Wong Chi-chung v. Lee Yuk-cheung

CACV000049/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.49 OF 1970

(On appeal from O.J. Action No. 1 of 1970)

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Coram: Full Court (Blair-Kerr, S.P.J., Huggins and Li, JJ.)

Date of Judgment: 1st October, 1971

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JUDGMENT

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Blair-Kerr, S.P.J.:

1. On 27th September we dismissed this appeal. In our view it was without merit; and we do not propose to record reasons for our decision.

2. However, one aspect of the appeal calls for comment. O.J. action No. 1 of 1970 was tried by Mr. Justice Briggs on 12th November and he delivered judgment in favour of the defendant on 14th November 197O. Upon our asking counsel for the appellant the reason for the delay in the appeal coming on for hearing, his immediate reaction was that this was a matter which concerned the Registrar-thereby implying that no earlier date could be given by the court because of congestion in the lists.

3. On further inquiry, it appears that the main reason for the delay was failure on the part of the appellant's solicitors (David K.W. Tsang & Co.) to comply with O.59 r.5(1). The history of the matter is this: On 26th November the Director of Legal Aid extended the appellant's Legal Aid Certificate to cover the conduct of appellate proceedings in this Court; and on 23rd December a notice of appeal was filed. On 12th June the Clerk of Court wrote to the appellant's solicitors as follows:-

"The notice of appeal was filed on 23rd December 1970, since when there has been no compliance with O.59 r.5(1). Consequently the appeal has not been set down in the list of appeals in accordance with O.59 r.5(2).

As I am in process of arranging for the hearing of appeals in consultation with the Senior Puisne Judge, I should be grateful if you would inform me whether it is your client's intention to proceed with this appeal."

4. On 7th July the appellant's solicitors applied for an extension of time within which to comply with O.59 r.5(1). Apparently they sought an extension till 28th July; and the Registrar granted their application.

5. The Court Vacation commenced on 1st August and ended on 11th September. On 17th September the Clerk of Court notified the parties that the appeal had been fixed for 27th September.

6. It will be seen from the above facts that the delay in bringing this appeal on for hearing was entirely due to the fact that the plaintiff's solicitors failed to comply with O.59 r.5(1) until a few days prior to the commencement of the Court Vacation.

Representation:

M. Huang (David K.W. Tsang & Co.) assigned for Appellant.

R. Arculli (Deacons) for Respondent.