Chu on Fong Winter v. The Appeal Panel (Housing) and Another

HCAL 79/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2017

---------------------------------

---------------------------------

Before: Hon Au J in Chambers

Date of Hearing: 7 April 2017

Date of Decision: 12 April 2017

---------------------------

D E C I S I O N

---------------------------

A. INTRODUCTION

1.The applicant has been a tenant of a public housing rental flat.  She applied for leave to apply for judicial review on 15 March 2017 to challenge the Appeal Panel’s decision to uphold the Notice to Quit issued to her by the Housing Authority for proven failure to maintain continuous residence at the flat.   This court refused the leave application on paper on 22 March 2017, on the basis that the intended judicial review is not reasonably arguable.  The reasons have been set out in the Form CALL-1.

2.The applicant says she intends to appeal to the Court of Appeal against the above refusal of leave.  Under O 53 r 3(4) of the Rules of High Court (Cap 4A), she has 14 days from 22 March 2017 to file a Notice of Appeal to do so.  The appeal period therefore should expire on 5 April 2017. 

3.This is now her application by way of a summons filed on 5 April 2017 seeking an extension of time to lodge the appeal[1]. In support of her time extension, she says she wants to seek legal advice regarding her intended appeal, but she has been unable to do so within the 14-day period because of her medical and personal reasons.  I will explain these reasons further when I deal with this application below.

B. THIS APPLICATION

4.It must first be emphasized that rules of the court generally shouldbe complied with.  Thus, although the court retains a discretion to extend time, it would only exercise the discretion to extend time if the applicant has shown a good explanation for the delay and that the intended appeal is not hopeless (if there is a good explanation for the delay) or has a good prospect of success (if the delay is not substantial even though there is no good reason to explain the delay). The mere fact that the extension of time may not cause prejudice to the other party is not by itself a ground for extending time.  See: Hong Kong Civil Procedure 2017, para 59/4/9; Mahesh Rai v Secretary for Security (HCMP 1337/2009, 30 July 2009, Yuen JA) at paragraphs 7-10.

5.It should be noted that the applicant’s time extension summons is not supported by any draft Notice of Appeal setting out the grounds of appeal, nor has it been stated in the supporting affirmation what the proposed grounds of appeal are.  Moreover, in this application, the applicant has asked for an extension of time for “as long as possible”.  She clarified at the hearing that by “as long as possible”, she meant “for whatever length of the extension time the court would allow in the present case”.

6.In summary, the applicant’s principal reason made in support of time extension is that she needs more time to seek legal advice through legal aid to prepare for the intended appeal, and she has been prevented from doing so for the following reasons:

(1) She was hospitalised for 1 day between 15 and 16 March 2017 as well as for 3 days between 1 and 3 April 2017[2].  She also attended a private diagnostic test on 21 March 2017 and would need to attend specialist consultation on 9 May 2017 due to her health problems;

(2) She had to move her sole business to another premises on 29 March 2017 because she had to vacate the original office after she had refused to renew the tenancy due to unacceptable rent increase;

(3) 4 April 2017 was a public holiday; and

(4) She indeed “contacted” the Legal Aid Department on 24 March 2017, but she has yet to be able to see a lawyer.

7.I do not accept the applicant’s above explanations as good reasons justifying the failure to file the intended appeal within the 14-day period. 

8.First, it is now well established that the mere lack of pro bono or legal aid assistance alone is generally not regarded as a sufficient basis for an extension of time: Nisa Azizan and Anor v Director of Immigration and Anor (unreported, HCAL 203/2015, 15 April 2016, Chow J) at paragraph 57 and the cases cited therein; also Mahesh Rai, supra, at paragraph 12.

9.Second, it is pertinent to note that she had all along acted in person in her leave application for judicial review and her appeal before the Appeal Panel.  She had drafted respectively the Form 86 in support of the intended judicial review and the grounds of appeal before the Appeal Panel.  She is therefore very familiar with her case.  There is therefore no good reason why she could not have first filed her Notice of Appeal within the 14-day period if she had wanted to appeal against the leave refusal, and waited for her legal aid process (if she has in fact already made an application for legal aid). 

10.Third, in relation to the applicant’s reliance on various events to say that her time to seek legal advice or prepare the intended appeal has been significantly handicapped, it must also be noted that:

(1) For her 1-day admission to Pok Oi Hospital late night on 15 March 2017 “for flu like symptoms” and her attendance of a diagnostic scan on 21 March 2017 in relation to her thyroid condition which has been there for 14 years, these all took place before the court’s refusal of the leave application on 22 March 2017, and thus also before the commencement of the 14-day appeal period.  Similarly, the consultation scheduled on 9 May 2017 for her bradycardia condition is well after the 14-day period.   All these events therefore have nothing to do with the appeal period and the preparation of the intended appeal within that period. 

(2) As for the hospitalization between 1 and 3 April 2017. That had only taken up 3 days of the 14-day period. 

(3) The moving of her business alleged to have taken up one day of the appeal time period also would not explain why she could not have used the other days within the 14-day time limit to seek legal advice or draft her own Notice of Appeal.   It is noted that this alleged occasion of having the need to move the office on 29 March 2017 because of the expiry of the tenancy as she did not renew it is in any event not supported by any documentary evidence.

(4) Similarly, the one day holiday on 4 April 2017 could not explain why she could not have sought any legal advice (if she had wished to do so) on any other days of the 14-day period or drafted the Notice of Appeal herself.

11.When all the above are viewed together in context of the general position that the lack of legal assistance is not a good excuse to extend time, I am not satisfied that the applicant has provided justification for the inability to file the intended appeal within the statutory appeal period.

12.Further, and more importantly, the applicant has also failed to show (and the burden is on her) any merits of her intended appeal:

(1) She has not put forward any draft Notice of Appeal or stated in her supporting affirmation any proposed grounds of the intended appeal to say why the court’s reasons for refusing leave are wrong. 

(2) At the hearing, other than seeking to repeat her grounds as stated in the leave application, she also was not able to raise any matters or propose any grounds to say why she has a reasonably arguable judicial review against the Appeal Panel’s decision.  For the reasons I have set out in the Form CALL‑1, I do not find those grounds set out in her leave application reasonably arguable. The intended appeal therefore similarly has no merits.

13.In the premises, the intended appeal is in my view hopeless.

14.Given that the delay is not excusable and in any event the intended appeal is without merits, applying the principles set out at paragraph 4 above, this court in the exercise of discretion has to refuse the time extension application.

C. CONCLUSION

15.For all the above reasons, the application for extension of time is refused.  The applicant may of course consider applying directly to the Court of Appeal for an extension of time to appeal if she wishes to do so.

The applicant, unrepresented, appeared in person.