Yeung Lai Ping v. Secretary for Justice

HCPI 833/2002

[2025] HKCFI 5356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 833 OF 2002

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D E C I S I O N

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Introduction

1.This is the Plaintiff’s application for leave to appeal out of time to the Court of Appeal against my decision^[1] dated 22 September 2023 (“Decision”).  In the Decision, I dismissed the Plaintiff’s application to vary the interest order of Bharwaney J in his award of damages in favour of the Plaintiff.  

2.The background of the Plaintiff’s application has been set out in the Decision which I will not repeat. 

3.In the Decision I ruled that:

(i)    an award/order of interest, similar to a costs order and like any other order of the court, is prima facie an order absolute, unless it is indicated by the court who made the award/order, either expressly or by necessary implication, that it is an order nisi or provisional^[2];

(ii)   Bharwaney J did not intend the interest award to be provisional or subject to any application to vary at the time he gave the Judgment^[3];

(iii)  there is no valid ground for the “slip rule” to be engaged in the present case^[4]; and

(iv)  the award of interest by Bharwaney J in the Judgment is a final order.  As the order has been perfected this court is functus officio regarding the issue of interest and I shall have no jurisdiction to reopen it^[5]. 

Grounds of Appeal

4.Mr Barretto SC put forward 4 proposed grounds of appeal against my above rulings. Notably, under Ground 2 of the grounds of appeal, Mr Barretto relied on the decision of Deputy High Court Judge Leung (as Leung J then was) in So Sin Ying v JV Fitness Ltd^[6] which is in line with the arguments of Mr Barretto at the hearing and expressly contradictory to my rulings. 

5.In So Sin Ying, Leung J distinguishes between an absolute order made under the original Judgement as opposed to the actual situation of statutory jurisdiction to be invoked after the Judgment and viewed that the Court cannot be functus officio for the post-judgment statutory jurisdiction. 

6.Further, Leung J ruled that the sanctioned jurisdiction is mandatory so that the extra requirement for an order nisi on interest does not align with the express mandatory nature of the Sanctioned Offer jurisdiction which is exercisable after Judgment. 

7.Leung J also viewed that there is a practical difficulty of preserving secrecy of the sanctioned offer from the trial judge whilst the trial judge drafts an order which somehow preserves the issue of interest. 

8.Given Leung J’s decisions in So Sin Ying, I am of the view that the Plaintiff’s appeal cannot be regarded as having no reasonable prospects of success. 

Delay

9.The delay on the part of the Plaintiff in applying leave to appeal is over 5 months which is a substantial delay. 

10.In support of her application for leave to appeal, the Plaintiff filed an affidavit saying that she has been suffering from mental ill health during the time when the Decision was handed down. 

11.It is Mr Barretto’s submission that the Plaintiff’s mental ill health impaired and incapacitated her speed of thought, logical analysis, formulation of thought propositions and therefore her decision making when faced with her loss. In consequence the Plaintiff reacted out of character, negatively and inappropriately, so as to inhibit her ability to logically analyse the cost benefit of an appeal at that time, and as time elapsed she excluded her decision making from her contemplation, with psychiatric and factual evidence in support. 

12.Mr Barretto submitted that the Plaintiff’s appeal has a real prospect of success and there is also a policy consideration that the Court of Appeal can restate the law where there are at present two conflicting decisions on the point. 

13.On the other hand, Mr Lam, counsel for the Defendant, submitted that the delay is substantial in that the Leave Summons was filed 5 months and 22 days late. 

14.Mr Lam submitted that the Plaintiff claimed to have been suffering from psychiatric illness since 2002, but such assertion was decidedly rejected by Bharwaney J and the Plaintiff cannot now try to revive the issue and use it as an excuse for delay. There is also no explanation as to why the Plaintiff was suddenly able to overcome her alleged mental conditions (the pressure associated with litigation etc.) after the delivery of the decision in So Sin Ying.

15.Mr Lam submitted that, considering also that the Plaintiff all along had the benefit of being represented by a strong legal team, the circumstances suggest that it is more likely than not that the previous decision not to appeal was rationally and ably made, and that the true reason for the change of heart was P’s desire to ride on the So Sin Ying case. 

16.It is Mr Lam’s submission that the delay in the present case is both substantial and inexcusable such that the hurdle as far as the merits of the intended appeal is concerned should even be higher than the real prospect of success. 

Discussion

17.As submitted by Mr Barretto, an extension of time for appeal will not be granted only on the ground that another case has held that the previous law was incorrect. This is because of the principle of finality in litigation. In Re Aqeel Mohammed^[7] it was held that in considering the merit of an extension application the court will have regard to:

(1)  The length of delay;

(2)  The reasons for the delay;

(3)  The prospects of the intended appeal; and

(4)  The prejudice to the respondent if an extension of time were granted. 

