GLOBAL MEDICAL SOLUTIONS HONG KONG LTD v. MA MAN LUNG

HCMP 717/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 717 OF 2017

(ON AN INTENDED APPEAL FROM HCA NO 1560 of 2011)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. This is the renewed application for leave to appeal against the decision of Deputy High Court Judge Kent Yee in HCA 1560 of 2011. Though the summons of 28 March 2017 of the Defendant sought the seeking aside of the order of the learned judge of 28 February 2017, that was actually an order refusing leave to appeal against the judge’s decision of 29 December 2016. The decision of 29 December 2016 was a decision refusing to grant leave to the Defendant to appeal against the earlier decision of 19 May 2016. As one can gather from the grounds of appeal attached to the summons, the substance of the intended appeal is directed against the decision of 19 May 2016.

2. The application for leave to appeal against a refusal of leave is wholly misconceived.  The proper course was to renew the application for leave before this Court.  The Defendant should have renewed his application for leave in this Court after the judge refused leave on 29 December 2016. 

3. As leave was refused by the judge on 29 December 2016, the time for renewing the application for leave to appeal in this Court had long expired.  Under Order 59 Rule 2B(3), the time for renewing application for leave before this Court is 14 days after refusal of leave in the court below.  The Defendant is therefore grossly out of time in the present application.

4. He explained in his affirmation of 28 March 2017 that he did not have enough knowledge on the time frame for appeal.  That is not a good excuse for not observing the time limit and proper procedure prescribed by the rules.  The rules are equally applicable to litigants in person as well as those represented by lawyers.  It is the duty of those who choose to act in person to familiarize themselves with the requisite rules and procedures in conducting litigation. 

5. In any event, his intended appeal has no merit whatsoever.  The subject matter of the intended appeal is the decision of Master J Wong on the taxation of a bill of costs pursuant to the order of To J made on 19 January 2012 when the learned judge gave judgment in favour of the Plaintiff.  The taxation hearing before the master took place on 5 February 2013 and the master gave his determination on taxation, with oral reasons for his determination, there and then.  The taxed costs payable by the Defendant was subsequently worked out to be in the sum of $263,961.  Solicitors for the Plaintiff informed the Defendant of the same by a letter of 6 February 2013.

6. However, solicitors for the Plaintiff did not serve the Allocatur until 14 September 2015. 

7. The Defendant took out an application for review of the determination in late 2015.  As provided under Order 62 Rule 33(2), such application should have been made within 14 days after the conclusion of the taxation hearing.  The master refused his application for review on 12 January 2016 as it was made grossly out of time.

8. The Defendant appealed to the judge.  In the judgment of 19 May 2016, the judge identified the issues as whether the Defendant had an acceptable explanation for the delay and whether he had a reasonable chance of success in reviewing the taxation.  The judge found against the Defendant on the first issue.  He also briefly dealt with the second issue and found no merit at all in the intended review.

9. In the grounds put forward by the Defendant to support his intended appeal, he relied on Order 62 Rule 33 and Order 3 Rule 6. He said he was not obliged to seek any review until he received the Allocatur. He also submitted that he should not be deprived of the right to have a review due to the Plaintiff’s negligence in failing to serve the Allocatur in good time.  He also complained that the Plaintiff did not file any notice of intention to proceed in 2015 after a lapse of 2½ years from the determination of the master in 2013.

10. An allocatur is actually the final certificate to be issued under Order 62 Rule 17A, see para 38(4) of PD14.3.  It is provided under Rule 17A(2) that such document is only to be issued after the time for review has expired.  Thus, it is quite plain that an application for review is not dependent on the issue of the Allocatur.  The review period starts to run from the conclusion of the taxation hearing, see Order 62 Rule 33(2). 

11. After the issue of the Allocatur, there cannot be any review.  A review is only possible if the master deems fit to set aside the Allocatur under Order 62 Rule 16(1)(b).  And Order 62 Rule 17A(3) provides that the taxing master may only set aside the Allocatur for good reasons. 

12. The judge was correct in finding that there was no good reason to extend time since the absence of an Allocatur is not an excuse for not making the application for review within time.

13. We do not think Order 3 Rule 6 has any bearing on whether the Defendant should have applied for review within time. 

14. For these reasons, the Defendant is grossly out of time and has no merit in the intended appeal.  We agree with the judge that leave to appeal should not be granted.

15. We dismiss the summons of 28 March 2017 and order the Defendant to pay the costs of the Plaintiff.  Having considered the statement of costs of the Plaintiff, we fix the costs at $10,470.

16. We are of the view that the application for leave is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.