Lo Siu Lan and Another v. Hong Kong Housing Authority

Judgment Summary (English Version)

Judgment Summary (Chinese Version)

FAMP No. 2 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2004

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 378 OF 2004)

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Appeal Committee : Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ

Date of Hearing : 17 December 2004

Date of Determination : 17 December 2004

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DETERMINATION

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Chief Justice Li:

1.On 15 December 2004, Hartmann J dismissed the application by Madam Lo Siu Lan (“Madam Lo”) and Mr Ma Ki Chiu (“Mr Ma”) for judicial review.  The judge held that the decision of the Housing Authority (“the Authority”) to divest the properties in question was within its statutory powers.  The divesting was in connection with the public flotation of Link Real Estate Investment Trust.

2.Hartmann J’s decision was handed down at about 2.15 pm.  That afternoon, on the Authority’s application, the Court of Appeal (Ma CJHC, Stock JA and Le Pichon JA) ordered that the time for serving a notice of appeal should be abridged to no later than 1 pm on 16 December 2004 and that, in the event that a notice of appeal was served, the hearing of the appeal should be heard at 2.30 pm on 16 December 2004.

3.Mr Ma did not pursue an appeal but Madam Lo did.  Shortly before the 1 pm deadline, she served a notice of appeal.  The Court of Appeal proceeded to hear the appeal at 2.30 pm and dismissed the appeal at about 8.00 pm with reasons to be handed down later.  The Authority sought an order to abridge the time for Madam Lo to seek leave to appeal to this Court.  This was rejected by the Court of Appeal.

4.This morning (17 December 2004), the Authority applied to the Appeal Committee for such an order.

5.One must first consider whether there is power to make such an order.  Civil appeals from the Court of Appeal to the Court of Final Appeal are provided for and regulated by the Hong Kong Court of Final Appeal Ordinance, Cap.484 (“the Ordinance”).  In a case such as the present, leave must be obtained.  Section 23(1).  The applicant for leave to appeal has 28 days from the date of the judgment of the Court of Appeal to apply to that Court for leave.  Section 24(2).  If the Court of Appeal refuses leave, the applicant has 28 days from that refusal to apply to this Court for leave.  Sections 24(3) and 24(4).  The power of this Court to hear and determine any application for leave to appeal is exercisable by the Appeal Committee.  Section 18(2).  The time limits are thus laid down in the statute itself.  The statute confers on the Court of Appeal and this Court the power to extend time but does not confer the power to abridge time.

6.Mr Fung SC for the Authority accepts that there is no statutory power to abridge but he relies on the Court’s inherent jurisdiction.  He referred to s 4(1) of the Ordinance which provides that “the Court shall have the jurisdiction conferred on it under this Ordinance and by any other law.”  He submits that such “other law” includes the common law and he contends that under the common law, the Court has the inherent jurisdiction to abridge statutory time limits where the statute does not confer on the Court the power to abridge.

7.This argument cannot be accepted.  Where a matter is regulated by statute, the Court has no inherent jurisdiction to modify the statutory rule.  Here, s 24(2) and s 24(4) of the Ordinance confer on a potential applicant the right to apply to the Court of Appeal for leave to appeal within a period of 28 days from the date of the Court of Appeal’s judgment appealed from and in the event of refusal, a further period of 28 days to apply to the Court for leave.  Section 24(5) empowers both the Court of Appeal and the Court to extend time.  It is significant that the statute does not give any power to abridge time.  The inherent jurisdiction cannot be invoked to override the statutory provision by cutting down on the applicant’s entitlement to such periods thereunder.  This would be inconsistent with the statute.

8.It should be noted that rule 70(1) of the Hong Kong Court of Final Appeal Rules provides :

“The Court may, without having to conduct a hearing and on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules, or by any judgment, order or direction, to do any act in any proceedings.”

It is plain that this power to extend or abridge time relates to and only to time limits laid down in the Rules themselves or by any judgment, order or direction.  It does not relate to the time limits laid down in the Ordinance itself.  This is not disputed by Mr Fung.

9.This is unlike the position in the Court of Appeal where the time limit for appeal is prescribed by the Rules of the High Court and those Rules themselves confer on the Court of Appeal the power to abridge as well as extend time.

10.However, it must be observed that even if the Court had the power to abridge time, in exercising such a power, it would need to have regard to all relevant considerations.  These include Hong Kong’s reputation as an international financial centre, the interests of investors who had subscribed for units in the Link Real Estate Investment Trust and the interests of the Authority.  At the same time, justice must be done and must be seen to be done and the Court would have to ensure that all parties have a proper opportunity of presenting their cases.

11.Accordingly, the Authority’s application is dismissed with costs.

Mr Daniel Fung, SC and Ms Catrina Lam (instructed by Messrs Clifford Chance) for the Hong Kong Housing Authority

Mr Hectar Pun and Mr Newman Lam (instructed by Messrs Barnes & Daly) for Madam Lo Siu Lan