Park Lomen Inn Ltd v. Appeal Board(Hotel and Guesthouse Accommodation)

CACV 171/2015

CIVIL APPEAL NO. 171 OF 2015

(ON APPEAL FROM HCAL NO. 143 of 2014)

___________________________

___________________________

__________________

JUDGMENT
__________________

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

1.We dismissed the appeal on 4 August 2015. On 1 September 2015, the then solicitors for the Applicant lodged an ex-parte summons seeking the following relief:

“ 1. The Applicant do have leave to file and serve the Notice of Appeal and Application for leave to appeal to Court of Final Appeal within 7 days from the date of this order, where appropriate, notwithstanding the time for doing so has expired; and

2.   There be no order as to costs of this application.”

2.Since the appeal had been heard on inter partes basis (see our judgment of 4 August 2015), it was wholly inappropriate to proceed by way of ex parte application.  On 2 September 2015, the court directed the Applicant to serve the summons on the proposed respondent and the interested party within 3 days.  Directions were also given for the processing of the application on paper.

3.The relevant provision governing the procedures for seeking leave to appeal to the Court of Final Appeal is to be found in Section 24 of the Hong Kong Court of Final Appeal Ordinance Cap 484.  It should be made by a notice of motion, not a summons.  It should be filed within 28 days from the date of the judgment to be appealed from.  Notice of the application should also be given to the opposite party within those 28 days. 

4.Thus, even if one were to treat the application by summons as if it were an application by motion, the Applicant was out of time in the service of the requisite notice. 

5.The Applicant did not comply with that direction for service.  Instead, the then solicitors for the Applicant applied to cease to act for the Applicant.  Order to that effect was granted on 2 October 2015.

6.On 12 October 2015, the court wrote to the Applicant asking for explanation why the summons should not be dismissed for want of prosecution in view of the non-compliance with the direction for service.

7.On 19 October 2015, another firm of solicitors came on the record to act for the Applicant.  That firm of solicitors wrote to the court seeking an extension of time to reply to the letter of 12 October 2015.

8.On 20 October 2015, the court granted an extension up to 28 October 2015. 

9.On 28 October 2015, that firm of solicitors wrote to the court and put forward a proposed timetable for dealing with the summons. 

10.On 30 October 2015, the court gave directions based on that proposed timetable, with some amendments on the dates.  Under such directions, the Applicant should file and serve evidence and submissions in support of the application by 5 November 2015.  It was also provided that if the Applicant did not comply with such timetable, the summons of 1 September 2015 shall be dismissed without further order.   

11.On 3 November 2015, the summons was served on the proposed respondent and the interested party.

12.On 5 November 2015, an affirmation of Tong Yat Kai was filed in support of the application.  However, no submission was filed.  No draft notice of appeal was placed before the court and there was nothing in the papers lodged or filed on behalf of the Applicant to show what the intended grounds of appeal were and on what basis the Applicant submitted that the application for leave could satisfy section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

13.Pursuant to the directions, counsel for the Interested Party lodge submission in opposition on 12 November 2015.

14.The Applicant did not lodge any submissions in reply before the deadline of 19 November 2015 imposed by the directions of 30 October 2015.

15.It was only on 2 December 2015 that counsel for the Applicant lodged submissions in the guise of submissions in reply which for the first time attempt to put forward the grounds of appeal of the Applicant.  The grounds were not formulated in a proper notice of motion or draft notice of appeal.  So far as one can gather from the submissions, there is only one point, viz that the cancellation of the licence was the imposition of second punishment on the Applicant and infringes the rule against double jeopardy. 

16.In our judgment, the so-called submissions in reply were in substance submissions in support of the application which should have been filed on or before 5 November 2015.  There cannot be a proper application for leave to appeal without setting out the grounds of the intended appeal and the proper formulation of questions for the court’s consideration as to whether they satisfy the requirement of Section 22(1)(b) of the Ordinance.  From the history of the matter, it is a blatant case of the Applicant’s failure to comply with the directions of the court. According to the directions of 30 October 2015, the summons should be regarded as dismissed on the ground of such non-compliance. 

17.Alternatively, even if further indulgence is granted for the consideration of the grounds of appeal as set out in the submissions of 1 December 2015, we do not find the proposed grounds to be reasonably arguable.  The so-called double jeopardy was not a point that had been raised before, whether at the first instance or in the appeal.  In any event, it is a complete misconception to regard the cancellation of licence as a second penalty.  As explained in our judgment in the substantive appeal, the Superintendent (and the Appeal Board) exercised a regulatory function and the cancellation of licence was an exercise of power in such context.  There is no reason why leave should be granted for such an appeal to be brought in the Court of Final Appeal.

18.In light of the utter lack of merit in the intended appeal, though we have the power to grant extension of time for the service of requisite notice of intention to appeal, we refuse to grant such extension.

19.The summons is dismissed with costs.  Pursuant to Order 42 Rule 5B(6), we provisionally fix the costs of the Interested Party on a gross sum basis at $20,000.

Mr Devin C I Sio, instructed by Cheung & Yeung, for the applicant.

Mr Vincent Yeung of the Department of Justice, for the interested party.