Tadano South China Co Ltd v. Brightford Ltd and Another

cacv 152/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 152 of 2006

(on appeal from HCA NOS. 9630 OF 1999 AND 16180 of 1998)
(Consolidated)

HCA 9630/1999

in the high court of the

hong kong special administrative region

COURT OF FIRST INSTANCE

ACTION NO. 9630 OF 1999

______________________

BETWEEN

HCA 16180/1998

in the high court of the

hong kong special administrative region

COURT OF FIRST INSTANCE

ACTION NO. 16180 OF 1998

______________________

BETWEEN

(Consolidated)

Before: Hon Le Pichon and Yuen JJA in Court

Date of Hearing: 11 January 2007

Date of Decision: 11 January 2007

Date of Handing Down Reasons for Decision: 15 January 2007

________________________

REASONS FOR DECISION

________________________

Hon Le Pichon JA:

1.This was an application by Lam Chi Biu (“Mr Lam”) the second defendant (in HCA 9630/1999) for leave to appeal out of time to the Court of Final Appeal.  At the conclusion of the hearing, the application was refused with written reasons to be handed down later which we now do.

2.On 8 August 2006, this court dismissed Mr Lam’s appeal from the judgment of Deputy High Court Judge Gill dated 11 April 2006 granting Mr Lam conditional leave to defend on payment into court of JP¥42,560,000 which, at the current rate of exchange, amounts to approximately HK$2.77 million.  Written reasons were handed down on 17 August 2006.  Under the rules the time for appealing expired on 5 September 2006. The application for leave to appeal was not made until 22 November 2006 and was therefore more than two months out of time.

3.In his supporting affirmation dated 22 November 2006, Mr Lam explained that when he had found out that he had lost the appeal on 17 August 2006 he went to the Legal Aid Department.  A file was opened and Mr Lam submitted the information the Department needed within a week.  He said he was never told he needed to apply for leave to appeal to the Court of Final Appeal.  Legal aid was refused 19 September 2006 and with the assistance of his former solicitors’ office, he sought a review.  It was only in early November that he learnt from the legal aid officer dealing with his case that he needed to apply for leave.

4.Although this court has power to extend the period for the filing of a notice of motion for leave to appeal to the Court of Final Appeal under section 24(5) of the Hong Kong Court of Final Appeal Ordinance, good grounds have to be shown.  In Full Wisdom Holdings Ltd & Another v Traffic Stream Infrastructure Co. Ltd, CACV 266 of 2003, unreported, 27 July 2004, Ma CJHC observed (at paragraph 7) that the court would be inclined to give an extension “only where exceptional or at least very good grounds shown”.  In the present case, there has been substantial delay and no good reason has been given to explain that delay.  The fact that Mr Lam who is acting in person was unaware of the rules prescribing time limits is not a valid excuse.

5.The relevant background leading to the order below granting conditional leave to defend has been fully set out in the Reasons for Judgment of this court dated 17 August 2006 and I do not propose to repeat it here.  Mr Lam proceeded to address the court on the merits of the application itself.  This amounted to no more than the fresh evidence relating to Mr Lam’s means including his resignation as a director of the Shenzhen Mak Kee Machinery Company Ltd, the second defendant in HCA 16180/1998, that his counsel had unsuccessfully sought leave to adduce at the appeal hearing.  These matters have been fully addressed in paragraphs 11 to 20 of the Reasons for Judgment of this court.  Mr Lam’s submission suggests that he has not understood the reasons.

6.Mr Lam then sought to rely on sections 1 and 22 of the Bill of Rights, submitting that he is being denied access to the courts to defend himself because of his impecuniosity which amounted to discrimination.  In my view, those sections are simply not engaged on the facts of this case.

7.In conclusion, no merits have been shown and, in any event, this being an interlocutory appeal, under section 22(1)(b) of Cap. 484, leave would not be granted unless “the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision”.  In the present case, no such question arises, much less was one identified.

Hon Yuen JA:

8.I agree.

Mr Jason Wong, instructed by Messrs Chan, Wong & Lam, for the Plaintiff (in HCA 9630/1999)/Respondent

The 2^nd Defendant (in HCA 9630/1999)/Applicant in person (present)