The Official Receiver v. Leung Hoi and Another

HCMP 151/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 151 OF 2006

(On an intended appeal from HCMP No. 917 of 2003)

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BETWEEN

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Before: Hon Tang JA in Chambers

Date of Hearing: 16 February 2006

Date of Decision: 16 February 2006

Date of Reasons for Decision: 27 February 2006

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REASONS  FOR  DECISION

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1.This is the Official Receiver’s application for leave to appeal out of time against the order of Master J Wong given on 1 September 2005.  By that order the 1^st and 2^nd respondents were disqualified under section 168H of the Companies Ordinance, Cap. 32, from acting as directors for 2 years and 1 year respectively.

2.The Official Receiver appealed from that order to the Court of First Instance by a Notice of Appeal dated 15 September 2005.

3.That appeal was dismissed by Kwan J on 9 December 2005 on the basis that under O. 58 r. 2 the appeal should have been made to the Court of Appeal.

4.The judgment of Kwan J is the subject of CACV 43/2006.  However, the Official Receiver has decided to apply for an extension of time to appeal against the Master’s order to the Court of Appeal in case his appeal in CACV 43/2006 is unsuccessful.

5.I believe the delay is excusable.  It is not obvious from O. 58 r. 2 that the appeal from the Master should be made to the Court of Appeal.

6.So the Official Receiver’s error, if error it be, is understandable.

7.The respondents opposed the application on the basis that the pending litigation meant that they could not get on with their lives.  However, CACV 43/2006 is pending and if leave to appeal out of time is granted there is no reason why the two appeals cannot be heard at the same time.

8.This is not a case where I can say that the appeal has no prospect of success and having regard to the unusual circumstances of this case, I granted an extension of time to appeal and ordered that the costs of the respondents in this application be in the cause of [s1]  CACV 43/2006.

Mr Thomas Au, instructed by the Official Receiver, for the Applicant.

1^st Respondent, in person, present.

2^nd Respondent, in person, present.