LEUNG SO HUNG SIEM v. WEN KAR SUEN CARSON

HCAL 1806/2020

[2021] HKCFI 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1806 OF 2020

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D E C I S I O N

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1.  This is the Applicant’s application for an extension of time to serve a notice of appeal (“the Notice of Appeal”) against this court’s order (“the Order”) made on 18 September 2020 dismissing her application for leave to apply for judicial review of:

(1)  a judgment of G Lam J on 11 June 2020 in HCB 4036/2018 (“the Bankruptcy Proceedings”), in which the Carson Wen was the “Petitioning Creditor” and the Applicant was the “Debtor”;

(2)  an order made by G Lam J in the Bankruptcy Proceedings on 11 June 2020 allowing the Petitioning Creditor to amend the Petition dated 16 July 2018; and

(3)  6 sealed orders made by G Lam J in the Bankruptcy Proceedings all dated 11 June 2020.

2.  Under Order 53, r 3(4) of the Rules of the High Court, Cap 4A, where an application for leave is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The Order in this case was made on 18 September 2020.  The period of 14 days expired on 2 October 2020.  However, 2 October 2020 was a public holiday.  Hence, the deadline for the Applicant to serve the Notice of Appeal fell on 3 October 2020.  The Applicant served the Notice of Appeal on the Putative Respondent only on 5 October 2020.  Accordingly, the service of the Notice of Appeal was out of time.  On 2 December 2020, the Applicant issued the present summons seeking an extension of time to serve the Notice of Appeal.

3.  In this court’s written decision handed down on 18 September 2020, the court dismissed the leave application on the ground that it was well-established that judicial review did not lie against a judicial decision of the High Court.  This principle was recently confirmed by the Court of Appeal in 莊裕安v終審法院 [2020] HKCA 970, at §37.

4.  The intended application for judicial review is misconceived.  That being so, the intended appeal against the Order is unarguable, and has no reasonable prospect of success.  There is thus no useful purpose in extending the time for the Applicant to serve the Notice of Appeal.

5.  In passing, I should mention that the Applicant does not accept that the Notice of Appeal was served out of time, her argument being that 3 October 2020 was a Saturday and was “not a working day as for SWL’s office”.  However, whether 3 October 2020 should be counted for the purpose of determining the last day on which the Applicant might serve the Notice of Appeal does not depend on whether it was a working day for the office of Siao, Wen and Leung.  As pointed out by the Judicial Clerk in a letter to the Applicant dated 9 November 2020 in relation to CACV 542/2020, by virtue of ss 3 and 71 of the Interpretation and General Clauses Ordinance, Cap 1, Saturday is not excluded for service of a court document.  In any event, if the Applicant is right in her contention that the Notice of Appeal was served within time, she would not need any extension of time to serve the Notice of Appeal, and her application would necessarily be misconceived.

6.  In all, the Applicant’s summons dated 2 December 2020 is dismissed.

7.  On 31 December 2020, the Applicant issued a further summons seeking to adduce “new evidence” in support of the application for extension of time to serve the Notice of Appeal.  Since the court has come to the clear conclusion that the intended appeal has no merits, there is likewise no useful purpose in allowing the Applicant to adduce new evidence in support of the application for extension of time.  Accordingly, the Applicant’s summons filed on 31 December 2020 is also dismissed.