Wong Yu Cho Rolly t/a Marco Polo and China Oversea Technical Development v. Ho Chi Sum and Another

HCMP 1394/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1394 OF 2007

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Before:  Hon Cheung JA and Lam J in Court

Date of Hearing:  28 February 2008

Date of Judgment:  4 March 2008

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J U D G M E N T

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Hon Lam J (giving the judgment of the Court):

1.By a summons of 25 July 2007, the Plaintiff applied for extension of time to appeal against the decision of Chung J made in HCA 2132 of 2005.  Chung J affirmed the decision of the Registrar of 30 June 2006 striking out the Plaintiff’s claim.

2.The summons was heard by Yeung JA on 8 October 2007.  In the judgment handed down on 31 October 2007, Yeung JA concluded that there was inexcusable delay on the part of the Plaintiff in making this application and the intended appeal had no merit.  Yeung JA said what the Plaintiff did was a clear abuse of process.  As a result, Yeung JA dismissed the Plaintiff;s application with costs.

3.On 14 November 2007, the Plaintiff took out a summons seeking to appeal against the order of Yeung JA.

4.The principle governing applications for extension of time to bring an appeal is well settled.  The court will take into account of the following factors,

(a)     The length of the delay;

(b)    The reasons for the delay;

(c)     The chances of the appeal succeeding if extension is granted;

(d)    The prejudice that would be suffered by the putative respondent if extension were granted. 

5.Yeung JA identified the lack of cogent explanation for the delay and the lack of merits in the intended appeal as the most important factors in the context of the present application.  We agree.

6.We also agree with Yeung JA that the Plaintiff does not offer any satisfactory explanation for the delay.  The delay is substantial.  Time for appealing against the decision of Chung J expired on 21 March 2007.  The delay was 126 days.  It is inherently improbable that the staff at the Resource Centre for Unrepresented Litigants would proffer any advice to the Plaintiff as regards whether he should wait for the result in his judicial review application before lodging any appeal.  Like Yeung JA, we do not find the Plaintiff’s explanation believable.

7.It is also plain to us that the Plaintiff’s intended appeal has no merit whatsoever.  The Plaintiff had repeatedly been warned that re-litigating matters is an abuse of the legal process which the court will not tolerate.  In the context of this action, the Plaintiff has the benefit of the judgments of the Registrar, Chung J and Yeung JA.  Not to mention judgments to similar effect rendered in other sets of proceedings in which he is also the plaintiff suing on the same matters.  We do not see any need to repeat what had already been said.

8.Even though the prejudice that may be suffered by the putative respondent may not be substantial, that should not be a reason for allowing the Plaintiff to perpetuate his abuse.

9.For these reasons, the appeal is dismissed with costs to be taxed if not agreed.

Applicant: In person

Mr Newton Chan, SGC of the Department of Justice for the 1^st and 2^nd Defendants