Lee Yiu Kwan v. Ting Yin Wah

HCMP001747/2002

HCMP 1747/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1747 OF 2002

(ON APPEAL FROM DCCJ NO. 15275 OF 2000)

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HCMP 1748/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1748 OF 2002

(ON APPEAL FROM DCCJ NO. 15281 OF 2000)

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Coram: Hon Cheung JA and Hon Yeung JA in Court

Date of Hearing: 19 July 2002

Date of Judgment: 19 July 2002

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J U D G M E N T

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Cheung JA: (giving the judgment of the court)

1.This is an ex parte application by the plaintiff for leave to appeal out of time against the order of His Honour Judge Z.E. Li dated 21 May 2001 and the judgment of the same judge dated 26 November 2001. The order of 21 May 2001 was sealed on 1 June 2001 while the later judgment has not yet been perfected.

2.Leave was previously refused by the judge on 10 April 2002. Leave was then sought from a single judge of the Court of Appeal on 3 May 2002. This was refused on 6 May 2002. The plaintiff now renews the leave application.

3.The plaintiff should have applied to the Court of Appeal for leave on 24 April 2002 i.e. 14 days after the refusal by the District Judge. The delay was relatively short and we accept the explanation given for the delay. Having considered the circumstances of the case including the merits of the proposed appeal we will grant leaves to the plaintiff to appeal out of time. Among the arguable points are :

（1） Whether the learned Judge should have relied on the 1994 version of s. 5 of the Corrupt and Illegal Practices Ordinance which includes the additional requirement of "without lawful authority or reasonable excuse" to the offence of offering an advantage in an election. The 1994 version was not referred to by the parties to the judge.

（2） Whether the judge should have invited the parties to address him on the application of the Money Lender Ordinance before dealing with the matter.

（3） Whether the plaintiff as a political party was in the business of money lending and whether the proviso to s. 23 of the Money Lenders Ordinance should apply.

（4） Whether in respect of the plaintiff's claim on the contribution from the defendants, the plaintiff should have invited the parties to address him on the issue first.

（5） Whether there was consideration for the defendant's agreement to make the contributions to the plaintiff.

4.The costs of the application be in the cause the appeal.

Representation:

Ms. Audrey Eu, S.C., and Mr. Lawrence Ng instructed by M/s. Yip, Tse &

Tang for the plaintiff in both actions