Canton Plus Enterprise Ltd and Another v. Tong Zhenjun and Others

HCA 227/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 227 OF 2017

______________

Before:  Deputy High Court Judge Kwok SC in Chambers

Date of Hearing:  29 November 2017

Date of Decision:  15 December 2017

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D E C I S I O N

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Introduction

1.The issue for my decision is whether the application for leave to appeal against my interlocutory order was out of time.

2.The Writ endorsed with a Statement of Claim was issued on 27 January 2017.  Lau Wing Yan (劉永人) was named as the 3^rd defendant.  Chu Kong (朱江) was not named as a party in the Writ.

3.The Defence of the 3^rd, 5^th to 8^th defendants and Counterclaim of the 3^rd defendant was dated 31 May 2017.  Chu Kong (朱江) was named as 1^st defendant in the Counterclaim.  Sit Fung Kwong and Shum did not acknowledge service of the Counterclaim on behalf of Chu Kong (朱江) until 30 August 2017.

4.The Statements of Truth in the following pleadings were signed by Chu Kong (朱江):

(1) Statement of Claim, as director of the 1^st and 2^nd plaintiffs, on 27 January 2017;

(2) Voluntary Further and Better Particulars of the Statement of Claim, as director of the 1^st and 2^nd plaintiffs, on 22 June 2017; 

(3) Reply to the Defence of the 1^st and 2^nd defendants, as director of the 1^st and 2^nd plaintiffs, on 1 September 2017[1]; and

(4) Reply to the Defence of the 3^rd, 5^th – 8^th defendants and Defence to Counterclaim of the 3^rd defendant, as director of the 1^st and 2^nd plaintiffs and as the “1^st Defendant by Counterclaim”, on 1 September 2017[2].   

5.On 1 August 2017, Sit Fung Kwong & Shum, describing themselves as “Solicitors for the 1^st and 2^nd Plaintiffs”, issued a summons against the 3^rd defendant (by Original Action)[3] for the following orders to be made:

“ 1. The 3^rd Defendant (by Original Writ)[4] be ordered to provide to Mr Chu Kong acting in the name of the 1^st and 2^nd Plaintiffs [5](“Mr Chu”[6]) in writing within 7 days thereof, a list of all properties removed from the [sic] Rooms 1901, 1902 and 1912, 19^th Floor, West Tower, Shun Tak Centre, Nos 168–200 Connaught Road Central, Hong Kong (the ‘Property’) on 16 June 2017;

2. Until trial or further order, the 3^rd Defendant (by Original Writ)[7]be ordered to deliver up within 3 days hereof all documents removed from the Property on 16 June 2017 (the ‘Removed Documents’) to the office of Messrs Zhong Lun, or alternatively, Messrs DLA Piper, or alternatively, such other places as may be agreed between the 3^rd Defendant[8] and [Chu Kong (朱江)][9] (the ‘Storage Location’), subject to an undertaking not to release the same without the consent of the parties or an order of the Court; and

3. Until the trial or further order, the 3^rd Defendant (by Original Writ)[10] be ordered to enable reasonable repeated access into the Storage Location and the inspection of the Removed Documents by [Chu Kong (朱江)][11] whether acting by himself or by his agents or otherwise, upon the giving of 24 hours’ notice.

Dated this 1^st day of August 2017”

6.At least one other application in a related action[12] was listed before me on 4 August 2017.  Neither the application in that action nor the Order I made in that action was included in the hearing bundles for the hearing on 29 November 2017.

7.On 4 August 2017, Mr Clifford Smith SC, leading Mr Michael Lok[13] and Ms Cherry Xu, instructed by Sit Fung Kwong & Shum[14], appeared for the plaintiff in HCA 197/2017 and the 1^st and 2^nd plaintiffs in HCA 227/2017.  Ms Catrina Lam and Mr Vincent Chiu, instructed by Zhong Lun Law Firm, appeared for the defendant in HCA 197/2017.  Mr Douglas Lam SC, leading Mr Martin Kok[15], instructed by DLA Piper Hong Kong[16], appeared for the 3^rd defendant in HCA 227/2017[17].

