Tsang Chun Ping v. Lo Kam Shing

CACV000054/1982

Headnote

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Coram: Hon. Cons, Zimmern & Barker, JJ. A.

Date: 10 June 1982

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JUDGMENT

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Cons, J. A. :

1. Generally speaking, appeal from the District Court to this Court is by leave of the judge below or of this Court itself. Appeal may be brought  on points of law, the admission or rejection of any evidence or any question of fact. This is provided for in Section 63 of the District Court Ordinance. The initial application for leave must be made within fourteen days.

2. It seems to have been generally accepted that appeals from decisions made under Part 2 of the Landlord and Tenant Ordinance require similar leave. I say this because, with one exception, I am not aware of any instance where leave has not been asked for in cases of this kind:

3. Counsel in the present case has adopted the general practice. He has drafted and filed a Notice of Motion asking for "... leave to appeal, notwithstanding that the time for so doing has expired". However he now suggests, albeit with not much confidence, that leave is not necessary. He relies upon Sec. 68A of the Landlord and Tenant Ordinance.

"68A. (1) Any party to proceedings before the court may anneal to the Court of Anneal against a determination or order of the court on the ground that such determination or order is erroneous in point of law.

(2) An appeal under this section shall be subject to any rules of court made under the Supreme Court Ordinance."

4. The point is not without importance, for if one applies the more general rules the appeal has been brought just within time.

5. The jurisdiction of the District Court under the Landlord and Tenant (Consolidation) Ordinance extends beyond that given to it generally. It is a special and peculiar jurisdiction. Likewise that ordinance itself is a special-and peculiar ordinance, dealing as it does, with one particular field of affairs. In my view therefore, general principles require us to prefer the application of Sec. 68A to that of Sec. 63 of the District Court Ordinance. However that is of no assistance to counsel. The appeal is subject, by reason of subsection (2), to the Rules of the Supreme Court. Order 59 r. 19(3) refers us back to the District Court Ordinance and gives, to my mind, a clear indication that leave is still necessary. We note in passing though, that the appeal will be limited to points of law.

6. The proceedings do not have a happy history. Judgment was given on the 15th February this year. On the 17th the defendant applied for Legal Aid. He was informed, very properly, that he ought to lodge his application for leave within 14 days. Unfortunately officials in the registry refused to accept it. By the time the defendant came to court the Director had already filed a memorandum that application for assistance had been made. This brought into operation Sec. 15(2) of the Legal Aid Ordinance:-

"Where any memorandum is so filed, then, unless otherwise ordered by a judge of the court in which the litigation is pending, all proceedings in the litigation shall, by virtue of this section, be stayed for such period, being not less than fourteen days, as may be prescribed, and during such period (unless otherwise ordered by any such judge) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run:"

The period has been prescribed as 42 days.

7. With respect to the officials of the registry we think they took too strict a view. That subsection is not to be taken as precluding a would-be appellant from formally lodging his application for leave to appeal.

8. On the 22nd March the director assigned the matter to a firm of solicitors. It is his practice apparently to make no previous enquiry as to whether a firm is willing to accept particular instructions. In this instance the firm was not and returned the papers to the Director. By then however, despite the 42 days, the time for applying had expired.

9. A further ten days later the Director assigned another firm of solicitors. They acted with commendable promptness and an application was made to the District Judge for leave to appeal out of time. He refused. He thought that the Director should have ensured that the notice had been filed in time, if necessary by doing it himself. We respectfully agree. We appreciate that the Director and his officers must be extremely busy. Nevertheless it is important that a rule as to time should be observed and are surprised that no action was taken to ensure compliance, particularly if, as was suggested in this instance, the Director had at one stage given an express assurance to the defendant that he would.

10. However we respectfully take a different view from the Judge with regard to granting leave. Refusal would in effect punish the lay client for a fault that was in no way his. We therefore granted leave to appeal out of time.

11. The appeal itself is, in my view, without merit. The Judge granted against the defendant an order for possession under Sec. 53(2)(b). The only complaint now made against the decision is that the Judge did not take into consideration an unsuccessful application made under the same subsection two years previously. For myself I am unable to see any way in which he could or should properly have done so. Had the situation remained in all circumstances exactly as it had been two years before then I agree that a further action would have been an abuse of the process of the court and no judge would have countenanced an order to the plaintiff, even though res judicata were not expressly pleaded. But the situation now is by no means the same as it was then. Even the number of people living in the plaintiff's house has changed. I would therefore dismiss the appeal.

Zimmern, J. A. :

12. I agree.

Barker, J. A.:

13. I agree and would merely add this. The judgment of the District Judge was absolutely right and unassailable.

Representation:

Mr. Wally Yeung (M/S Helen A. Lo & Co.) for assigned for the Appellant

Mr. Y. C. Mok (M/S Tai, Tang & Chong) for Respondent.