SECRETARY FOR JUSTICE v. CHENG KAM MUN

HCMP 488/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 488 OF 2015

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HCMP 490/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 490 OF 2015

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HCMP 491/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 491 OF 2015

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HCMP 492/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 492 OF 2015

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HCMP 494/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 494 OF 2015

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HCMP 495/2015

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COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 495 OF 2015

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HCMP 496/2015

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HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 496 OF 2015

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HCMP 497/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 497 OF 2015

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HCMP 498/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 498 OF 2015

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HCMP 499/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 499 OF 2015

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HCMP 500/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 500 OF 2015

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HCMP 501/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 501 OF 2015

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HCMP 502/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 502 OF 2015

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HCMP 503/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 503 OF 2015

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HCMP 504/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 504 OF 2015

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HCMP 505/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 505 OF 2015

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HCMP 506/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 506 OF 2015

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DECISION
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INTRODUCTION

1.  I have before me 17 originating summonses issued by the Secretary for Justice seeking, against each of the respondents named in those proceedings, an order of committal for contempt of court arising out of events occurring at the westbound carriageway of Argyle Street between the junction of Tung Choi Street and Portland Street on 25 November 2014 in connection with the execution of an injunction order granted by Au J on 10 November 2014 and sealed on 14 November 2014 in HCA 2086/2014 (“the Injunction Order”)

2.  The underlying facts giving rise to these proceedings are well known to the parties and it is not necessary to set them out here.

3.  On 2 March 2015, the Secretary for Justice applied for leave to apply for an order of committal against each of the 17 respondents.

4.  On 20 March 2015, this court granted leave to the Secretary for Justice to apply for an order of committal against each of them.

5.  On 2 April 2015, the Secretary for Justice, pursuant to the leave granted by the court as aforesaid, issued an originating summons against each of the 17 respondents seeking, inter alia, an order that the respondent be committed to prison and/or fined for criminal contempt of court by “interfering and/or impeding the due execution on 25 November 2014 of [the Injunction Order] by refusing to leave the obstructed area covered by the injunction order despite repeated warnings”.

6.  On 29 May 2015, the Secretary for Justice issued a summons in each action seeking directions for the filing of evidence or further evidence by the Secretary for Justice and the respondent respectively (“the Evidence Summons”).

7.  On 14 July 2015, the Secretary for Justice issued a summons in each action seeking an order that “[t]ime be extended to the Applicant to issue a Notice of Appointment to Hear Originating Summons …” (“the Time Summons”).  It may be noted at this juncture that, as stated on the margin of the Time Summons, the application was made pursuant to Order 3, rule 5 of the Rules of the High Court, Cap 4A.

8.  In what follows, references to “Order” and “rule” shall, unless the context indicates otherwise, be references to the Rules of the High Court.

9.  The Evidence Summons and the Time Summons came before this court on 23 July 2015, on which occasion I granted leave to the Secretary for Justice to file further evidence and set a timetable for the making of further applications by the parties.  I adjourned the rest of the Evidence Summons and the Time Summons to be heard on 31 August 2015.

10.  In the meantime, the Secretary for Justice and some of the respondents issued a number of summonses seeking various directions pertaining to the conduct of the substantive trial of these matters, the details of which are not necessary to be set out in this decision.

11.  At the commencement of the hearing on 31 August 2015, it was decided that the Times Summons ought to be disposed of first, because its determination may mean that these proceedings shall, or have already, come to an end and it will not be necessary to consider the other outstanding summonses save in relation to the question of costs.

THE ISSUES TO BE DETERMINED UNDER THE TIME SUMMONS

12.  As earlier mentioned, the court granted leave to the Secretary for Justice to apply for an order of committal in each action on 20 March 2015.

13.  Order 52, rule 3(1) provides that “[w]here leave has been granted to make an application for an order of committal, the application shall be made by originating summons to a judge and unless the Court granting leave had otherwise directed, there must be at least 8 clear days between the service of the originating summons and the day named therein for the hearing.”

14.  Order 52, rule 3(2) further states as follows:-

“ Unless within 14 days after such leave was granted the originating summons is entered for hearing the leave shall lapse.”