8.In §1(2) of their “Skeleton Submissions of the Applicants/‌Plaintiffs” for the hearing on 4 August 2017, Mr Clifford Smith SC, Mr Michael Lok and Ms Cherry Xu stated that the application in HCA 227/2017 was an “application by [Chu Kong (朱江)] in the name of” the plaintiffs[18] for orders against Lau Wing Yan (劉永人).

9.In the course of his submission, Mr Clifford Smith SC referred to Chu Kong (朱江) as “my client[19]” [20].

10.At the resumed hearing in the afternoon of 4 August 2017, I had been given 4 draft orders, 2 in landscape form submitted by the team led by Mr Clifford Smith SC and 2 in portrait form submitted by the team led by Mr Douglas Lam SC.  None of these 4 draft orders was included in the hearing bundles for the hearing on 29 November 2017.  Sit Fung Kwong and Shum and Mr Michael Lok were solicitors and counsel present at the 4 August 2017 hearing and should have a copy of those 4 draft orders.  So were DLA Piper Hong Kong and Mr Martin Kok.

11.After hearing counsel, I indicated the orders which I proposed to impose and went on to say that:

“ Unless there is any violent disagreement I will ask the parties to come up with a draft to give effect to what I have indicated.”[21]

12.No written communications (a) among solicitors for the parties and (b) between solicitors for the parties and my clerk leading to the approval by my clerk of the formal order(s) was included in the hearing bundles for the hearing on 29 November 2017.  This is perplexing since the parties were to “come up with a draft to give effect to what I have indicated”.  The court should be provided with copies of written communications to see if the parties had time and opportunity to come up with their own drafts and comment on drafts prepared by the others.  The parties and their legal advisers must present a complete, balanced and relevant picture of how the Order sought to be appealed against came to be made.

The Interlocutory Order (dated 4 August 2017)

13.I made an Order dated 4 August 2017 (“Interlocutory Order”) in HCA 227/2017 which read as follows:

“ Upon the application of the 1^st and 2^nd Plaintiffs (by Original Action) (the ‘Plaintiffs’) by way of Summons filed herein on 1 August 2017 (the ‘Summons’)

AND UPON reading the Affirmation of [Chu Kong (朱江)][22] filed herein on 2 August 2017 together with the exhibits referred to therein and the Affirmation of [Lau Wing Yan (劉永人)] filed on 3 August 2017 together with the exhibits referred to therein

AND UPON hearing Senior Counsel for the Plaintiffs and Senior Counsel for [Lau Wing Yan (劉永人)]

IT IS ORDERED that:-

1. [Chu Kong (朱江)] (‘Mr Chu’), the 1^st Defendant by Counterclaim herein) and Mr Lau Wing Yan (‘Mr Lau’, [Lau Wing Yan (劉永人)]), do by 4:00 pm on 18 August 2017 jointly appoint an independent third party firm of solicitors (the ‘said Firm’) for the purposes mentioned below. In the event that the parties cannot agree on the firm to be appointed, a firm be nominated by the President of the Law Society shall be appointed;

2. [Lau Wing Yan (劉永人)] do provide to the said Firm access to all documents within his possession, custody or power (including those previously located in Rooms 1901, 1902 and 1912, 19^th Floor, West Tower, Shun Tak Centre, Nos. 168–200 Connaught Road Central, Hong Kong (the ‘Property’)) belonging to the companies listed in the Appendix herein (the ‘said Companies’), by 4:00 pm on 18 August 2017 for the purpose of making copies, save and except such documents as to which there is a claim of privilege or other reason for not providing a copy, which dispute shall be agreed or decided by a Master of the High Court;

3. [Chu Kong (朱江)] do provide to the said Firm access to all documents within his possession, custody or power belonging to the said Companies (if any) by 4:00 pm on 18 August 2017 for the purpose of making copies, save and except such documents as to which there is a claim of privilege or other reason for not providing a copy, which dispute shall be agreed or decided by a Master of the High Court;

