Re Chiew Po Yin

HCAL 132/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 132 OF 2005

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Before: Hon A Cheung J in Court

Date of Hearing: 10 November 2005

Date of Judgment: 10 November 2005

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J U D G M E N T

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1.This is an ex parte application for leave to apply for judicial review of an award made by the Small Claims Tribunal and a judgment made by the District Court relating to disputes arising from premises owned by a co-operative building society which is, of course, governed by the Co-operative Societies Ordinance (Cap. 33).

2.I am satisfied that so far as the substantive merits are concerned, upon further consideration, there might be an arguable case relating to whether the Tribunal and the District Court ought to have entertained the relevant proceedings in the first place, given the specific dispute resolution provisions set out in section 49 of the Ordinance.

3.I am also satisfied that so far as the choice between challenging the award and the judgment via the normal channels set out under the respective Ordinances governing the Tribunal and the District Court and making a judicial review application in this Court is concerned, the modern authorities would seem to favour the latter course.  I think that by itself is an arguable matter and I do not think the existence of possible alternative remedies should, in the present case, so far as an application for leave is concerned, be fatal to the application itself.

4.I was originally troubled by the question of delay involved in the present case, but having reviewed the papers further and particularly the content of the District Court claim which, according to the present materials filed by the Applicant before the Court, was only brought to the attention of the Applicant by reason of the writ of possession issued after the entry of a default judgment on 25 April 2005 seven months ago – although the default judgment was entered on 14 March 2005, I am not, so far as the District Court judgment is concerned, faced with a case involving an over-excessive period of delay, bearing in mind the three months’ period for taking out an application for leave.

5.The Applicant has, in the papers before me, explained what has happened between 25 April 2005 and 28 October 2005 when the Form 86A was filed.  He has taken steps since learning about the District Court case to protect his legal interest.  Although he has been late, the position is not such that he should be denied even a chance to persuade the Court about the substantive merits of his application merely by reason of the three-month time limit in the present case.

6.Of course I have borne in mind the question of prejudice in the present case.  But to be fair, all parties concerned, including the Registrar of Co-operative Societies, have been aware of the disputes in question and the stance of the Applicant at all material times.

7.As I say, I think upon further consideration, the Applicant might well have an arguable case in the matter.  No doubt Mr Pun appearing for the Applicant would like to put his client’s case much higher than that.  I think I am entitled to bear that in mind in considering whether to extend time.

8.Having looked at the contents of the District Court claim, I do not think I can sensibly divorce that claim from the earlier claim before the Small Claims Tribunal that resulted in an award made in February 2004, which the Applicant seeks to challenge.

9.So far as the challenge against that award is concerned, if looked at separately and independently on its own, that challenge would be seriously out of time.  Having examined the history of the matter, if I were faced with a single challenge against that award, I would have been very much inclined to think that there has not been shown any good reason for extending time.  But as I say, it would not be sensible to divorce the subsequent dispute in the District Court from the earlier award.

10.As I have come to the conclusion that I should extend time for the Applicant to challenge the District Court judgment, it would not be sensible for me to leave out the Small Claims Tribunal award from the court’s consideration in these judicial review proceedings.  They both raise the same issue, i.e. whether somehow parties to disputes can bypass the very clear and specific provisions in section 49 of the Co-operative Societies Ordinance and bring their disputes to the Small Claims Tribunal or, for that matter, any other court of law for adjudication.

11.So having borne everything in mind and looked at the matter in the round, in the exercise of my discretion, I allow an extension of time for seeking leave to challenge both the award and the District Court judgment, and I grant leave to do so.  I do not wish to say anything more about the merits of the substantive application.

12.Time be extended to apply for judicial review against the Small Claims Tribunal award and the District Court judgment in question.  Leave granted.  Costs reserved.

Mr Hectar Pun, instructed by Messrs Boase, Cohen & Collins, for the Applicant