15.  If entering an originating summons for hearing means issuing a notice of appointment to hear the originating summons, in view of the fact that leave to apply for an order of committal was granted on 20 March 2015, a notice of appointment to hear the originating summons in each action ought to have been issued on or before 3 April 2015, being 14 days after the grant of leave.

16.  As a matter of fact, no notice of appointment to hear originating summons was issued on or before 3 April 2015.

17.  It appears that, at the time when the Secretary for Justice took out the Time Summons, the view taken by him or on his behalf was that for the purpose of Order 52, rule 3(2), entering an originating summons for hearing means issuing a notice of appointment to hear the originating summons.  For this reason, in the Time Summons itself, the order sought by the Secretary for Justice was an order that “[t]ime be extended to the Applicant to issue a Notice of Appointment to Hear Originating Summons …”.

18.  Further, in the written submissions of Mr Victor Dawes SC (acting for the Secretary for Justice) dated 20 July 2015 filed for the purpose of the hearing on 23 July 2015, the following was stated at paragraphs 13 and 14 thereof:-

“ 13. There is a requirement under O.52, r.3(2) for the matter to be ‘entered for hearing’ within 14 days after leave is granted to make an application for an order of committal. What is apparently required is the filing of the Notice within the prescribed period.

14. This was not done in the present case but leave can be granted under O.3 r.5 to extend time.  See Effiscient Ltd v Lehman [2012] 3 HKLRD 671.  We see no reason for not making such an order in the cases before the Court.”

19.  This remained the Secretary for Justice’s position as stated in Mr Dawes’ written submissions dated 26 August 2015 filed for the purpose of the hearing on 31 August 2015.  At paragraph 29 of those submissions, it was stated that:-

“ The Applicant repeats §§12-15 [of] its submissions dated 20 July 2015. We see no basis to oppose such application.”

20.  On the other hand, in the written submissions filed on behalf of the respondents, it is submitted that the court has no power or jurisdiction to grant an extension of time to the Secretary for Justice to issue the notice of appointment to hear originating summons, essentially because of the following considerations:-

(1) The application for an order of committal for contempt of court in each of the 17 cases is a “criminal” cause or matter.

(2) Accordingly, the Rules of the High Court, save Order 52, have no application to these cases by virtue of Order 1, rule 2(3).  In particular, the general power of the court to extend the period within which a person is required or authorized by the Rules of the High Court to do any act in any proceedings under Order 3, rule 5 has no application to the present cases.

(3) In criminal causes or matters which affect, or may affect, the liberty of a subject, there must be strict compliance with all applicable procedural (as well as substantive) rules and requirements.

21.  The following submissions appear in Mr Dawes’ written supplemental submissions dated 28 August 2015 filed in reply to the respondents’ submissions, which represent, I understand, the current, considered, position of the Secretary for Justice:-

(1) It is accepted that the relevant conduct of the respondents in respect of which the present proceedings are concerned ought to be categorised as “criminal contempt”.

(2) It is further accepted that the Rules of the High Court do not apply to criminal proceedings save for the specific exemptions in Order 1, rule 2(3).

(3) It is said to be “questionable” as to whether the court has power to grant extension of time to comply with the requirement of Order 52, rule 3(2) pursuant to Order 3, rule 5.  I pause to mention that at the hearing on 31 August 2015, Mr Dawes conceded that the court has no power to extend time under Order 3, rule 5.

(4) It is argued, first, that although the court has no power under Order 3, rule 5 to extend time for compliance with the requirement of Order 52, rule 3(2), the court has “inherent jurisdiction” to grant an extension of time because there is a procedural lacuna here.

