MOK PAK KEUNG v. WONG IP MING

CACV78/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 2000

(ON APPEAL FROM HCA 10036 OF 1997)

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J U D G M E N T

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Hon Rogers, Acting CJHC :

1. This is an appeal from a decision of Mr Justice Chan, CJHC, (as he then was) sitting as a single judge of the Court of Appeal on 25 May 2000. On that occasion, he was hearing an application for leave to extend time provided by the rules under Order 59 rule 5(4) for the time within which the appellant must give notice that an appeal has been set down.

2. The appeal in question was an appeal from a decision of Sakhrani J of 21 January 2000 whereby Sakhrani J had given judgment against the appellant for the sum of $140,000 plus interest. The Notice of Appeal had been served and the copy of the judgment together with two copies of the Notice of Appeal had been filed. The Registrar had, in accordance with Order 59 rule 5(2), set the appeal down, but then under sub-rule (4), it is necessary for the appellant or his solicitors to serve Notice thereof on the respondent.

3. Mr Henry Ho Ka Shi explained in his affirmation that he failed to do so because he, as the solicitor, had failed to appreciate the necessity of serving the Notice, rather the solicitor had waited for the time to expire for a Respondent's Notice and thought that was sufficient. It was only after the expiry of the time for filing a Respondent's Notice that enquiry was made as to the date of the appeal and he was told of the failure to comply with the rules.

4. The rules as to times for giving Notice of Appeal, for applying to have the appeal set down and for giving notice thereof to the other side are important. These are rules which relate primarily to the efficient running of the appeal. The parties have already had a decision at first instance and if the losing party wishes to appeal, it must comply strictly with the rules otherwise the business of the Court of Appeal will be severely disrupted. It is therefore important if application is to be made for extension of any of the times that a good reason is given as to why an extension should be granted and if there has been a failure to comply with the time as to why there has been such a failure.

5. Furthermore, once there has been a failure to comply with the time and the party has to apply for an extension of time, it is necessary to show that the court's discretion should be exercised in favour of granting that extension. One of the factors which the court will bear in mind in exercising its discretion is as to whether if it does so exercise its discretion in favour of the party so requesting, the exercise of that discretion will not be futile.

6. The power to extend time to comply with, for example, the provisions of Order 59 rule 5 are of course vested in the Court of Appeal and can be exercised by a single judge. Under Order 59 rule 14, if a judge refuses to grant the extension of time, there may be a further appeal to the Court of Appeal against that determination and Order 59 rule 14(12) reads :

"An appeal shall lie to the Court of Appeal from any determination by a single judge, not being the determination of an application for leave to appeal, and shall be brought by way of fresh application made within 10 days of the determination appealed against:

Provided that an appeal shall not lie to the Court of Appeal without the leave of that Court in respect of a determination of the Registrar which has been reviewed by a single judge."

7. When the appeal is thus brought to the Court of Appeal on appeal from a decision of a single judge, what the Court of Appeal is doing is reviewing on appeal the exercise of discretion by the single judge. In my view the same rules apply in that respect as apply to the Court of Appeal in other cases when it is reviewing the exercise of a discretion by a judge. They can be summarised that the Court of Appeal will not interfere with the exercise of a discretion unless it is satisfied that the judge had applied wrong principles of law or had given a wholly erroneous weight to some matters or failed to take into account some other matters or indeed if the judgment was plainly wrong.

8. In this respect, our attention has been drawn to a number of cases including in particular to the case of Wren v Braunston Canal Services and Others which was reported in the Times Law Reports on 23 November 1990 and the case of C M Van Stillevoldt B V v E L Carriers Inc [1983] 1 WLR 207. The effect of these decisions is the same as I have outlined and I propose to consider the matter in those terms.

9. The Chief Judge considered the facts of the case. He considered the explanation which had been provided as to the delay which had occurred and the failure to observe the time limit and then went on to consider whether his discretion should be exercised to extend the time.

10. The first point to note is that the proposed appeal by the appellant was one in relation to the findings of fact to which Sakhrani J had come. Of course on any appeal the burden of showing that the trial judge was wrong as to the facts lies on the appellant and is clearly a heavy one. The Court of Appeal will not lightly interfere with a decision as to fact arrived at by a judge for a number of reasons in particular because the judge has seen and heard the witnesses : what happened at the trial can look very different to the judge hearing it from the way it can look upon reading even transcripts and looking at documents thereafter. The Court of Appeal is very slow to disturb a judge's finding as to fact unless it can be shown that the judge has gone wrong as to fact. Mr Justice Chan considered the arguments which had been put forward by the appellant. He said in his judgment that for the purposes of his judgment it was not necessary for him to go into the detail of the evidence or his assessment and in my view, he was clearly correct about that. What the Chief Judge was saying was that it was unnecessary for him to set out in any detail the various questions of fact and the arguments which had been put before him. It is quite clear from the Chief Judge's judgment that he did consider all the arguments which had been put before him and he did consider the facts. It is inadvisable for any judge, if there is possibly to be an appeal, to make preliminary observations as to the individual arguments which are raised because that, indeed, might have some effect on any subsequent appeal should there be one.

11. The Chief Judge summarised the matter in this way. He said :

"It may be said that, strictly speaking, the defendant may be able to put up some arguments attacking some of the criticisms of the judge. However having considered the judgment of the court below and the submissions I have heard today, I have come to the conclusion that the defendant is unlikely to succeed in the appeal and that the chances are not high at all."

12. I can find no grounds for criticising the Chief Judge's approach to the matter in any way or indeed his conclusion to the matter which would entirely concur with my own.

13. Having heard Mr Wong at length on a number of the factual points which he has raised and allowed him to elaborate those to some great extent, I am very far from convinced that there is sufficient merit in this appeal that this appeal should be allowed to go any further.

14. For those reasons, I would dismiss this appeal.

Hon Keith JA :

15. I agree. I understand entirely that the Defendant thinks that he has been the victim of a serious miscarriage of justice. The judge, he thinks, believed the wrong man. It is always a matter of regret when a litigant feels that he has not received justice from the courts. But the responsibility for making findings of fact rests with the judge sitting at first instance. That will often involve believing one witness and disbelieving another. The witness who is disbelieved may feel that he has been hard done by, but our system of civil justice accords great respect to the findings of fact made by the person charged with the responsibility for making those findings of fact. Otherwise, disputed issues of fact will continue to be argued about interminably.

16. For that reason, the circumstances in which an appellate court can interfere with findings of fact are extremely limited. It means that in the overwhelming majority of cases, the litigant who is disbelieved is simply going to have to reconcile himself to that fact. In my opinion, there is nothing exceptional about this case, and I agree entirely with Rogers CJHC (Ag.) that Chan CJHC was entitled to conclude that the Defendant's chances of having the findings of fact set aside on appeal were slim, and that Chan CJHC did not exercise his discretion not to extend the Defendant's time in such a way as to warrant intervention .

17. I only wish to add that Chan CJHC thought that the application before him was an application for leave to extend the time for setting down the appeal. As Rogers CJHC (Ag.) has pointed out, it is for the Registrar to set down the appeal, not an appellant, and that it is for the appellant to notify the parties on whom the notice of appeal was served of the fact that the appeal has been set down. Accordingly, what the Defendant was in fact applying to Chan CJHC for was an extension of time for the service of such a notice on the Plaintiff. However, exactly the same discretionary considerations apply to an application for an extension of time for the service on the Plaintiff of such a notice as would have applied to an application to extend the time for setting down the appeal if such an application had been appropriate.