally represented. Bokhary NPJ noted the Commissioner’s wisdom in refraining from contending otherwise.

20.  It is clear that looking at the matter overall, the applicant’s grievance is that he has not had a fair hearing. He was left unrepresented at the defaulter proceedings and at the judicial review when, throughout, he had wanted representation and had also relied on Article 10.  The overall justice of the case is clear: he should be given the opportunity to appeal to the Court of Appeal. As no error of principle has been shown, the application to set aside falls to be dismissed.

HonYuen JA:

21.  At the inter partes hearing for an extension of time to file the appeal, the Vice-President was referred to the relevant authorities including the test formulated in Hung Chan Wah and came to the conclusion that in the exercise of his discretion he would grant an extension.  Although the Vice-President did not articulate the specific exceptional circumstances he found in this case, it cannot be inferred from that that he had failed to apply the Hung test as he did say in his judgment that “in the circumstances of this case” it was right to grant an extension. In this respect, it is pertinent to note that the judge who had dismissed the application for judicial review (Hon A. Cheung J) had in another case subsequent to the Vice-President’s decision (Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009, unrep. 26 February 2010) noted that the Vice-President’s decision was fully understandable by reason of the fact that the Applicant here had actually advanced the Article 10 point in his Form 86A and had only abandoned it at the hearing of the application after having had the law (as then understood) explained to him by the judge.  In these circumstances I do not think Mr Mak has reached the high threshold required for this court to set aside the Vice-President’s order and I agree that the Respondents’ application should be dismissed with costs.