Hon Ying Chu and Another v. Yue Bob Ken, Bobby

HCMP006366/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MP 6366/98

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Coram: Hon. Leong, J.A. in Chambers

Date of judgment: 24 December 1998

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J U D G M E N T

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Leong, J.A.:

The applicant Hon Ying Chu was the tenant of 15 Cliff Road 2/F Kowloon. The landlord Yu Bob Ken on 24th June 1998 applied to the Lands Tribunal for an order for possession of the premises on the ground that the applicant did not pay rent. The applicant in her notice of opposition dated 8th July 1998 admitted she owed rent as alleged by the landlord but she pleaded that she should be allowed time until November 1998 to settle it. She also stated in the notice that she did not wish to be heard. On 31st July 1998, the Presiding Officer of the Lands Tribunal made an order for possession on the condition that the applicant failed to pay the arrears of rent and the costs of the proceedings within four weeks. On 27th August 1998, the applicant applied to the Presiding Officer for a review of the order. On 28th August 1998 her application was heard and the Presiding Officer granted a stay of execution for four weeks on the condition that she paid the arrears and costs by 4:00 p.m. on 4th September 1998 failing which execution would be effected forthwith. The applicant failed to pay within the time allowed. On 9th October 1998, the applicant again apply for stay of execution. She was refused. On 12th October 1998, the applicant once again applied to set aside the order of possession on the ground that the landlord had acted irregularly and underhandedly. The application was heard on 22nd October 1998 but was refused. The order of 31st July 1998 was allowed to stand.

2. On 22nd October 1998 the Tribunal's order was drawn up but it was not until 5th November 1998 that the representative of the applicant Leon M. Lee applied for a copy of the order and only collected it on 25th November 1998.

3. The applicant now applies for leave to appeal out of time. The notice of appeal was filed with the Tribunal on 26th November 1998. It is not clear from the notice against what order the applicant is appealing. It would appear that her appeal is against the order dated 22nd October 1998 refusing her application to set aside the order of 31st July 1998.

4. The grounds of appeal specified in the notice are these:

"In the lower court, just wants the money. Did not give the opportunity to be heard the true fact of the matters."

5. It is not at all clear from the above what exactly is her complaint. As far as can be made out, she is complaining that she was not given the opportunity to be heard and the landlord simply wanted money. Her affidavit in support of the application for leave appears to explain that she only obtained the case paper on 6th November 1998 and she was told that she had twenty-one days from 6th November 1998 to appeal.

6. Order 55 of the Rules of Supreme Court sets down the procedure and time limits for appeals from Tribunals to the Court of Appeal and the applies to appeals from the Lands Tribunal. Rule (2) provides as follows:

"The notice must be served, and the appeal entered, within 28 days after the date of the judgment, order, determination or other decision against which the appeal is brought."

7. Rule (4) provides as follows:

"(4) In the case of an appeal against an order determination, award or other decision of a tribunal ... the period specified in paragraph (2) shall be calculated from the date on which notice of the decision was given to the appellant by the person who made the decision or by a person authorized in that behalf to do so."

8. The applicant was present by her representative at the hearing on 22nd October 1998 when the Presiding Officer announced her decision refusing the application to set aside and ordering that the order on 31st July 1998 be affirmed. The order was drawn up on that day. A copy of that was available on 6th January 1998 whereas the applicant's representative did not collect it until 25th November 1998. For the purpose of an appeal, the applicant had notice of the decision on 22nd October 1998 from which she had twenty-eight days to appeal. The applicant is out of time in entering her appeal. Her explanation as to the delay is not acceptable. In any case, her grounds of appeal has not disclosed any valid arguable ground that the order of 31st July 1998 should be set aside. In respect of the hearing on 31st October 1998, she had declared that she did not wish to be heard but she nevertheless was present at the hearing. On all other occasions she was present herself or by her representative and it cannot be said that she was not given opportunity to be heard. The application for leave to appeal out of time is dismissed.

Representation:

Applicant (Intended Appellants) in person - Hon Ying Chu & Leon M. Lee