4. The said Firm do retain and safekeep the copies of the documents made pursuant to paragraphs 2 and 3 above, and shall not release the same to any other party (including[Chu Kong (朱江)] and [Lau Wing Yan (劉永人)]) without further order of the Court or agreement of [Chu Kong (朱江)] and [Lau Wing Yan (劉永人)]. Upon completion of copying in paragraphs 2 and 3 above, the said Firm shall return the original documents;

5. Costs of the said Firm (including storage costs) in relation to performance of paragraphs 1 to 4 above be shared by [Chu Kong (朱江)] and [Lau Wing Yan (劉永人)] in equal shares at first instance, such costs shall form part of the costs of the Action herein;

6. The Summons be adjourned for argument with 1 day reserved in consultation with Counsel’s diary;

7. [Lau Wing Yan (劉永人)] do have leave to file and serve affirmation evidence in opposition to the Summons by 4:00 pm on 1 September 2017;

8. The Plaintiffs do have leave to file and serve affirmation evidence in reply by 4:00 pm on 22 September 2017 (if so advised);

9. There be no further affirmation evidence without leave of the Court;

10. Costs of the Summons and today’s hearing be reserved with certificates for two counsel.

Dated the 4^th day of August 2017.

[The Appendix to the Interlocutory Order contains a list of 31 companies.]”

Summons for leave to appeal (dated 14 September 2017)

14.On 14 September 2017, Sit Fung Kwong & Shum, describing themselves as “Solicitors for the Plaintiffs (by Original Action) and the Defendants (by Counterclaim)”, issued a summons containing an application by the “1^st and 2^nd Plaintiffs (by Original Action) and the 1^st Defendant (by Counterclaim)[23] ” (“Applicants”) for an order that:

“ 1. The 1^st and 2^nd Plaintiffs (by Original Action) and the 1^st Defendant (by Counterclaim)[24] do have leave to appeal against paragraphs 2 and 3 of the Order of Deputy High Court Judge Kwok SC dated 4^th August 2017 (the ‘Order’) to the extent and upon the grounds as per the draft Notice of Appeal annexed hereto;

2. There be a stay of execution of paragraph 3 of the Order pending the final determination of the said appeal [25]; and

3. Costs of this application be in the cause of the said appeal.

Dated this 14^th day of September 2017.”

Lau Wing Yan (劉永人)’s application for stay

15.On 23 November 2017 [26], DLA Piper Hong Kong, describing themselves as solicitors for the 3^rd, 5^th – 8^th defendants, issued a summons containing an application by the 3^rd defendant (by Original Action)[27] for an Order that:

“ 1. In the event that (a) leave to appeal is given under Paragraph 1 of the Summons filed by the Plaintiffs (by Original Action) and the 1^st to 3^rd Defendants (by Counterclaim[28] on 14 September 2017 (the “Summons”) and/or a stay of execution pending the said appeal is granted under Paragraph 2 of the Summons, there be a stay of execution of paragraph 2 of the Order of Deputy High Court Judge Kwok SC dated the 4 August 2017 pending the final determination of the said appeal; and

2. Costs be provided for.”

Issue raised on 29 November 2017

16.At the hearing on 29 November 2017, I asked Mr William Wong SC whether the application for leave to appeal against the Interlocutory Order was in time.  Mr William Wong SC said it was and added that if it was not, he would ask for leave to appeal out of time.  I asked for authorities.  Mr William Wong SC asked for time and I stood down the hearing at his request.  At the resumed hearing, he cited section 31 of the High Court Ordinance, Cap 4, and Chung Fai Engineering Co v Maxwell Engineering Co Ltd [2001] 3 HKC 24 in support of his contention.

17.After hearing counsel, I said I would consider whether the application was made in time and would hand down my decision on 15 December 2017.

