Sun Jianqian v. Trans-island Limousine Service Ltd

CACV 20/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2003

(ON APPEAL FROM DCEC NO. 858 OF 2001)

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BETWEEN

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Before : Hon Woo VP, Cheung and Yeung JJA in Court

Date of Hearing : 8 February 2007

Date of Decision : 12 February 2007

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D E C I S I O N

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Hon Woo VP (giving decision of the Court):

1.By a Notion of Motion dated 3 August 2006, the applicant seeks leave to appeal out of time to the Court of Final Appeal against the judgment given by this court as long ago as 17 November 2003.

2.The delay in bringing the application was very long, over 30 months.  The applicant’s explanation for the delay is that he wanted to obtain legal aid in pursuing his intended appeal, but his three applications for the purpose had all failed.  The other reason given is that not being a resident of Hong Kong, his entry into Hong Kong for the purposes of these proceedings has caused delay.  These do not amount to any acceptable explanation.  He could and should have made his application for leave to appeal to comply with the time limit for making it and proceeded with his legal aid applications at the same time or shortly thereafter.  Even accepting that the applicant was required to take time to come to Hong Kong over the border, this can be no justification for failing to comply with the time limit for such a long period.  The failure to proffer a reasonable explanation for such a long delay alone would be sufficient cause for this court to refuse extending time for this application and dismiss it.  See Full Wisdom Holdings Ltd & Anor v Traffic Stream Infrastructure Co Ltd, CACV 266/2003, (27 July 2004, unreported), para 7 and Tadano South China Co Ltd v Brightford Ltd & Anor, CACV 152/2006 (15 Jan 2007), para 4.

3.The applicant has submitted that his case falls within section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, which provides as follows:

“An appeal shall lie to the Court–

(a) … ;

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, 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; …”

4.Our judgment of 17 November 2003 determined two issues, namely, the propriety of the judgment entered by the District Judge on liability based on a payment into court by the respondent employer in this employees’ compensation case which payment was accepted by the applicant, when the terms of payment in did not unequivocally admit liability, and the propriety of the judge in refusing to reconsider her own decision so as to set it aside.  It is therefore plain that our judgment did not relate to anything which now the applicant complains to be affecting his right to employees’ compensation in a human right context on which he relies as grounding his application for leave to appeal. 

5.His application does not satisfy any of the conditions in section 22(1)(b) of the Ordinance and must therefore be dismissed with costs.

The Applicant (Respondent), in person

Mr Tony Ko, on the instructions of Messrs Ip Kwan & Co, for the Respondent (Appellant)