Group Leader Ltd and Others v. The Personal Representative of the Estate of Leung Yin Mei, Deceased

CACV 61/2015
and CACV 110/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 61 and 110 OF 2015

(ON APPEAL FROM LDCS NO 27000 of 2011)

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BETWEEN

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(HEARD TOGETHER)

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JUDGMENT

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

1.We dismissed these appeals on 1 March 2016 and handed down our reasons for so doing on 16 March 2016.

2.Though the title of the appeals included a large number of respondents, only the 1^st to 9^th applicants and the 17^th respondent were parties to the appeal.  The 17^th respondent has not served any copies of the notices of appeal on the other respondents in accordance with Order 59 Rule 4.  At the hearing on 1 March 2016, we did not accede to the request of the 17^th respondent to adjourn the appeals for adding the other respondents as parties to the appeals.

3.After we dismissed the appeals, the 17^th respondent issued a Notice of Motion on 29 March 2016 seeking leave to appeal to the Court of Final Appeal.  Solicitors for the 17^th respondent, the Department of Justice [“DoJ”] served the Notice of Motion on the other respondents as well.

4.By a letter of 31 March 2016 sent only to DoJ and solicitors for the 1^st to 9^th applicants (on the basis that they were the only parties to appeals) the court enquired whether they agreed to have the motion processed on papers. 

5.In a joint letter of 7 April 2016 signed by DoJ and solicitors for the 1^st to 9^th applicants, they agreed to paper disposal of the Motion and directions for the filing of written submissions by them.

6.The court gave such directions accordingly on 14 April 2016.

7.The court became aware of the service of the motion on other respondents when a representative of the 16^th respondent wrote to the court seeking guidance in connection with the motion.  It appeared that the motion was served on the 16^th respondent on 29 March 2016.  On 8 April 2016, the representative responded by writing to DoJ stating that the 16^th respondent had not been a party to the appeals.  On 20April 2016, DoJ replied by stating that “the 16^th Respondent was made and intended to be made a party” in the appeals and the Motion was served on the 16^th respondent “who is intended to be made a party” to the applications for leave to appeal to the Court of Final Appeal.

8.In light of that confusion, the court replied to the 16^th respondent in a letter of 27 April 2016, copied to DoJ and solicitors for the applicants, stating as follows:

“ According to court record, the 16^th respondent is not a party to CACV 61/2015 and CACV 110/2015 as the Notices of Appeal had not been served on them. The 16^th respondent should seek advice from lawyers rather than from court.”

9.Notwithstanding such reply, on 6 May 2016, DoJ filed an ex parte application for directions for substituted service of the Motion on the 2^nd and 3^rd Respondents.

10.Initially, in view of the history of the matter, in a letter of 10 May 2016, the court invited DoJ to proceed by way of inter partes in order to have the question of whether the motion should be served on the other respondents to be properly ventilated at a hearing.

11.DoJ replied by a letter of 19 May 2016 questioning the court’s position that only the Appellants and the 17^th respondent were parties to the appeals before the court.  DoJ further indicated that irrespective of the position at the substantive hearing of the appeals, the 17^th respondent now intended to make the other respondents “parties to the process for the appeal against the Court of Appeal’s judgment” as their interest may be affected.

12.DoJ characterized the ex parte applications as an application for substituted service on the 2^nd and 3^rd Respondents as they could not be identified or located.

13.Having considered the submissions of DoJ in the letter of 19 May 2016, we find it necessary to set the record straight as to who were the parties in the appeals before us.

14.Since DoJ did not serve the notices of appeal on the other respondents, there had been no appeal as far as those other respondents were concerned.  Unless the 17^th respondent obtains extension of time to serve notices of appeal in another sets of appeals against these other respondents, they are entitled to regard the decision of the Tribunal on 8 October 2014 as final.  Up to now, there is no application for extension of time to serve any notice of appeal on those other respondents.

15.As far as this court is concerned, we only heard the appeals between the applicants and the 17^th respondent.  There was no effective appeal before us concerning the position of the other respondents.  In the context of these appeals, we did not have any jurisdiction to make any order which could affect the interest of those other respondents who were not parties before us.

16.It also follows from this analysis that even if there were to be any appeals to the Court of Final Appeal, the Court of Final Appeal cannot make any order affecting those other respondents since we have not heard any appeals concerning those persons.

17.It is wholly misconceived for the DoJ to suggest that they could simply make those other respondents as parties to the intended appeal to the Court of Final Appeal by serving the Notice of Motion on them. At the very least, DoJ must first apply for extension of time to serve a fresh set of appeals against those other respondents before the 17^th respondent could begin to challenge the finality of the decision of the Tribunal on 8 October 2014 as far as those respondents are concerned.

18.In the circumstances, the ex parte application for substituted service on the 2^nd and 3^rd respondents is likewise misconceived.  The 2^nd and 3^rd respondents should not be parties to the Motion as they were not parties to the appeals.

19.For these reasons, we dismiss the ex parte application of 6 May 2016.

Mr Kelvin Cheung, SGC of the Department of Justice, for the 17^th respondent