Miss LEUNG SO HUNG SIEM v. Mr CARSON WEN AND OTHERS

CACV 514/2018

[2019] HKCA 94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 514 OF 2018

(ON APPEAL FROM HCA 121/2017)

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REASONS FOR JUDGMENT
& DECISION ON COSTS

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Hon Lam VP (giving the Reasons for Judgment and Decision on Costs of the Court):

1.  The background leading to today’s hearing has been set out in our judgment of 26 November 2018.

2.  We have now had the benefit of the submissions of the parties in light of the transcript of the hearing of 16 July 2018.

3.  As mentioned at the outset of this hearing, we shall confine to determine if leave is necessary before this appeal can be brought.  The Plaintiff has not sought leave and we are not going to consider whether leave would be granted if she actually applies for leave.  If leave is required and no leave has been granted, the appeal should be struck out as being incompetent.  It is up to the Plaintiff to consider if she wishes to apply for leave and, if she does, application for leave under Section 14AA would have to be made to the Court of First Instance in the first place.  We shall not pre-empt at this stage any decision on such future application, if any. 

4.  As foreshadowed in our judgment of 26 November 2018, there are two distinct potential reasons for leave being required before this appeal can be brought.  First, the appeal is brought out of time.  Second, there is a leave requirement under Section 14AA of the High Court Ordinance in respect of an appeal against an interlocutory decision of the Court of First Instance.

5.  We shall deal with second reason first because, as explained during the course of hearing, if Section 14AA leave is required, time to serve notice of appeal does not start to run until leave is granted.  Order 59 Rule 4(a) prescribes that the time limit for such an appeal is 7 days after the grant of leave. However, there are time limits for the application for Section 14AA leave, see Order 59 Rule 2B(1) and (3) though such application can be made with an application for extension of time. The application should, in the first round, be made to the Court of First Instance.

6.  In the present case, the Plaintiff had not made any application for leave under Section 14AA, whether in the Court of First Instance or in the Court of Appeal. 

7.  The actual decision of the Recorder was the refusal to grant extension of time to the Plaintiff to appeal against the decision of the master in striking out the appeal.  The decision of the master was made on 26 April 2018, and the Plaintiff’s notice of appeal was brought on 23 May 2018, beyond the 14 days prescribed by Order 58 Rule 1(3).  Thus, the Recorder was correct in holding that the Plaintiff needed to have an extension of time for bringing that appeal.

8.  The Recorder decided not to grant such extension and dismissed the appeal accordingly, see [12] of his Reasons for Decision of 6 September 2018.

9.  In Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440, it was held that the refusal to grant an extension of time for an application for judicial review to be made is an interlocutory decision, the appeal against which is subject to the requirement of leave under Section 14AA.

10.  Similar holdings can be found in respect of refusal of extension of time in other contexts, see Lo King Yeung v Eddie Chu Hoi Dick [2017] 4 HKLRD 723 (Au J); CAMP 18 and 19/ 2017, 6 Nov 2017 (CA); Astro Nusantara International BV v PT Ayunda Prima Mitra (No 2) [2016] 1 HKLRD 591; China Metal Recycling (Holdings) Ltd v Chun Chi Wai HCA 1412/2013, 6 May 2016.

11.  Order 58 Rule 1(3) makes it clear that an appeal against a decision of a master cannot be brought beyond the prescribed 14-day time limit from the date of that decision unless the Court of First Instance otherwise orders.  Thus, like the situation in bringing judicial review out of time, the order for allowing such an appeal to be brought out of time is a prerequisite to a proper appeal to be entertained. 

12.  Hence, we are of the view that the decision of the Recorder in refusing to grant an extension of time is an interlocutory decision.  Leave has to be obtained under Section 14AA before the appeal can be brought.

13.  As the Plaintiff has not obtained such leave and she did not make any application for the same, the present appeal is incompetent, see Fok Hing (HK) Trading Ltd v Gunawan-Indra CACV 74 of 2014, 4 July 2014; Kwok Cheuk Kin v Leung Chun Ying [2018] 4 HKC 440.

14.  Thus, we struck out the appeal for want of leave under Section 14AA at the hearing on 8 January 2019.

15.  In respect of the time limit question, in light of our decision based on Section 14AA, the time limit for service of notice of appeal has not yet expired though the Plaintiff cannot bring a valid appeal without Section 14AA leave.

