NG AI KHENG JASMINE v. MASTER M YUEN AND ANOTHER

HCMP 1153/2004

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS NO. 1153 of 2004

(ON AN INTENDED APPEAL FROM HCAL no. 46 of 2003)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This is an application by the applicant who is a litigant in person for leave to appeal to the Court of Final Appeal from the order of this court dated 29 June 2004 whereby her application for leave to appeal out of time was refused.  The application was dismissed for reasons to be handed down later which we now do.

Chronology

2.  On 6 November 2003, Chu J heard the applicant’s application to judicially review (1) the decisions of the Director of Legal Aid (“the director”) made on 3 June 2002 and 25 November 2002, refusing the applicant’s application for legal aid; and (2) the decision of Master Yuen made on 26 March 2003, dismissing the applicant’s appeal against the directors decisions referred to in (1), leave to do so having been granted on 2 July 2003.  On 8 March 2004, Chu J dismissed the applicant’s application for judicial review.  The order was sealed on 11 March 2004.

3.  Approximately 8 weeks later, on 6 May 2004, the applicant filed an application for leave to appeal the order of Chu J.  The application which was some 6 weeks out of time was heard by Rogers VP on 14 May 2004 in open court.  Although in her leave application the applicant did not in terms seek an extension of time, the application heard by Rogers VP was treated as a composite application dealing not only with leave to appeal but also for an extension of time for appealing.  Rogers VP dismissed the applicant’s application in open court on 14 May 2004.

4.  On 21 May 2004, the applicant renewed her application for leave to appeal out of time.  The renewed application was heard by this court (differently constituted) on 2 June 2004.  It was adjourned and was heard by this court on 23 June 2004.  On 29 June 2004, we refused the applicant’s application. 

5.  On 1 February 2005, at the applicant’s insistence, the Deputy Clerk of Court (Appeals) allowed the present application to be lodged, seeking leave to appeal to the Court of Final Appeal from the order made on 29 June 2004 refusing leave to appeal out of time.

6.  Before considering whether grounds exist for granting leave, there is a preliminary question to be decided and that is whether the renewed application culminating in the order sought to be appealed from was competent.

The renewed application

7.  The question arises as to whether or not the applicant had any right to make a renewed application before this court.  In HLF v MTC and LHN (Intervener) [2004] 3 HKLRD 241, Ribeiro PJ held (at paragraph 18) as follows:

“18.  The important point is that renewed applications are only provided for by O 59 r 14(2A) where the initial refusal was otherwise than after a hearing in open court.  The policy of the Rules is evident: no one should be refused leave to appeal to the Court of Appeal without being given a hearing in open court.  But equally, after such an open court hearing there is no further right to renew the application or, if the open court hearing was before a single judge, no right to appeal the single judge’s refusal of leave to the full Court of Appeal.  Thus, O 59 r 14(12) provides that an appeal lies to the Court of Appeal from any determination of a single judge “not being the determination of an application for leave to appeal”.”  

8.  In the present case, the applicant’s application had been dealt with directly by Rogers VP sitting in open court.  That being so, that was the end of the matter in that the decision was final: the applicant had “no right to appeal the single judge’s refusal of leave to the full Court of Appeal”: Order 59, rule 14(2A) did not permit the application to be renewed.  In other words, this court ought not to have entertained the renewed application.  Had this court’s attention been drawn to the decision of the Appeal Committee in the HLF case, there is no question but that the application would have been dismissed as having been brought without jurisdiction rather than on the merits.

9.  The applicant’s complaint is that the judgment of 29 June sought to be appealed from was “defective both in law and in fact” inasmuch as the time for appealing was taken to be the 10-day period referred to in Order 53, rule 3(HK)(4) rather than the 14-day under Order 59 for interlocutory appeals.  Even if that were so, it would not have made any difference to the result given the length of delay which we found to be inexcusable quite apart from the fact that the appeal was devoid of merit.  But, more importantly, if we had no jurisdiction to entertain the renewed application, the judgment as well as the order made must be a nullity.  That being so, no appeal can lie from it.

The present application

10.  In the HLF case, it was further held (at para. 23) that:

“Where the Court of Appeal refuses leave to appeal, it declines to hear the appeal at all and no judgment of that court, whether final or interlocutory, comes in to being.  Therefore no appeal lies under section 22 to the Court of Final Appeal …”

So, even assuming the June judgment was not a nullity, having regard to the principles stated in the HLF case, the application for leave to appeal to the Court of Final Appeal also falls to be dismissed on the basis articulated by Ribeiro PJ.

Hon Cheung JA:

11.  I agree.