Wong Ching Yee v. Poon Chung Yuen and Another

[English Translation – 英譯本]

LDMR 32(A)/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

(MISCELLANEOUS REFERENCES APPLICATION
 NO. 32 OF 1999)

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BETWEEN

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Before: HH Judge Chow

Date of Judgment: 24 July 2000

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JUDGMENT

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1. On 17 December 1999, the Applicant made the following application in the Lands Tribunal:

To remove all of the existing members of the management committee of the Incorporated Owners of Fanling Centre and to re-elect new members for the same.  By consent, the Plaintiff and the Defendants (ask) for an order in terms of the Consent Summons enclosed.

2. I granted an order in terms of the Consent Summons, but a hearing was conducted on costs because the parties failed to agree on who was to bear costs.  On 31 May 2000, I held that the Applicant was to pay the two Respondents’ costs in the proceedings before the Lands Tribunal.

3. On 27 June 2000, the Applicant made the following application by way of summons (“the first summons”):

1.      Leave be granted to the Applicant to appeal against the determination of His Honour Judge Chow made in respect of costs issue on 31^st May 2000, the grounds of appeal are attached hereto.

4. On 5 July 2000, relying on the power conferred by Section 10(2)(d) of the Lands Tribunal Ordinance, the Applicant applied, by way of summons (“the second summons”), for the following order:

The Applicant do have leave to make an application for leave to lodge an appeal against the Decision made by His Honour Judge Chow on 31^st May 2000 despite the fact that the time for doing so has elapsed.

The second summons

5. Section 10(2)(d) empowers the Lands Tribunal to enlarge, for good cause, the time fixed by any Ordinance for the following, whether or not that time has already expired:

“(i)    for the giving of any notice (and whether or not the notice relates to any proceedings);

(ii)     for the taking of any step in any proceedings;

(iii)    for the filing or lodging of any document in any proceedings.”

6. As the present application does not involve the conduct of legal proceedings, paragraphs (ii) and (iii) are not applicable.  As for paragraph (i), the “proceedings” referred to therein must be proceedings over which the Lands Tribunal has jurisdiction.  The proceedings that the Applicant intends to conduct are appeal proceedings before the Court of Appeal, which do not fall within the jurisdiction of the Lands Tribunal.  Furthermore, the Applicant is applying for “leave to make an application for leave to lodge an appeal”, and this has nothing to do with “the giving of any notice”.  Therefore, paragraph (i) is also not applicable to the present application.

7. In my view, the outcome of the above two summonses hinges on whether the Applicant has the right to apply to the Lands Tribunal for “leave to appeal”.  Section 63 of the District Court Ordinance contains the following provisions regarding leave to appeal:

“(1)   Where any party to any proceedings before the Court is dissatisfied with a decision or direction made by the judge in respect of a question of law or the acceptance or non-acceptance of any evidence or any question of fact, the party aggrieved by the relevant judgment, direction, decision or order may apply to the judge for leave to appeal within 28 days of the making of the judgment, direction, decision or order, or, where the judge refuses to give leave, that party may apply to the Court of Appeal for leave to appeal within 14 days from the date of such refusal.

(2)     Where an appeal is intended to be brought against a judgment, direction, decision or order made by a judge, the application for leave shall, so far as is reasonably practicable, be made before that judge.

(3)     In any case where permission is given by the Court of Appeal, the application may be made directly to the Court of Appeal.

(4)     …

(5)     The judge or the Court of Appeal may at any time extend the time limit for applying for leave to appeal notwithstanding expiry of the same.”

[underlining added]

8. No mention is made in the Lands Tribunal Ordinance of “applications for leave to appeal”.  Section 11 of that Ordinance contains provisions regarding appeals, and the relevant provisions read as follows:

“(1)   …

(2)     Subject to the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a determination or order of the Tribunal on the ground that such determination or order is erroneous in point of law.

(3)     Subject to subsection (4), any appeal under subsection (2) shall be brought in such manner and shall be subject to such conditions as are prescribed by the Rules of the High Court (Cap.4 sub. Leg. A).

(4)     The time within which a notice of appeal must be served shall be calculated from the date of the making of the determination or order appealed against.”

9. The provisions under Order 60A of the Rules of the High Court apply to appeals against decisions or orders of Tribunals, but Order 60A makes no mention of applications for leave to appeal.

10. For the above reasons, this Tribunal has no jurisdiction to hear the Applicant’s two summonses.  The Applicant’s applications are accordingly dismissed.

11. The Applicant is to pay costs of the Respondents in respect of the two summonses, such costs to be taxed in accordance with the District Court Civil Procedure (Costs) Rules if not agreed.

Liu, Chan & Lam for the Applicant.

Wong & Poon for the 1^st and 2^nd Respondents.

Translated by Mr. Edmund Cham, Solicitor.