16.  Notwithstanding so, we should express our view on the question if the Recorder had made an oral determination on 16 July 2018 in light of the serious allegation of impropriety advanced against the Recorder.  Having heard submissions of the parties in light of the transcript of 16 July 2018, it is clear to us that the Recorder did make an order dismissing the appeal on that date though he reserved reasons to be given later.  The order took effect immediately upon the oral pronouncement of that decision.  The fact that the reasons were only handed down on 6 September 2018 does not postpone the immediate effect of that order as from 16 July 2018.  In this connection Order 42 Rule 3 of the Rules of High Court sets out the legal position clearly,

“ 3. Date from which judgment or order takes effect (O. 42, r. 3)

(1) A judgment or order of the Court takes effect from the day of its date.

(2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day.

(3)  A judgment or order shall take effect for the purposes of this rule notwithstanding that the reasons therefor may not be given until a later date.”

17.  There is thus no merit in the Plaintiff’s contention that because the reasons were not handed down until 6 September 2018, the order made orally on 16 July 2018 did not have effect until the later date.

18.  Equally, there is no merit in the Plaintiff’s contention that the Recorder intended to withhold the making of the order.  The Recorder clearly said he would dismiss the appeal after hearing submissions on extension of time for the appeal against the decision of the master.  That was clearly an oral pronouncement of the order.

19.  After that order, the Recorder proceeded to hear submissions on costs based on the dismissal of the appeal.  Counsel for the Defendants and the Plaintiff addressed the Recorder on costs based on a statement of costs prepared by the solicitors for the defendants.  One may ask rhetorically, if the Recorder had not dismissed the appeal there and then, why would he proceed to hear submissions on costs of the Defendants? 

20.  The Recorder’s Reasons for Decision confirmed that the decision was given orally on 16 July 2018 (which was recorded as the date of the Decision). 

21.  Since the Plaintiff took part in the submissions on costs before the Recorder, she should also be aware that the Recorder had made the decision dismissing her appeal orally.

22.  The fact that the sealed order did not become available is neither here nor there.  The position is governed by Order 42 Rule 3(2).  Since it was an appeal brought by the Plaintiff, she could have prepared the draft order for approval by the court, see Order 42 Rule 5(5).  Since she did not do so, it was also open to the Defendants’ solicitors to do so after 7 days from the date of the order. 

23.  In any event, as mentioned, the date when the sealed order was served has no bearing on the time when the oral decision becoming effective.  The oral order took effect upon its pronouncement in court on 16 July 2018.

24.  As explained, it was open to the Plaintiff to prepare a draft order and have it sealed in order to facilitate the bringing of the appeal.  Her failure to do so cannot postpone the time for bringing an appeal.  If necessary, she could apply for extension of time to lodge the sealed order pursuant to Order 59 Rule 5(1)(a) which is a separate obligation from the service of the notice of appeal within time under Order 59 Rule 4(1), see Keen Lloyd Holdings Ltd v Commissioner of Customs & Excise [2015] 2 HKLRD 909; Chan Tsui Yan v Social Workers Registration Board [2018] HKCA 333.

25.  Hence, if the order of the Recorder were not an interlocutory one, the Plaintiff would need to seek an order for extension of time to bring the appeal under Order 3 Rule 5 by virtue of Order 59 Rule 4. The notice of appeal was served on 4 October 2018, beyond the 28 days prescribed for appeal which does not require leave under Section 14AA.

26.  However, as we have held that the order of the Recorder was an interlocutory order, the problem in this appeal was the lack of leave under Section 14AA instead of it being brought out of time.

27.  For these reasons, we struck out the appeal and dismissed the same at the hearing on 8 January 2019.

28.  We heard submissions on costs after our dismissal of the appeal. Notwithstanding that we struck out the appeal for want of leave instead of holding against the Plaintiff on the merits of her grounds of appeal, it remains that she should not have brought the appeal before Section 14AA leave is obtained.  We cannot see any reason for departing from the usual order of costs following event.

29.  We order the Plaintiff to pay the costs of the 1^st, 4^th and 5^th Defendants.  We do not find the present case to be an appropriate case for ordering indemnity costs against the Plaintiff.  Instead, we would fix the costs summarily by reference to the statement of costs of these defendants on party-to-party basis.  We would cut some photocopying charges in light of the fact that many documents in the hearing bundle are not necessary for the purpose of the hearing on 8 January 2019 and reduce the costs under C1 and C3, D1 and D3 in view of the nature of this hearing.  We fix the costs payable by the Plaintiff to these Defendants at $75,000.