THE LEGISLATIVE COUNCIL COMMISSION v. SIXTUS LEUNG CHUNG HANG AND ANOTHER

CACV 333/2018

[2020] HKCA 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2018

(ON APPEAL FROM DCCJ 4497/2017)

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JUDGMENT

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

Introduction

1.  We handed down our first judgment on 17 September 2018.  In the judgment, we dismissed the applicant’s summons dated 9 August 2018 and struck out her appeal against the decisions of the Registrar Ho and Master Yip, both of the District Court in DCCJ 4497/2017 (“the Main Action”) on 13 November 2017, 12 and 26 June 2018, respectively (“the DC Decisions”) on the ground of abuse of process (“the First Judgment”).

2.  On 10 December 2018, we handed down our further judgment dismissing the applicant’s summons dated 28 September 2018 for leave to re-open and re-visit the First Judgment on the ground that her application was totally devoid of merits (“the Second Judgment”).

3.  By a notice of motion of 20 December 2019, the applicant sought leave to appeal out of time to the Court of Final Appeal against the First Judgment and the Second Judgment.  The intended grounds can be summarized as follows:

(1)  She claimed to be the representative of the voters of the defendants in respect of claims under Articles 10 and 21 of the Hong Kong Bill of Rights Ordinance, Cap 383.

(2)  She claimed that this Court acted on mistaken belief (without specifying what such belief was) in the First Judgment and the Second Judgment as this Court does not have the “DC file”.  The Second Judgment was handed down prematurely given that the applicant issued a summons to appeal against the DC Decisions before a District Court Judge on 16 November 2018 (“the DC Application”), which was dismissed on 10 December 2018.

(3)  There were criminal liabilities on the part of the guards of the Legislative Council (“Legco”) when removing the defendants from the Legco chamber as directed by the president of Legco.

(4)  The applicant has a privileged document and equitable interest in the assets held by the defendants and these assets are under the claim by the plaintiff in the Main Action. 

(5)  The reason for her application for leave to appeal to this Court was to gain time under Order 59 rule 2B of the Rules of the High Court, Cap 4A (“the Rules”).

(6)  The plaintiff’s solicitors had evaded service of court documents on three occasions. 

(7)  EUCtHR has the jurisdiction of the case and certain remedies can be sought from EUCtHR.

(8)  The president of Legco and the plaintiff seriously prejudiced the defendants as the Government had given a “green light” for the president and the plaintiff to set-off the claimed sum and the same arrangement was already made to other four disqualified Legco members.

(9)  the defendants shall be entitled to protection under the Employees’ Compensation Ordinance, Cap 282 and the Employment Ordinance, Cap 57.

(10)  Registrar Ho erred in giving his directions in the applicant’s previous applications in the Main Action.

(11)  Master Yip failed to consider the applicant’s cause of action as the representative of the voters of the defendants.

4.  On 24 December 2019, the Registrar of Civil Appeals (“RCA”) gave directions to the applicant on the conduct of the motion in accordance with Practice Direction 2.1.  The applicant issued two summonses on 2 January 2020 and 17 January 2020, respectively, seeking for time extension to lodge her written submissions.  RCA extended the time for the applicant to lodge her written submissions to 21 January 2020. 

5.  The applicant lodged her written submission on 21 January 2020.  It contains arguments similar to those set out in the notice of motion and one additional ground that there was an implied consent given by the plaintiff throughout the applicant’s applications in the Main Action.

6.  Pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), leave to appeal to the Court of Final Appeal in any civil cause or matter may be granted if :

“ the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision.”

7.  We consider that it is appropriate to determine the notice of motion on the papers without any oral hearing in accordance with paragraph 3 of Practice Direction 2.1.

Discussion

Substantial delay

8.  Pursuant to section 24(2) of the Ordinance, an appellant has 28 days from the date of the judgment to seek leave to appeal to the Court of Final Appeal against it.  In the present case, the time for the applicant to seek leave to appeal against the First Judgment and the Second Judgment expired on 15 October 2018 and 7 January 2019, respectively.  The applicant was late by over 11 and 14 months.  The applicant did not provide any explanation for such delay.

9.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before this Court will exercise its discretion to grant an extension of time under section 24(5) of the Ordinance.  See: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another CACV 191/2013, 29 January 2015.  

Abuse of process

10.  Section 24(2) of the Ordinance requires an applicant to give the opposite party 7 days’ notice of his intended application and such notice may be given at any time during the period of 28 days from the date of the judgment to be appealed from.

11.  The applicant has not served any notice, the notice of motion and any of the documents lodged in this appeal on the parties to the Main Action.  This is not an ex parte application and contrary to what she said in her written submission, it is not acceptable for her to serve the parties only subsequently.  

12.  On this ground alone, the application should be struck out as an abuse of process.

No question of great general or public importance

13.  We are of the view that the matters put forward by the applicant in this application do not involve any question of great general or public importance.

Lack of prospect of success

14.  As it should be plain from the First Judgment and the Second Judgment, we struck out the applicant’s appeal on the ground that it was an abuse of process as this Court does not have jurisdiction to entertain such appeal or leave application (as explained at [9] to [14] of the First Judgment). The matters set out in the notice of motion and her written submissions are irrelevant to this analysis.

15.  Her argument that there was mistaken belief by this Court in the First Judgment and the Second Judgment as this Court does not have the DC file is not understood.  The First Judgment dated 17 September 2018 addressed an appeal against the decisions of the Registrar and a Master of the District Court of 13 November 2017 and 12 and 26 June 2018 in DCCJ 4497/2017.

16.  We refused to re-open the appeal for the reasons set out in the Second Judgment.  This was essentially an exercise of discretion.  The applicant had not shown good reason for such exceptional course to be permitted.  

17.  As to the DC Application, the applicant made no reference to it in her written submission in support of the application to re-open the appeal.  It was in any event an application made after the First Judgment, and bears no relevance to the First Judgment. Nor can it assist the applicant in her application to re-open the appeal.

18.  In general, the applicant’s grounds of appeal and submissions do not impinge upon our reasons for the First Judgment and the Second Judgment, and cannot constitute valid grounds for granting leave to appeal.  There is also no basis to grant leave on the “or otherwise” limb.

Disposition

19.  As the intended appeal has no merit, it would be futile to grant an extension of time to appeal to the Court of Final Appeal.

20.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal.  The notice of motion filed on 20 December 2019 is dismissed accordingly.