Ng Wing Shing v. Secretary for Justice

HCMP 1236/2006

IN THE HIGH COURT OF HONG KONG

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1236 OF 2006

(Application for leave to appeal from DCCJ No.4599  Of 2004)

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BETWEEN:

Before: Hon Yuen JA in Chambers (open to the public)

Date of hearing and decision: 12 April 2007

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DECISION

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Hon Yuen JA:

1.This is an application by the Plaintiff for an extension of time to serve a notice of appeal, leave to appeal having been granted to him by this court (Yeung and Yuen JJA) on 12 December 2006.  Written Reasons for Judgment were handed down on 19 December 2006.

2.Under Order 59 rule 4(3) of the Rules of the High Court, where leave to appeal is given by the Court of Appeal, the party granted leave who wishes to proceed to an appeal should serve his notice of appeal within 7 days after the date when leave is granted.

3.In the present case, as leave had been granted to the Plaintiff on 12 December 2006, it is not disputed that the notice of appeal should have been served on 19 December 2006.  The Plaintiff did not do so.  He is therefore seeking an extension of time, which has been opposed by the Defendant.

Principles

4.It is well-established that in the exercise of its discretion whether to extend time to serve a notice of appeal, the court would normally take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the prejudice to the other party to the appeal (Chiu Sin Chung v Yu Yan Yan [1993] 1 HKLR 225). 

5.As for the balancing of these factors, it is well-established that where the delay is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless.  However, even though the delay is insubstantial, if the delay was inexcusable, the intended appellant must show a real prospect of success on the merits (Secretary for Justice v Hong Kong and Yaumatei Ferry Co [2001] 1 HKC 125). 

6.As for prejudice to the other party, the mere fact that it would suffer no prejudice if time is extended is not by itself a ground for extending time. 

Explanation for delay

7.The Plaintiff has given an explanation for his delay in his affirmations filed on 12 January 2007 and 3 April 2007.  He says first that he thought time ran only from the date of the written Reasons for Judgment and for that reason he did not take steps to serve a notice of appeal until the Reasons for Judgment were handed down on 19 December 2006. 

8.After he collected the Reasons for Judgment on 19 December 2006 (when he was still in time to serve the notice of appeal), he proceeded immediately to the Legal Aid Department and applied for legal aid.  The staff of the Legal Aid Department assured him that the department would inform all parties concerned of the application for legal aid. 

9.A memorandum of notification of an application for legal aid under s.15 of the Legal Aid Ordinance was prepared.  The filing of such a memorandum has the effect of automatically staying the proceedings for 42 days.  Mr Bullett for the Defendant has submitted on the authority of Brook v The Law Society of Hong Kong (1997) MP 3626, unrep. that s.15 did not apply as no appeal had yet commenced.  I find that argument a little technical or artificial in the present case when the court had given a litigant in person leave to appeal and had expressly recommended that he should apply for legal aid to assist him in drawing up the grounds of appeal.  But in the event, whether s.15 applied or not does not matter in the present case because at a previous hearing to which I shall refer, counsel then appearing for the Defendant accepted that there was an automatic stay of 42 days and that was the basis on which the Plaintiff would have ordered his actions.

10.If the Legal Aid Department were to have filed its memorandum on the same day (19 December 2006), that would have stopped time running before expiry of the time fixed by the rules for the service of a notice of appeal. 

11.However the memorandum was not filed until after the Christmas holidays on 27 December 2006.  As such, it is not disputed time for serving the notice of appeal had expired on 19 December 2006.  

12.Notwithstanding his application for legal aid, the Plaintiff himself prepared a 13-page Notice of Appeal which he sought to file in court on 27 December 2006.  He was then informed that it was out of time.  He wrote to the court the same day asking for an extension of time.

13.Upon being informed by the court on 9 January 2007 that his application for extension should have been made by summons and supported by an affirmation, he proceeded to file a summons on 12 January 2007. 

14.I heard the application on 19 January 2007.  As I have said, everyone proceeded on the basis that the automatic stay was still effective and accordingly the hearing did not proceed.

15.On 14 February 2007, legal aid was granted to the Plaintiff.  The Plaintiff’s solicitors have deposed on affirmation that they did not receive instructions from the Legal Aid Department until 22 February 2007 (17 - 20 February 2007 being public holidays).  On 28 February 2007, another summons was filed on behalf of the Plaintiff for an extension of time (although I suppose the Plaintiff’s earlier summons of 12 January 2007 could have been restored instead).

16.I have referred to the facts in some detail because it seems to me that in light of those facts, the Plaintiff’s delay was really only for the 6 days between 8 February 2007 (after the automatic stay expired on 7 February 2007) and 13 February 2007 (the day before legal aid was granted on 14 February 2007). 

17.As for the period before 8 February 2007, as I have noted, the Plaintiff had approached the Legal Aid Department on 19 December 2006 when he was still in time, and if that department had (as it assured him) given notification of his application immediately, time would probably not have expired.  In fact the Plaintiff did take steps to proceed with the matter even after he applied for legal aid, but they were overtaken by the automatic stay which did not expire until 7 February 2007.

18.As for the period after 13 February 2007, legal aid was granted on 14 February 2007 and the time that passed until the issue of the summons on 28 February 2007 was understandable.  Due to the intervening public holidays it was not surprising that the solicitors did not receive instructions until 22 February 2007 and I consider that it was reasonable for the solicitors to have taken 7 days thereafter to get up to speed and to consider what appropriate action to take.

19.So that leaves only the 6 days (8 February - 13 February 2007).  It appears from the Plaintiff’s affirmation filed 3 April 2007 that he thought his “application for legal aid was approved prior to the expiration of the 42-day period, [so] I decided to defer all further action to the solicitor assigned by the Legal Aid Department.  Hence I did not take any further action” (para. 9). 

20.The Plaintiff’s understanding that his application for legal aid was approved prior to the expiry of the 42-day period is incorrect, because the 42-day period ran from 27 December 2006 and expired on 7 February 2007 and legal aid was not granted until 14 February 2007.  However it has been said on behalf of the Plaintiff that he had been orally informed by Legal Aid that his application had been approved before 7 February 2007 (and an undertaking has been given by the Plaintiff’s counsel that an affirmation to that effect would be filed within the next 7 days).  In light of that and in light of the fact that his previous actions have shown that he had no intention to procrastinate, it provides a reasonable explanation for the delay which I am prepared in the exercise of my discretion to accept.

Merits

21.As far as the merits are concerned, I have considered both Mr Wong’s and Mr Bullett’s submissions on Rule 5A of the Proof of Debt Rules and certain English authorities which were very interesting and which only served to satisfy me that this is a case which calls for more detailed consideration before a full division of this court.    Suffice it for me to say at this stage that I do not consider the appeal hopeless.

Prejudice

22.I also see no prejudice that would be suffered by the Defendant should an extension be granted.

Order

23.Accordingly I would give an order extending the time for the Plaintiff to serve his notice of appeal to 14 days from the date of today.

Costs

24.After hearing submissions, I ordered that there should be no order as to costs.  The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

25.It would also appear to me that the Official Receiver should be made a party to the appeal or at least that he should be notified.

Mr Stewart K.M. Wong instructed by Robin Bridge and John Liu on instructions of the Director of Legal Aid for the Plaintiff (Applicant) 

Mr Andrew Bullett instructed by the Department of Justice, for the Defendant (Respondent).