Relevant statutory provisions

18.Section 31(1) of the High Court Ordinance, Cap 4, as amended by section 23 of Ordinance No 52 of 1987 and section 2 of Ordinance No 25 of 1998, reads as follows:

“ Computation of vacation period and validity of acts therein

(1) Where by any law regulating civil procedure, or by any special order of the High Court, any period not exceeding one month is appointed or allowed for the doing of any act or the taking of any proceeding, no days included in the Summer vacation shall be reckoned in the computation of such time, unless the Court otherwise directs: (Amended 52 of 1987 s. 23; 25 of 1998 s. 2)

Provided that nothing in this section shall be deemed to extend the time for entering appearance to any writ endorsed with a statement of claim.  (Amended 79 of 1979 s. 2)”

19.Section 29 of the High Court Ordinance provides that:

“ Vacations

(1) The following vacations shall be observed in each year in the High Court and the Registries— (Amended 25 of 1998 s. 2)

(a) the Summer vacation; (Amended 52 of 1987 s. 22)

(b) …

(c) ….

(2) The dates of the vacations referred to in subsection (1) shall be prescribed by rules of court.

(3) The days of the commencement and termination of each vacation shall be included in such vacation.”

20.Order 1, rule 4(1) of the Rules of the High Court, Cap 4A, defines “vacation” as meaning “the interval between sittings of the High Court as prescribed by Order 64; (25 of 1998 s. 2)”.

21.Order 64, rule 1 of the Rules of the High Court, Cap 4A, provides that:

“ Sittings of the Supreme Court (O. 64, r. 1)

(1) The sittings of the Court of Appeal and of the Court of First Instance shall be three in every year, that is to say— (25 of 1998 s. 2)

(a) the Winter sittings which shall begin on 4 January and end on the Thursday before Easter Sunday;

(b) the Spring sittings which shall begin on the second Monday after Easter Sunday and end on 31 July;

(c) the Autumn sittings which shall begin on 1 September and end on 23 December. (L.N. 404 of 1991)”

22.The combined effect of Order 1, rule 4(1) and Order 64, rule 1(1) is that the Summer vacation begins on 1 August and ends on 31 August.

Chung Fai Engineering Co

23.Chung Fai Engineering Co v Maxwell Engineering Co Ltd [2001] 3 HKC 24 was a decision by Keith JA (sitting alone) handed down on 10 April 2001.  He held that the time for serving a notice of appeal did not run during the month of August and that a notice of appeal cannot be said to be a pleading (within the meaning of Order 3, rule 3).  With respect, I am unable to derive any assistance from this case on the issue before me.

Civil Justice Reform

24.Prior to the Civil Justice Reform, a party has a right of appeal to the Court of Appeal against an interlocutory judgment or order of the Court of First Instance.

25.The Civil Justice Reform introduced the requirement of leave for interlocutory appeals.  Section 14AA[29] was added to the High Court Ordinance, Cap 4, by section 25 of the Civil Justice (Miscellaneous Amendments) Ordinance, 2008, Ord No 3 of 2008, to require leave to appeal. Section 14AA now provides as follows:

“ Leave to appeal required for interlocutory appeals

(1) Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.

(2) Rules of court may specify a judgment or order of any prescribed description to which subsection (1) does not apply and accordingly an appeal lies as of right from the judgment or order.

(3) Leave to appeal for the purpose of subsection (1) may be granted—

(a) in respect of a particular issue arising out of the interlocutory judgment or order; and

(b) subject to such conditions as the court hearing the application for leave considers necessary in order to secure the just, expeditious and economical disposal of the appeal.

(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

(5) This section does not apply in relation to an interlocutory judgment or order of the Court of First Instance made before the commencement of this section[30].

  (Added 3 of 2008 s. 25) ”

26.Section 14AA must be read with the relevant rule governing application for and grant of leave to appeal.  The relevant rule is Order 59, rule 2B which was added to the Rules of the High Court, Cap 4A, by rule 203 the Rules of the High Court (Amendment) Rules 2008.  The amendment rules came into operation on the day appointed for the commencement of the Civil Justice (Miscellaneous Amendments) Ordinance 2008, ie 2 April 2009.  Order 59, rule 2B provided as follows:

“ Application for leave to appeal
against interlocutory and other
judgments or orders of Court
(O. 59, r. 2B)

(1) Subject to paragraph (4) and any other enactment, an application for leave to appeal against—

(a) an interlocutory judgment or order of the Court;

(b) a judgment or order of the Court specified in section 14‌(3)(e) or (f) of the Ordinance; or

(c) any other judgment or order of the Court against which an appeal may be made with leave of the Court or the Court of Appeal,

may only be made[31] to the Court in the first instance within 14 days from the date of the judgment or order.

(2) So far as is practicable, the application must be made to the judge or master against whose judgment or order leave to appeal is sought.

(3) Where the Court refuses the application, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of the refusal.

(4) If the Court of Appeal allows, the application may be made direct to the Court of Appeal within 14 days from the date of the judgment or order.

(5) An application under this rule must be made inter partes if the proceedings to which the judgment or order relates are inter partes.

(L.N. 152 of 2008) ”

Construction of section 14AA, Order 59 rule 2B and section 31

27.Section 14AA and Order 59, rule 2B were changes made under the Civil Justice Reform.  They should be construed together and with other changes made to the civil practice and procedure under the Civil Justice Reform.

28.In Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515, HCA 192/2000, 10 August 2009, Chu J (as she then was) held that the Court of First Instance only had power to deal with an application for leave to appeal under Order 59 rule 2B(1) that was made before the expiration of the 14-day time limit.  Her Ladyship went on to hold that the power to extend time under Order 3, rule 5(1) should not apply to an application for leave to appeal and the power under Order 3, rule 5(2) to extend time notwithstanding the application was made after the expiration of the time limit did not apply to an application for leave to appeal.  Her Ladyship said:

“ 10. In my view, the starting point is to consider the wordings in O 59 r 2B(1), pursuant to which the application for leave to appeal is made.  The material part of r 2B(1) provides that: ‘… an application for leave to appeal … may only be made to the Court in the first instance within 14 days from the date of the judgment or order’ (emphasis added).  The language suggests that an application to the court below for leave to appeal its judgment or order can only be made within the 14-day time limit.

11. There is no other provision in O 59 enabling the court below to extend time for applying for leave to appeal.  Order 59 r 15, which deals with extension of time, provides that:

‘Without prejudice to the power of the Court of Appeal or a single judge under Order 3, rule 5, to extend or abridge the time prescribed by any provision of this Order, the period for serving notice of appeal under rule 4 or making application ex parte under rule 14(3) may be extended or abridged by the court below on application made before the expiration of that period.’

12. Previously, the power under r 15 to extend time might extend to applications for leave to appeal by reason of the reference to ‘application ex parte under rule 14(3)’.  This is no longer the case as a result of amendments to O 59 brought about by the Civil Justice Reform.  O 59 r 14(2) and r 14(3), dealing with applications for leave to appeal, had been repealed and applications for leave to appeal are now dealt with under the new rr 2A, 2B and 2C.  The new r 14(13) further expressly provides that r 14 does not apply in relation to an application for leave to appeal.  Consequently, the reference in r 15 to ‘application ex parte under rule 14(3)’ can no longer cover an application for leave to appeal, quite apart from the fact that such application is now generally made inter partes: O 59 r 2A(2) and r 2B(5).  It should also be noted that the power under r 15 can only be invoked by the court below if the application to extend time is made before the expiration of the time limit, which is not the case here.

13. Having regard to the wordings of r 2B together with the legislative intent as appeared from the legislative development and the absence of express provision conferring a power to extend the time for applying for leave to appeal, I am of the view that the court in the first instance, which includes the Court of First Instance,only has power to deal with an application for leave to appeal under O 59 r 2B(1) that is made before the expiration of the 14-day time limit.  And that the power to extend time under O 3 r 5(1) should not apply to an application for leave to appeal.  Similarly the power under O 3 r 5(2) to extend time notwithstanding the application is made after the expiration of the time limit does not apply to an application for leave to appeal.  Such a construction is also consistent with the underlying objective in O 1A r 1(b).