(5) Alternatively, it is argued that the decision of the Court of Appeal in the Effiscient case, in so far as it held that entering an originating summons for hearing meant issuing a notice of appointment to hear the originating summons, was reached per incuriam because certain conflicting provisions of the Rules of the High Court were not drawn to the Court of Appeal’s attention by the parties, and therefore is not binding on this court.  Mr Dawes invites this court to “consider the correctness of Effiscient v Lehman” (see paragraph 5(2) of Mr Dawes’ supplemental submissions dated 28 August 2015).  Mr Dawes further submits that, upon the true construction of Order 52, rule 3(2), the requirement of entering an originating summons for hearing is satisfied by simply issuing, or taking out, the originating summons (even though no date for the hearing of the originating summons would be fixed at that stage).  On this basis, and in view of the fact that the originating summons in each case was issued within 14 days after leave to apply for an order of committal was granted, the Time Summons is unnecessary and can be withdrawn.

22.  Accordingly, the questions which arise for consideration are:-

(1) whether the decision of the Court of Appeal in the Effiscient case is binding on this court;

(2) if the answer to (1) is “no”, whether for the purpose of Order 52, rule 3(2), entering an originating summons for hearing means issuing a notice of appointment to hear the originating summons or issuing the originating summons;

(3) if, for the purpose of Order 52, rule 3(2), entering an originating summons for hearing means issuing a notice of appointment to hear the originating summons, whether the court has inherent jurisdiction, as a matter of discretion, to extend the time for compliance with the requirement of Order 52, rule 3(2), it being conceded by Mr Dawes that the court has no such power under Order 3, rule 5;

(4) finally, if the answer to (3) is “yes”, whether the court ought to exercise the discretion in favour of the Secretary for Justice in the present cases.

Question (1): whether the decision of the Court of Appeal in the Effiscient case is binding on this court?

23.  There is no doubt that the Court of Appeal decided that, for the purpose of Order 52, rule 3(2), entering an originating summons for hearing means issuing a notice of appointment to hear the originating summons.  This was so stated at paragraphs 5 and 6 of the judgment of the Court of Appeal in the Effiscient case, as follows:-

“ 5. On 28 November 2011, the Judge granted leave to Effiscient under O.52 r.2 of the Rules of the High Court (Cap.4A, Sub.Leg.) to commence contempt proceedings against Mr Lehman. Pursuant to the leave granted, Effiscient issued and served the originating summons in the proceedings on 8 December 2011. Order 52 r.3(2) provides …

6. By that rule, the notice of appointment to hear the originating summons should have been issued by 12 December 2011.  This was not done.”

24.  Mr Dawes argues that the decision of the Court of Appeal in the Effiscient case was reached per incuriam, in that the Court of Appeal’s attention was not drawn to various conflicting provisions in the Rules of the High Court, namely:

(1) Order 7, rule 2(1A), and Form 8 (originating summons – general form) referred to in that rule;

(2) Form 10 (originating summons – expedited form) and Form 11 (ex parte originating summons);

(3) Order 12, rules 5 and 9(3), giving a defendant 14 days to acknowledge service;

(4) Order 28, rule 1A, relating to the filing of evidence in proceedings commenced by way of originating summons generally; and

(5) Order 28, rule 2, relating to fixing time for attendance of parties before the court, again in relation to proceedings commenced by way of originating summons generally.

25.  Mr Dawes further points out that Order 52, rule 3(2) in fact makes no reference to any notice of appointment to hear originating summons, and says that the parties in the Effiscient case somehow assumed that “entered for hearing” equates to the issuance of the notice of hearing and invited the Court of Appeal to grant an extension of time on that basis.  Mr Dawes argues that, had the Court of Appeal’s attention been drawn to the abovementioned provisions in the Rules of the High Court and reminded of the various changes made to Order 52 in 2008 as a result of the Civil Justice Reform (in particular by prescribing that an application for an order of committal should be made by way of an originating summons instead of originating motion), the decision of the Court of Appeal would have been different.

26.  It is with no disrespect to Mr Dawes that I do not propose to examine in detail the merits of his submissions regarding the true construction of Order 52, rule 3(2), for I am clearly of the opinion that whatever may be my view regarding the true meaning and effect of Order 52, rule 3(2), I am bound by the decision of the Court of Appeal in the Effiscient case. The holding that entering an originating summons for hearing means issuing a notice of appointment to hear the originating summons was plainly an essential step in the reasoning of the Court of Appeal in that judgment and accordingly forms part of the ratio decidendi of that case.  It is also clear that the doctrine of per incuriam cannot be relied upon by a judge at first instance to refuse to follow a directly relevant decision of the Court of Appeal: see The Queen v Pau Chi-keung and Cheung Hei-lai [1987] HKLR 1148 at 1152, per Fuad JA (delivering the judgment of the Court of Appeal comprising also Cons VP and Clough JA).

