SUI SEE CHUN v. THE BAR COUNCIL

IN THE COURT OF APPEAL

1994, No. 176

(Civil)

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J U D G M E N T

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Mayo JA:

1. The respondent is applying to strike out the appeal which the appellant is to pursue. It is not without its complication. There was an earlier hearing before a differently constituted Court of Appeal. It was not possible to complete the hearing of the application and it has not proved to be possible to convene the same court again.

2. In the interim Mr Tang who represents the respondent filed a supplementary notice under Order 59 r3 to introduce further grounds in support of the application. The main focus of the supplementary notice was the alleged failure of the appellant to obtain leave to file his notice of appeal out of time.

3. As this hearing was a hearing de novo it was necessary to consider the new material together with all the other matters. We accept however that there may be costs implications concerning the first hearing.

4. The Bar Disciplinary Tribunal found the appellant guilty of professional misconduct and delivered its decision on 7 July 1994.

5. The appellant wished to appeal against this determination. On 25 July 1994 he sent a handwritten notice to the respondent in this form.

"	N O T I C E

TAKE NOTICE that:

1. the undersigned has been out of Hong Kong since 11th July 1994;

2. the undersigned wishes to appeal against any adverse finding against him delivered by the Tribunal headed by Mr Andrew LIAO QC on 7 July 1994 in relation to the complaint by Henry Litton, JA.

Dated this 25th day of July 1994"

6. This "notice" did not comply with the requirements of Order 59 r3. Also it was not filed in the registry of the court.

7. Section 37B of the Legal Practitioners Ordinance Cap 159 provides that a notice of appeal must be lodged within 21 days. It was not. However the appellant did lodge a notice of appeal on 26 September 1994 without ever having obtained leave to extend time.

8. The appellant placed reliance upon Order 2 r2 to support his contention that the respondent had waived any irregularity there may have been. They had been dilatory in applying to strike out this appeal and they had had taken steps in the proceedings.

9. It is pertinent to observe that the respondent did not know at the relevant time that the appellant had not obtained leave.

10. This is not accepted by the appellant. However we accept the statement made by Mr Tang that the respondent did not know until shortly before the application that leave had not been obtained.

11. I do not consider that Order 2 r2 has any application to a situation of this nature. There is a requirement to obtain leave and this is a more serious matter than a simple non-compliance with the rules. One reason for this is that the court itself is concerned with the question as to whether the appeal should be proceeded with. Even if the other party to the proceedings does not object to the failure to obtain leave this does not mean that the court has to accept that the matter has to be proceeded with regardless of the merits or lack of them in the appeal.

12. Even at this point of time the appellant has made no application for leave to file a notice of appeal out of time. Indeed the appellant contends that it is not necessary for him to obtain leave.

13. In my view the failure to obtain leave to proceed out of time is fatal to this appeal. The consequence of this is that the notice of appeal which has been lodged out of time by the appellant must be struck out and the appeal be dismissed.

Liu JA:

14. Lodging of the Notice of Appeal in this case was accepted by the Registry out of time without an extension, and the appeal was set down. The respondent was unaware of the situation until shortly before the oversight was drawn to the attention of this court, differently constituted. There is no sufficient material for barring the respondent from taking the course it now pursues. The appellant was out of time and he has not taken advantage of the invitation, time and again extended to him by this court, for disclosing his reasons for not observing the prescribed time limit. I would also accede to the respondent's summons. For whatever reasons, there is no application before us for extension of time. I would also strike out the appeal as prayed for in the summons of the Bar Council.

Nazareth V-P:

15. I agree with my Lords. In fact the appellant managed to slip past the clerks in the Registry his notice of appeal after the prescribed period of 21 days had expired without any extension of time. He now argues at great length that he does not need such an extension principally because the respondent was, he says, dilatory in applying to strike out his notice of appeal. I do not accept that the respondent was dilatory for the reasons Mayo JA has given. More to the point I do not accept that an extension of time was not necessary. The applicant has chosen not to apply for the necessary extension and must abide by the consequences.

16. I, too, would strike out the appeal.