Chan Mo Ching v. Liu Tsui Ying and Others

HCMP000856/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ.A.

Date of Judgment: 18th May 1983.

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. An application is made to this court for leave to appeal out of time against a decision of a District Judge, leave having been refused by the judge himself.

2. It is necessary to state very briefly the history of the matter. Action was brought by a landlord for possession of premises. Judgment was given in the action for the Plaintiff on 8th February. The time for leave against that decision expired on 22nd February. By that time no appeal had been lodged but the Defendant had apparently applied to the Director of Legal Aid for assistance in prosecuting an appeal. It was the duty of counsel who appeared for the Defendant at the trial to consider the propricty of an appeal and to give the Defendant proper advice on that matter. If it was thought that there was a possible ground of appeal, there was no reason at all why notice of appeal should not have been lodged forthwith. Then, when application was made to the Director of Legal Aid and notice of that application was given to the court and to the Plaintiff, an automatic stay of proceedings would have followed. As it was, nothing happened until, out of time, application was made to the judge. We are told that the application to him was made on 10th March, and the hearing took place on 15th March.

3. The present application was not made until 18th April. The judge had refused leave to appeal out of time and we are not only asked to make an order different from that which the judge made, but we are faced with an application to us which is also out of time, s.63(1) of the District Court Ordinance requiring that the application to this court should be made within "a further 14 days". There is some explanation for the delay up to the time of the application to the judge. It is not a satisfactory explanation partly for the reason which I have already given, that a notice could have been lodged in any event before application for legal aid was made. There was then this further delay which is quite unexplained. It was suggested to us that there were some discussions for a compromise. Counsel for the Respondent tells us that those discussions were after the application was eventually made, but, be that as it may, it is well established that discussions for compromise do not excuse a failure to file a notice of appeal. This is obviously a case which may, to some extent, bring hardship to the would-be Appellant if we refuse the order, but it must be recognised that she has had her day in court and this is not a ease where judgment in default has been entered.

4. In my view it is important that the time limits imposed by statute or by rules of court should be observed and we should not lightly grant extensions of time even where it can be said - and I do not say that it can be said in the present case - that no injustice would result from an extension. I take the view that the delays have not been sufficiently explained and for this reason, without going into the merits, I think that the application should be dismissed.

Cons, J.A.

5. I agree with the views expressed by My Lord Vice-President and I too would dismiss the application.

Fuad, J.A.

6. I also agree.

18th May 1983.

Representation: