Leung So Hung Siem v. Carson Wen and Others

CACV 514/2018

[2018] HKCA 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 514 OF 2018

(ON APPEAL FROM HCA 121/2017)

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Before:  Hon Lam VP and Poon JA in Chambers

Date of Judgment:  26 November 2018

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J U D G M E N T

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

1.On 16 July 2018, Recorder Houghton SC refused to grant extension of time to the Plaintiff to appeal against the decision of Master Lui of 26 April 2018 striking out the Statement of Claim in HCA 121/2017. Reasons for Decision was handed down on 6 September 2018.

2.On 4 October 2018, the Plaintiff served a notice of appeal in order to appeal against that decision.

3.Given the time lapse between the date of the decision and the service of the notice of appeal, the Registrar of Civil Appeals took the view that the appeal had been brought out of time and the Plaintiff had to apply for leave to appeal out of time before the appeal can be brought.  He gave directions on 12 October 2018 for the Plaintiff to show cause (by written submissions to be lodged before 31 October 2018) why the appeal should not be dismissed for want of leave.

4.The Plaintiff lodged a set of submissions (dated 31 October 2018) on 1 November 2018.  Though she was one day late, this Court read the submissions nonetheless.

5.In the submissions, the Plaintiff alleged that the Recorder had not made any order at the hearing of 16 July 2018.  She said the Recorder only said, “I’m going to dismiss the case and will follow by reasons thereafter” in the middle of the hearing and during arguments.  She alleged that the Recorder only sent his final decision and reasons by post to her on 10 September 2018.

6.These allegations were very serious as they tantamount to allegations of inappropriate alteration of date of decision in judicial records (as the Reasons for Decision of 6 September 2018 signed by the Recorder recorded that the Date of Decision was 16 July 2018) which are potentially serious allegations of misconduct against a judicial officer. 

7.Allegations of such nature should not be lightly advanced, not even by a person who (like the Plaintiff in the present appeal) chose to act in person.  Once advanced, as the integrity of the administration of justice is involved, this Court must investigate it thoroughly in order to vindicate the same notwithstanding the time and costs involved. 

8.Needless to say, if such allegations are found to be unsubstantiated, there will be costs consequences.  

9.In light of the very serious nature of these allegations, we cannot accept these submissions of the Plaintiff without any evidential basis.  We have therefore called for the transcript of the hearing of 16 July 2018.  A copy of the transcript is now available and the Court will supply copies of the same to the Plaintiff as well as the 1^st, 4^th and 5^th Defendants. 

10.The Court now directs as follows:

(a) Copies of the transcript shall be sent by post to the Plaintiff and the 1^st, 4^th and 5^th Defendants;

(b) The Plaintiff shall file and serve her affidavit or affirmation in support of her allegations on or before 11 December 2018;

(c) The 1^st, 4^th and 5^th Defendants may file affidavit or affirmation in respect of the allegations of the Plaintiff on or before 27 December 2018;

(d) Skeleton submissions (not more than 5 pages) and statement of costs by the Plaintiff and the 1^st, 4^th and 5^th Defendants shall be lodged on or before 2 January 2019; and

(e) The Court will hear the parties on 8 January 2019 at 9:30 am (estimated length: 30 minutes) before determining if the Plaintiff was out of time when she served the notice of appeal on 4 October 2018.  

11.We also note that as the decision of the Recorder is the refusal to extend time to appeal, it is arguably an interlocutory decision for the purpose of Section 14AA of the High Court Ordinance.  That section provides that before an appeal against an interlocutory decision can be brought, leave to appeal is needed.  We will also hear submissions on this aspect of the case on 8 January 2019.

The plaintiff acting in person

Siao, Wen and Leung, for the 1^st, 4^th and 5^th defendants