18.The length of the delay in the present case is significant.  The reasons provided by the Plaintiff to justify such magnitude of delay must be compelling. 

19.In the Plaintiff’s 4^th Affidavit she set out in some details her mental condition during the relevant time and explained why she made a “sudden and emotional decision” to stop her case and did not seek advice from counsel. According to the Plaintiff, when the Decision was handed down she “felt this was illogical and unfair, and felt that [she] could not deal with the legal system any more.  [She] could not stand the anxiety that each legal interaction caused to [her] and the threat of disappointment, and wanted to ‘give up’ immediately”. 

20.The Plaintiff explained further that she was told of another Sanctioned Offer judgment delivered in another case on the 27^th December 2023 and was informed by her solicitors that another High Court judge had made a decision on grounds similar to the Plaintiff’s submissions in her case and that Leung J had made a decision which disagreed with the approach and reasoning of Poon J in my her case on 22^nd September 2023.  The Plaintiff said by then some months had elapsed from the time for appeal and her solicitors questioned how it came about that she suddenly decided not to seek advice from them on appealing at the end of September 2023. 

21.I am not convinced that the delay was caused by the Plaintiff’s alleged mental ill health. 

22.The Plaintiff maintained that she has been suffering from anxiety and depression and receiving psychiatric treatment since 2003.  Faced with the Defendant’s jurisdiction objections and the Defendant’s Affidavit dated 30^th September 2022 she suffered a relapse of her previous anxiety and depressive state.  In or around September 2022 her depressive symptoms flared up and she received transcranial magnetic stimulation (rTMS) treatments and she felt less unhappy and better able to cope with ordinary day to day events.  Then followed by the anxiety from the hearings of the Plaintiff’s application to vary Bharwaney J’s interest order and the anxiety triggered by her difficulty in understanding the reasoning and process of her application, she needed to receive more rTMS and recommenced using fluoxetine to ease her symptoms.  And from February 2023 to January 2024, she endured stress arising from various life events in addition to her ongoing Sanctioned Offer litigation and sometimes her anxiety symptoms worsened and she would ruminate on insignificant matters and become muddled in her thinking and decision making. 

23.I accept that the Plaintiff maybe suffering from anxiety and depression symptoms.  But I am unable to attribute her decision not to appeal against the Decision to her said symptoms.  According to the Plaintiff she has been suffering from such symptoms for many years and presumably the stress caused by her litigations would have been much more intense during the period when the substantive proceedings, including the appeals thereof, were still pending than at present where the only issue remaining is whether enhanced interest can further be awarded. It is inconceivable why the Plaintiff has been able to give rational instructions to her legal team under much stressful situation but not now. 

24.It is understandable that the Plaintiff might feel exhausted after prolonged litigations and decided to “give up”.  But the fact that the Plaintiff has suffered from anxiety or depression symptom and at the same time she decided to give up does not mean that she made the decision because of her mental condition. 

25.The Plaintiff portrayed that it was a sudden and irrational decision for her not to seek advice from her legal team for appealing the Decision.   However, it is difficult to understand, given the long term relationship between the Plaintiff and her legal team, there would have been no effort on the part of her legal team to make sure that the Plaintiff had received proper advice before they can confirm that the clear instructions from the Plaintiff was not to proceed with an appeal, given that the legal team has all along been so confident that the Decision was incorrect. 

26.Although Leung J’s decision is mentioned in the Plaintiff’s 4^th Affidavit, it is not the Plaintiff’s case that the Plaintiff’s decision to appeal was triggered by Leung J’s decision.  It is not mentioned by the Plaintiff how Leung J’s decision affected her decision to appeal. In my view, it is more probable that after the Plaintiff was informed of Leung J’s decision, she changed her mind not to appeal as she had the view that the chance of success of her appeal would be higher. 

27.It is Mr Barretto’s submission that the Plaintiff’s case does not pivot on a change in the law to her advantage with the Plaintiff belatedly seeking to follow a favourable change in the law, as the Plaintiff has been correct all along. However, a subsequent conflicting decision alone is also not a sufficient reason for granting an extension of time for appeal. 

28.In the present case, the delay is substantial and the Plaintiff has provided no justifiable reason for her delay. 

29.Although I am of the view that the Plaintiff has a reasonable chance of success in the appeal, on balance I am not convinced that I should exercise my discretion to grant an extension. 

30.The Plaintiff’s application for leave to appeal out of time is therefore refused. 

31.Costs should follow the event.  I make an order nisi that costs of application be to the Defendant, on party and party basis, to be taxed if not agreed. 

32.The above is a costs order nisi and will be made absolute unless any of the parties apply to vary within 14 days. 

33.The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.