27.  If any further authority is needed, I can do no better than refer to the opinion of Lord Hailsham of St Marylebone in Cassell v Broome [1972] AC 1027 at 1054 –

“ … I am driven to the conclusion that when the Court of Appeal described the decision in Rookes v Barnard as decided ‘per incuriam’ or ‘unworkable’, they really only meant that they did not agree with it. But, in my view, even if this were not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way …

The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier … to accept loyally the decisions of the higher tiers.”

28.  In my view, this statement applies with equal, if not greater, force to a judge sitting at first instance when invited not to follow a decision of the Court of Appeal.

29.  Mr Dawes has referred me to the decision of Deputy High Court Judge Lugar-Mawson sitting at first instance in Wong Kwai On v Leung Wing Cheong [1999] 2 HKLRD 779, where the learned judge apparently did not follow an earlier decision of the Court of Appeal in Wong Lai Chi Ann v Wilson Cheung Kwok Hung [1996] 3 HKC 287 on the ground the decision was at variance with a binding statutory rule.  With great respect to the learned judge, I do not consider this to be a permissible route for a judge at first instance to take.  In my view, if it is considered that the decision of the Court of Appeal in the Effiscient case is incorrect, the only way to achieve a reversal of that decision would be to take the matter to the Court of Appeal (or the Court of Final Appeal) or amend the rules.

30.  In all, I would answer Question (1) in the affirmative.  Having reached this conclusion, Question (2) does not arise for consideration.

Question (3) : whether the court has inherent jurisdiction to extend the time for compliance with the requirement of Order 52, rule 3(2)

31.  Whatever may have been said about the usefulness of the distinction between civil and criminal contempt of court, this distinction is, at least in this jurisdiction, well recognized: see Secretary for Justice v Apple Daily Ltd [2000] 2 HKLRD 704 at 712, per Gall J; Re Kennedy (No 1) [2004] 3 HKC 404 at §20, per Kwan J (as she then was); Secretary for Justice v Choy Bing Wing, CACV 11/2004, at §§54-59, per Yeung JA (as he then was).

32.  As earlier mentioned, Mr Dawes accepts that the conduct complained of by the Secretary for Justice in each of the 17 cases before me ought to be classified as “criminal contempt”.  This conclusion is, in my view, inevitable in view of the decision of the UK Supreme Court in Director of the Serious Fraud Office v O’Brien [2014] AC 1246 explaining the differences between civil and criminal contempt, see §§37-42, per Lord Toulson JSC.

33.  It would follow from this conclusion that the 17 actions before me should be treated as criminal causes or matters, applying the test for distinguishing between “criminal” and “civil” cause or matter as stated by Ma CJHC (as he then was) in So Wing Keung v Sing Tao Ltd [2005] 2 HKLRD 11 at §31(1).

34.  I accept that the Rules of the High Court do not have general application to criminal proceedings, including criminal contempt proceedings, in view of Order 1, rule 2(3), which states as follows –

“ These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 53, Order 59, Order 62, Order 70, Order 115, Order 115A, Order 116, Order 117, Order 118 or Order 119 applies.”

See Chan Mei Yiu Paddy v Secretary for Justice [2008] 2 HKLRD 137 at §§25-26, per Saunders J.

35.  I do not, however, consider, that the only provisions in the Rules of the High Court which are applicable to criminal contempt proceedings are those to be found in Order 52.  Order 52 cannot, in my view, be read in isolation.  As a starting point, various provisions in Order 52 expressly refer to other provisions in the Rules of the High Court.  It is self evident that those other provisions must be regarded as applicable to criminal contempt proceedings, eg:-

(1) Rule 2(5) refers to Order 20, rule 8 (relating to amendment of pleading and other documents);

(2) Rule 3(4) refers to Order 65, rule 4 (relating to substituted service); and

(3) Rule 6(3) again refers to Order 20, rule 8.