14. Additionally, it is instructive to contrast the position in Rules of the High Court with that in Rules of the District Court. The new O 58 r 2(4) of Rules of the District Court (Cap 336H), which was introduced at the same time as O 59 r 2B(1) of Rules of the High Court, is differently worded.  It merely states that an application for leave to appeal ‘must be made’ within the time limit specified in the sub-rule.  At the same time, O 58 r 2(10) of Rules of District Court expressly empowers the District Court to extend the time for applying for leave to appeal and the power may be exercised at any time and notwithstanding the time limit for so doing has expired.  This reinforces the construction stated above.

15. For these reasons, leave to apply for leave to appeal out of time is refused.”

29.I should add that Order 1A, rule 1(b); Order 3, rule 5(1) and Order 3; rule 5(2) provide that:

Order 1A, rule 1(b):

“ The underlying objectives of these rules are … to ensure that a case is dealt with as expeditiously as is reasonably practicable.”

Order 3, rule 5(1):

“ The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.”

Order 3, rule 5(2):

“ The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.”

30.Significantly, Her Ladyship ruled that the general provision on extension of time under Order 3, rule 5(1) and (2) did not apply to the new and particular 14-day time-limit under Order 59, rule 2B(1)(a). 

31.Wynn Resorts (Macau) SA was applied by To J in Menno Leendert Vos v Global Fair Industrial Limited HCA 4200/1995, 23 April 2010.  His Lordship agreed entirely with §§10 – 15 of Wynn Resorts (Macau) SA and added his own observations.

“ Jurisdiction to grant extension of time to apply for leave to appeal

3. Since the implementation of the Civil Justice Reform (‘CJR’), leave is required to appeal against interlocutory and certain other judgments or orders of the court and such application may only be made to the court in the first instance, referred to as the ‘court below’, within 14 days from the date of the judgment or order being appealed against: Order 59 rule 2B(1) of the Rules of the High Court.  The orders being appealed against were made on 25 March 2010.  The time to apply for leave to appeal expired on 8 April 2010.  The application is therefore out of time by 7 days.

[In §4, the learned judge quoted §§10 – 15 of Wynn Resorts (Macau) SA]

5. I have quoted the relevant parts of Chu J’s judgment in full.  I agree entirely with her Ladyship’s construction of Order 59 rule 2B(1), and have the following observations to add.  Under this new scheme introduced by the CJR into Order 59, leave to appeal against an interlocutory judgment or order may be made to the court below and so far as is practicable to the judge or master against whose judgment or order leave to appeal is sought: rule 2B(1) and (2).  If that application is refused, the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal: rule 2B(3).  Where leave is given, whether by the court below or by the Court of Appeal, the appellant has to serve a notice of appeal to all parties to the proceedings specifying the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make: rule 3. This notice of appeal must be served within stipulated period, depending on the type of case concerned: rule 4.  Rule 15 gives the court below the power to extend or abridge the period for serving notice of appeal under rule 4 on application made before the expiration of that period. 

6. The phrase ‘may only be made’ in Order 59 rule 2B(1) is unequivocal, indicating that an application to the court below for leave to appeal against its judgment or order may only be made within the stipulated 14-day period.  As observed by Chu J, there is no other provision in Order 59 giving the court below jurisdiction to extend the time for applying for leave to appeal.  It should be noted that under this new scheme even where leave to appeal has been granted, rule 15 expressly gives the court below power to grant extension of time for serving notice of appeal.  Even then, such application has to be made before the expiration of that period.  Thus, a fortiori, in the absence of express provision giving the court below power to grant extension of time to apply for leave to appeal, it must necessarily follow that the court below does not have such power, in the light of the unequivocal language used in rule 2B(1).

7. Two of the underlying objectives of the CJR are to ensure that a case is dealt with as expeditiously as is reasonably practicable and to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings.  The construction that rule 2B(1) requires an appellant to apply for leave to appeal against an interlocutory judgment or order of the court within strict time limit without any power in the court to grant extension of time best serves these objectives.  A strict time limit is particularly justified for appeals against interlocutory judgments and orders.  Such construction enables cases to move forward expeditiously without being dragged behind by delays caused by appeals against interlocutory judgments or orders, especially delays as a result of dilatory conduct of the intending appellant.  Such a construction also promotes proportionality and procedural economy.  This construction, which is consistent with the unequivocal language used and which best serves these objectives, must have been what was in the contemplation of the legislature when passing the amendments to the new Order 59. 

