Progetto Jewellery Co Ld v. Lau Chiu Ying and Another

HCA 2548/2014

[2020] HKCFI 1196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2548 OF 2014

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DECISION

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1.By a summons dated 21 May 2020 (“the summons”), Joy seeks leave to appeal the judgment handed down on 22 January 2020 (“the Judgment”) out of time. The summons is supported by an affirmation made by Joy on 21 May 2020 (“the affirmation”). This decision should be read together with the Judgment. For ease of reference, the abbreviations used in the Judgment are adopted herein.

The principles

2.The principle concerning leave to appeal out of time is well established.  In Tang Chai On v Tang Sing Ki, the Court of Appeal said[1]:

“The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

3.Ignorance of the law on the part of a litigant acting in person is generally not an excuse for delay.^[2]  After the expiration of the appeal period prescribed in the rules of the court, the successful party should be entitled to regard the legal battle as finished.  In the absence of any good reason, the court would not extend the appeal period. All litigants, including litigants acting in person, have the duty to find out the relevant appeal period and to lodge an appeal in time[3].

Substantial and inexcusable delay

4.In the affirmation, Joy said the following:

(1)  On 22 January 2020, she received a copy of the Judgment.  At that time, she thought that the Judgment was only a draft, and the appeal period would only start to run after the sealing of the order made in the Judgment.

(2)  On 24 January 2020, she served a notice to act in person on PJ’s solicitors.  She received two letters from PJ’s solicitors on that date.  In one of these letters, PJ’s solicitors enclosed a draft order (“the draft order”) and a draft of the answers to the questions in the Scott Schedule (“the draft answers”) and asked Joy to comment on the same.

(3)  On 28 April 2020 and 4 May 2020, she received letters from PJ’s solicitors, in which PJ’s solicitors urged Joy to give comments on the draft order and the draft answers.

(4)  Since the order had not been sealed and was only a draft, she did not think that the appeal period had started to run.  She was under an impression that she might lodge an appeal against the Judgment within 28 days after the sealing of the order.

(5)  Due to the outbreak of COVID-19, the court had limited operation from late January to early May 2020.

(6)  On 15 May 2020, she received a copy of the sealed order from PJ’s solicitors.  She sought legal advice from a volunteer lawyer on 18 May 2020.  She was told that the appeal period in fact started to run from 22 January 2020 and the 28-day appeal period had already expired.  She could only lodge an appeal if leave to appeal out of time was granted.

(7)  The delay in lodging the appeal was caused by her misunderstanding of the legal procedure.  She asked for an extension of time of 28 days from the date of the order granting her leave to appeal out of time.

5.Joy has not produced a draft notice of appeal or set out her grounds of appeal in any document.

6.The Judgment is a final judgment given after trial.  Any appeal against the Judgment has to be lodged within 28 days from the date of the Judgment, not from the date of the sealed order[4].

7.As a result of the outbreak of COVID-19 in the beginning of 2020, there was a General Adjourned Period from late January to early May 2020. The High Court Registry was closed from 29 January 2020 to 6 March 2020, and from 23 March 2020 to 5 May 2020.  However, the temporary closure of the High Court Registry has no impact on the calculation of the appeal period and cannot be an excuse justifying the delay in lodging an appeal against the Judgment, for an appeal is commenced by service (and not the filing) of a notice of appeal.  The notice of appeal does not have to be filed, stamped, sealed or in any way authenticated by the court prior to service.  The point has been made clear by Fok JA (as he then was) in Law Wing Kee v Person in Occupation of RP & Another[5], in which his lordship said:

“10.  An appeal to the Court of Appeal is brought by a notice of motion in writing called a “notice of appeal” (see O.59 r.3(1)).  As stated in Note 59/3/4 in Vol. 1 of Hong Kong Civil Procedure 2013:

‘A notice of appeal does not have to be stamped, sealed or in any way authenticated by the Court of Appeal (or any other court) prior to service.  There is no such process as ‘issue’ of a notice of appeal in the case of an appeal to the Court of Appeal.  It is thought by some members of the legal profession that a notice of appeal is not valid unless it has first been sealed or somehow authenticated by the Appeals Registry, and that absent such authentication, it is not a valid notice of appeal and service of it can be rejected.  That is not so.  The order of events is: first, service of the notice of appeal on the parties required to be served (see paras 59/3/11, 59/16/2 and 59/19/5 (below)), then secondly, setting down of the appeal in the Office of the Deputy Clerk of Court (Civil Appeals) (see paras 59/5/1 to 59/5/20 (below)). There is no need to send the notice of appeal to the Appeals Registry prior to service; indeed it is pointless to do so.’

11.    The proper way to commence an appeal is therefore by service of the notice of appeal on the intended respondent.  There is no need for issue or prior authentication of the notice of appeal by the Appeals Registry.

12.    The usual modes of service in O.65 apply to the service of a notice of appeal.  Not being a document requiring personal service, the provisions of O.65 r.5 apply and the notice of appeal may be served by various methods, including leaving it at the address of the solicitors for the intended respondent if that is the proper address for service of the respondent: see O.65 r.5(1)(a) read with r.5(2).

13.    It is only when one reaches the second or setting down stage that the rules require the appellant to lodge with the Registrar a copy of the sealed judgment or order and a copy of the reasoned decision (if any) as well as two copies of the notice of appeal, one of which shall be indorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice: see O.59 r.5(1).

14.    In the present case, the plaintiff’s solicitor did not need to file the notice of appeal in the Appeals Registry before proceeding to serve the notice of appeal on the solicitors for the 2^nd defendant (the intended respondent) and it would appear that the two stages of the service of the notice of appeal and the setting down of the appeal were confused.”

8.The Judgment was handed down on 22 January 2020.  The 28-day appeal period started to run on that date and expired on 19 February 2020.  Up to the date of the summons, Joy has been out of time for more than 3 months.  The delay in lodging the appeal is substantial.

9.Joy was legally represented at the time of the handing down of the Judgment.  She only ceased to be legally represented and began to act in person on 24 January 2020.  What Joy has not said in the affirmation is whether her previous legal advisors had explained the calculation of the appeal period to her.  In any event, ignorance of the law cannot be a satisfactory explanation justifying the substantial delay.

10.In my view, Joy’s delay in lodging an appeal against the Judgment is substantial and inexcusable.

Merit of the appeal not shown

11.Joy has not put forward any proposed grounds of appeal.  That being the case, Joy has failed to show any merit, let alone a real prospect of success, in her proposed appeal

Disposition

12.For the reasons above, the summons must be dismissed.  I dismiss the summons.

13.Costs should follow the event.  Costs of the summons are to be paid by Joy to PJ forthwith and those costs be summarily assessed.  There be leave to PJ to file and serve a bill of costs for summary assessment within 7 days, and leave to Joy to file and serve a written reply to the said bill within 7 days thereafter.

14.I thank counsel for the assistance rendered to the court.

Ms Sakinah Sat, instructed by Deacons, for the plaintiff (by Original Action) and the 2^nd defendant (by Counterclaim)

The 1^st and 2^nd defendants (by Original Action) and the plaintiff (by Counterclaim) appearing in person