36.  The applicability of other provisions in the Rules of the High Court cannot stop at those provisions expressly referred to in Order 52, but must, in my view, extend at least to those which have a direct bearing on, or application or relevance to, the provisions in Order 52, eg:-

(1) Rule 2(2) requires an application for leave to be supported by an affidavit, thereby engaging the provisions in Order 41 regarding the form and contents of admissible affidavit evidence;

(2) Rule 2(5) provides that an applicant may appeal against a judge’s refusal to grant lave to the Court of Appeal within 10 days after such order. It seems to me that, for the purpose of reckoning the 10 days period, the provisions of Order 3, rules 2 and 4 would be applicable.

37.  If some provisions in Order 3 are applicable to criminal contempt proceedings under Order 52, the question would naturally arise as to why the general power of the court to extend time under Order 3, rule 5(1) should be held inapplicable to the requirement to enter an originating summons for hearing within 14 days after the grant of leave under Order 52, rule 3(2).  Although this point was mentioned by the court in the course of Mr Dawes’ submissions, he was quite firm that the court’s power to extend time under Order 3, rule 5(1) can have no application in the present cases.  In these circumstances, I consider that the right course to adopt would be to proceed on the basis of counsel’s concession.  The question that remains, therefore, is whether the court has inherent jurisdiction to extend time.

38.  In my view, the answer is clear, namely, that the court has no inherent jurisdiction to extend the time for compliance with the requirement of Order 52, rule 3(2), for the following reasons.

39.  First, the consequence of a failure to comply with the requirement of Order 52, rule 3(2) is stated in unequivocal terms: “Unless within 14 days after such leave was granted the originating summons is entered for hearing the leave shall lapse” [underlining added].   The intention of the legislation is clear and leaves no room for doubt.

40.  Second, whatever may be the width of the court’s inherent jurisdiction, it cannot extend to lay down procedure which is contrary to or inconsistent with an express statutory rule: see So Wing Keung v Sing Tao Ltd at §31(2), per Ma CJHC; Re Merck Sharp & Dohme Ltd [2002] 1 HKLRD 820 at §§22-23, per Kwan J (as she then was); M S Dockray, The Inherent Jurisdiction to Regulate Civil Proceedings (1997) 113 LQR 120 at 128.

41.  Third, my attention has been drawn to a number of foreign decisions where a strict rule seems to have been adopted regarding the time for entering the originating process for hearing in criminal contempt cases: see Lee Heng Moy v Christopher Wong Wai Yee [2011] 5 MLJ 333 (a decision of the Court of Appeal in Malaysia);  Nasinu Town Council v Khan, HBC 8 of 2011 (unreported, 5 December 2012) (a decision of the Fiji High Court); Republic of Kenya v Principal Magistrate’s Court, ex parte Jack & Jill Supermarket Limited, JR 185 of 2009 (21 February 2014) (a decision of the Nairobi High Court).  These decisions are of course not binding on me and, as correctly pointed out by Mr Dawes, it appears that the relevant rules in those jurisdictions refer to entering a “motion” (instead of an “originating summons”) for hearing.  Nevertheless, these decisions support that view that the time limit prescribed by Order 52, rule 3(2) is mandatory and default in compliance cannot be cured by the court granting an extension of time in a criminal contempt case.

42.  Mr Dawes relies on the decision of the Court of Appeal in the Effiscient case to argue that the court has an inherent jurisdiction to grant an extension of time to comply with the requirement of Order 52, rule 3(2).  It is correct that the Court of Appeal did hold, at paragraph 23 of the judgment, that:-

“ The fact that leave has lapsed does not mean it may not be revived. Here it can be revived by the power of the Court to extend time after the time for compliance has expired under O.3 r.5(1) and 5(2) or under the inherent jurisdiction of the Court.”

