Au Yeung Shun Mei & Poon Kit Fong the Manageresses of Man Wah Tong, A Religious Tong v. Jan Fung and Others

HCA 595/2019

[2021] HKCFI 3158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 595 OF 2019

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Before:  Hon Au-Yeung J in Chambers

Closing Date for Written Submission:  3 September 2021

Date of Decision:  22 October 2021

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D E C I S I O N

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Filing notice of appeal out of time

1.By a Decision dated 20 May 2021 (“the Decision”), this Court dismissed D1’s appeal and granted unconditional leave to D2 to defend on the alleged licence that he has in the property.  By a Summons issued on 2 July 2021, the Plaintiffs seek leave to file and serve “the draft Notice of Appeal against [the Decision] attached herein” out of time.

2.The draft Notice of Appeal concerns D2 only as the claim against D1 has been struck out and is not appealed against. Although the Summons was served on solicitors for D1 as well, I shall only focus my attention on the case of D2.

3.Where leave to appeal is required, a valid notice of appeal cannot be served unless and until leave to appeal has been obtained: Hong Kong Civil Procedure 2021, Volume 1,§59/0/49.

4.The draft Notice of Appeal is one for appeal to the Court of Appeal. However, the Decision against D2 was an interlocutory decision.  An appeal against that decision requires leave and that has never been granted.  The Summons must be dismissed.

Seeking leave to appeal out of time

5.The margin note to the Summons refers to Order 59, rule 2B which governs an application for leave to appeal but it cannot salvage the Summons which does not seek such leave.

6.If I am wrong, the Court should take into account the length of delay, the reasons for delay, the chance of the appeal succeeding if an extension of time is granted and the prejudice to the other party if the application is granted. See Hong Kong Civil Procedure 2021, Volume 1,§59/4/9.

7.Mr Chong, counsel for the Plaintiffs, refers to the case of China Light & Power Co Ltd v Ford [1998] 1 HKLRD 382, CA for the readiness of the Court to grant extension of time.  However, that was a pre-CJR decision.

8.The more modern approach laid down by the Court of Appeal is that where the delay is inexcusable, though insubstantial, the applicant must satisfy a higher threshold of real prospect of success on the merits instead of the normal threshold of reasonable prospect of success at the leave stage: KNM v HTF, HCMP 288/2011, 7 September 2011, §§19-20.

9.The Court of Appeal has stressed that it would only very rarely be prepared to interfere with a judge’s grant of unconditional leave to defend on points of fact save in an exceptional case: Chu Yin Fan v Inter Rivers Limited, HCMP 1021/2017, 21 July 2017, Kwan JA (as she then was): 

“9. The decision whether to dismiss an application for summary judgment, or to grant unconditional leave, or conditional leave is a matter within the discretion of the judge. In an appeal against the granting of unconditional leave, the Court of Appeal will examine whether the judge’s reasons disclose any errors of law or misapprehension of material fact, or whether it can be said that the order granting unconditional leave was so plainly wrong that an appeal court had to interfere with the judge’s exercise of discretion.

10. Where the triable issue is on a question of fact (as opposed to a question of law), it would be most unlikely for the Court of Appeal to interfere, … as an appellate court would rarely disturb the decision of a lower court on matters of fact as long as a judge had arrived at a reasonable view and it had to be an exceptional case before an appellate court would disturb the order.”

10.The time for seeking leave to appeal expired on 3 June 2021.

11.The Notice of Appeal (to the Court of Appeal) was filed one day late.  The Plaintiffs’ explanation was that junior counsel was hospitalized so that the Notice of Appeal was only received from the counsel team on 4 June.  The Plaintiffs’ solicitors “inadvertently” filed the summons for leave to appeal in the Court of Appeal.  Upon requisition by the Registrar of Civil Appeals on 22 June, the Plaintiffs “now seek to make an application herein for leave to appeal to the Decision” by the Summons.

12.The delay appears to be insubstantial but the Plaintiffs’ solicitors conflated the procedure for seeking leave to appeal and the appeal itself.

13.What is more:

(1)  There is no documentary evidence of counsel being hospitalized.

(2)  There was another counsel who conducted the hearing which led to the Decision; there is no explanation why his assistance could not be enlisted.  In fact, the Plaintiffs’ solicitor describes the counsel as a “team” in his supporting affirmation.

(3)  There is no explanation as to why it took the Plaintiffs another 10 days since 22 June 2021 to file the present Summons on 2 July.

(4)  The present Summons still did not seek leave to appeal.

14.The delay was inexcusable.  This ground alone is sufficient to dismiss the application for leave to appeal out of time.

15.In respect of the prospect of success of the appeal, it was plain that although this Court did not consider it possible for D2 to get proprietary interest, there may be a case of licence for life.  This Court has considered the fact sensitive nature of the defence before granting unconditional leave to defend.  The written submission in support of the “leave to appeal” contains re-hash of the arguments at the hearing which led to the Decision.  The Plaintiffs cannot meet the test in Chu Yin Fan.

16.Further, the case has been set down for trial to start on 31 August 2022, ie in about 10 months’ time.  There is no point for the Plaintiffs to engage in a satellite appeal so as to divert the parties’ resources and attention from preparation of the appeal.

17.Accordingly, I dismiss the application with costs to D2.  I do not think the unnecessary service on D1 would have added much to the costs on the Defendants’ side.  On a nisi basis, I summarily assess the costs of D2 at $55,000.

Written Submission by Mr KM Chong and Ms Vivian Li, instructed by K C Ho & Fong, for the Plaintiffs

Written Submission by Mr Clark Wang, instructed by K B Chau & Co, for the 1^st and 2^nd Defendants