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Chan Cheuk Tong v. Director of Lands

Read the full judgment text of CACV 223/1995 on BabelCite. This Court of Appeal judgment was delivered on 4 September 1996 before Nazareth V.-P., Bokhary JA, Godfrey JA.

Civil procedure – appeal – Lands Tribunal – striking out notice of appeal – point of law – ignorance of procedure – compensation for land investment – Foreshore and Seabed (Reclamation) Ordinance, Cap. 127 – Lands Tribunal Ordinance s.11(2) – Rules of the Supreme Court O60A r.2 – inherent jurisdiction – frivolous or vexatious – abuse of process – whether court has power to hear appeal without point of law – Aviagents Ltd v Balstravest Investments Ltd – Burgess v Stafford Hotel Ltd – appeal not competent – notice of appeal struck out – appellant in person

Legal issues: Striking out notice of appeal for failure to raise a point of law

Outcome: Notice of appeal struck out; appeal dismissed as not competent.

Case No.CACV 223/1995
Court
Court of Appeal
Date04 Sep 1996
JudgeNazareth V.-P., Bokhary JA, Godfrey JA
Case Document
100%Judiciary

CACV000223/1995

IN THE COURT OF APPEAL

1995, No. 223

(Civil)

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BETWEEN
CHAN CHEUK-TONG Applicant (Appellant)
AND
DIRECTOR OF LANDS Respondent (Respondent)

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Coram: Hon Nazareth V.-P., Bokhary and Godfrey JJ.A.

Date of hearing: 4 September 1996

Date of judgment: 4 September 1996

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J U D G M E N T

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Nazareth V-P:

1. It is not necessary for me to set out at length the facts of this matter. They are detailed in the judgment of the presiding officer which is now reported in [1995]3 HKC 199. Suffice it to say that by his decision which was given on 20th July 1995, the presiding officer refused to grant the application made to him for an extension of time to serve a notice of claim on the Director of Lands under the Foreshore and Seabed (Reclamation) Ordinance, Cap. 127.

2. The applicant now seeks to appeal that decision to this Court. His homemade notice of appeal dated 8th November 1995 specifies only two grounds of appeal:

"(1) Our omission for making objection under section 6 of Foreshore & Sea-bed Ordinance is due to our ignorance about the application procedure of claiming compensations.

(2) It's justice to compensate at least for the investment if not for the land."

3. The respondent on 18th July 1996 wrote to the applicant inviting him to provide the court and the respondent with the questions of law he wished the court to determine. The applicant having failed to do so, the respondent on 13th August 1996 applied under s.11 of the Lands Tribunal Ordinance and O60A of the Rules of the Supreme Court for an order that -

(a) The notice of appeal be struck out and the appeal be dismissed under the inherent jurisdiction of the court on the grounds that:

(i) the appeal is frivolous or vexatious, or an abuse of the process of the court; and

(ii) that the appellant failed to specify the grounds of appeal together with the question of law to be decided by the Court pursuant to s.11 of the Lands Tribunal Ordinance and O60A of the Rules of the Supreme Court.

4. Section 11(2) of the Lands Tribunal Ordinance provides that an appeal against the decision of the Lands Tribunal Ordinance can only on the ground that it is erroneous in point of law. Rule 2 of O60A of the Rules of the Supreme Court provides that a notice of appeal must specify the ground of appeal together with the questions of law to be decided by the Court of Appeal. Neither of the two grounds specified in the applicant's notice of appeal discloses a point of law. That is clear and obvious, and no inquiry into the facts is necessary. Therefore, this Court plainly has no power to hear the appeal at all. It does not lie. It is not a competent appeal. This Court must have an inherent power to control its own proceedings and where it is confronted with an attempt to appeal in circumstances where no appeal lies, clearly this Court has power to give effect to its decision and strike out the notice of appeal. (Aviagents Ltd v Balstravest Investments Ltd [1966]1 All ER 450, 452 G-H; and Burgess v Stafford Hotel Ltd [1990]3 All ER 222) There being no reasons why the notice of appeal should not be struck out and every reason why it should, I would strike it out.

5. I add, the applicant not having had the benefit of legal representation, that so far as I am able to see, the material before this Court does not disclose any error in point of law upon which he could rely.

Bokhary JA:

6. I am of the same opinion.

Godfrey JA:

7. I agree with the judgment of my Lord, the Vice-President. It is essential, when an appeal lies solely upon a point of law, that the appellant should specify in his notice of appeal what the point of law is which he wishes to take. The notice of appeal before us fails to do that and accordingly the appeal is, as my Lord has said, not competent.

8. For these reasons, then I, too, would accede to the application made to us and strike out the notice of appeal.

(G.P. Nazareth) (K. Bokhary) (G.M. Godfrey)
Vice President Justice of Appeal Justice of Appeal

Representation:

Appellant in person

Miss Phyllis Wong (Senior Crown Counsel) for the Respondent