43.  However, Effiscient was a civil contempt case: see Effiscient Limited v Edward Eugene Lehman, CACV 177/2012 (3 April 2013), paragraph 14, per Fok JA (as he then was), giving the reasons for judgment of the Court of Appeal allowing Mr Lehman’s appeal against the decision of Harris J finding him guilty of contempt of court.  There is no dispute that in a civil contempt situation, the power to extend time under Order 3, rule 5(1) is available.  Hence, the existence of an inherent jurisdiction to extend time would not be contrary to or inconsistent with the express statutory rule in Order 53, rule 3(2).  Accordingly, the decision of the Court of Appeal in the Effiscient case is, in this respect, distinguishable for the present purpose.

44.  In all, I am of the view that the court has no inherent jurisdiction to grant any extension of time for compliance with the requirement of Order 53, rule 3(2).

Question (4) : exercise of discretion

45.  This question strictly does not arise in view of the conclusion that I have reached in relation to Question (3). Nevertheless, I shall express my views on it briefly in view of what has been said about the reasons given on behalf of the Secretary for Justice for the failure to comply with the requirement of Order 53, rule 3(2).

46.  The reasons are set out in an affirmation of Mr Suen Sze Yick, Acting Senior Government Counsel, made on 7 July 2015.  At paragraph 1 of that affirmation, Mr Suen states that he has the conduct of these proceedings on behalf of the Secretary for Justice.

47.  At paragraphs 2 and 3, Mr Suen states as follows:-

“ 2. Under Order 52, rule 3(2) of the Rules of the High Court (Cap.4A), the Originating Summons issued herein on 2 April 2015 should be entered for hearing within 14 days after leave was granted by the Honourable Mr Justice Chow on 20 March 2015. I was under the belief that the requirement of ‘entered for hearing’ under Order 52, rule 3(2) means the filing of the Originating Summons and therefore only caused the Originating Summons to be filed on 2 April 2015, i.e. within 14 days of the granting of leave on 20 March 2015.

3. However, upon further research, I realized that the requirement of ‘entered for hearing’ under Order 52, rule 3(2) actually pertains to the issue of a Notice of Appointment to Hear Originating Summons.  Unfortunately, due to an oversight of this procedural step, no Notice of Appointment to Hear Originating Summons was filed within 14 days of the grant of leave.  The oversight was situational given the large number of committal applications (18 in relation to the Injunction Order granted by the Honourable Mr Justice Au in HCA 2086/2014 (including the present proceedings) and 20 in relation to the Injunction Order granted by the Honourable Mr Justice Au in HCA2104/2014) being prosecuted by the Applicant at about the same time.”

48.  In short, the explanation given for the failure to comply with the requirement of Order 53, rule 3(2) is a misunderstanding of the relevant legal requirement caused by an oversight. Notwithstanding the strong criticisms which have been made by or on behalf of the respondents regarding the explanation appearing in Mr Suen’s affirmation, I see no reason not to accept that to be the true explanation of what happened. For my part, I am unable to think of any other reason why, but for an oversight, the Secretary for Justice or his officers would not have complied with the requirement of Order 53, rule 3(2).  None has been suggested by or on behalf of any of the respondents.

49.  If I had come to the conclusion that I have a discretion to extend time, I would have thought that one of the most important considerations would be that, if these proceedings are terminated by reason of the failure to comply with Order 53, rule 3(2), the Secretary for Justice would be able to commence fresh proceedings against the respondents for contempt of court.  The effect of a refusal to grant an extension of time would therefore merely be that further time and costs would be wasted.  For this reason, I believe that granting an extension of time would be a correct exercise of the court’s discretion.  As it is, I have come to the conclusion that the court has no discretion to extend time.  The issue therefore does not arise for decision.

DISPOSITION

50.  For the above reasons, I dismiss the Time Summons taken out in each action.  I consider that the leave granted to the Secretary for Justice to apply for an order of committal in each of these 17 cases on 20 March 2015 has lapsed by reason of the failure to comply with Order 52, rule 3(2).  I do not consider it necessary to grant any formal declaration to this effect, because the court’s reasons for its decision have already been fully set out.  I shall hear the parties on the question of costs and other outstanding issues.