8. For the same reasons as given by Chu J and the above reason, I find that as the court below, I have no jurisdiction to grant extension of time to apply for leave to appeal against my interlocutory order after the stipulated 14-day period has expired.”

32.The Civil Justice Reform introduced the requirement of leave to appeal for interlocutory appeals.  Order 59, rule 2B(1) imposes a strict time limit of 14 days to apply to the first instance court for leave and there is no jurisdiction to extend time.  This is to achieve the two objective requirements referred to in §7 of the judgment in Menno Leendert Vos.

33.Section 31 was a general provision on reckoning time enacted before the Civil Justice Reform to provide that:

“ Where by any law regulating civil procedure, or by any special order of the High Court, any period not exceeding one month is appointed or allowed for the doing of any act or the taking of any proceeding, no days included in the Summer vacation shall be reckoned in the computation of such time, unless the Court otherwise directs …”

34.Section 31 does not sit well with section 14AA and Order 59, rule 5B(1), read together and together with the other changes introduced by the Civil Justice Reform.  Interlocutory appeals are no longer as of right.  Leave to appeal is necessary.  The period “appointed or allowed” under Order 59, rule 2B(1)(a) is a strict time limit of 14 days without any jurisdiction to extend time.  If section 31 were to continue to apply as the applicants contended, then they would effectively have 31 – 4 + 14 = 41 days to apply.  This far exceeds 14 days from the date of the judgment or order.  The applicants seemed to have scant respect for the time limits imposed under the Interlocutory Order[32] as they did not issue the summons for leave to appeal and for stay of §3 of the Interlocutory Order until 14 September 2017. 

35.For these reasons I hold that section 31 does not apply to applications made under Order 59, rule 2B(1)(a).  

Rules of the High Court (Amendment) Rules 2017

36.Mr William Wong SC did not cite Rules of the High Court (Amendment) Rules 2017 which came into operation on 1 December 2017.

37.Rule 3 of the Amendment Rules added rule 2B(6) to Order 59 rule 2B.  Rule 2B(6) provides as follows:

“(6)  The Court or the Court of Appeal may extend the period for making an application for leave to appeal before or after the expiry of the period. “ (L.N. 122 of 2017)

38.As Rule 2B(6) had not come into operation on:

(1) 18 August 2017 when the period for application to me expired;

(2) 14 September 2017 when the summons for leave to appeal was issued; and

(3) 29 November 2017 when the summons for leave to appeal was heard;

it had no application in this case and the application was out of time.  In any event, there was no application by Mr William Wong SC for extension of time.

Disposition

39.The application for leave to appeal from the Interlocutory Order was out of time and I dismiss the application. 

40.The consequence of my dismissing the application for leave to appeal is that the applications for stay of execution must also be dismissed.

41.I dismiss the summons dated 14 September 2017 issued by the Applicants and the summons dated 23 November 2017 issued by Lau Wing Yan (劉永人).  I order the Applicants to pay the costs of the Lau Wing Yan(劉永人) in respect of the summons dated 14 September 2017 and at the hearing on 29 November 2017, to be taxed if not agreed, with certificate for counsel. There be no order as to costs in respect of the summons dated 23 November 2017.

42.If the applicants wish to take this interlocutory matter any further, they should include in the hearing bundles the documents referred to in §§6, 10 and 12 above.

Mr William Wong SC, leading Mr Michael Lok, instructed by Sit Fung Kwong & Shum, for the 1^st and 2^nd plaintiffs by Original Action and the 1^st defendant by Counterclaim

Ms Rachel Lam and Mr Martin Kok, instructed by DLA Piper Hong Kong, for the 3^rd defendant by Original Action (the plaintiff by Counterclaim)