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 APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1394 OF 2007

(ON APPEAL FROM HCA 2132 NO. OF 2005)

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BETWEEN

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Before:  Hon Cheung JA and Lam J in Court

Date of Hearing:  23 July 2008

Date of Judgment:  29 July 2008

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J U D G M E N T

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1.On 4 March 2008, this court refused to grant leave to the Plaintiff to appeal out of time.  The Plaintiff now applies for leave to appeal to the Court of Final Appeal.

2.It was held by the Appeal Committee of the Court of Final Appeal in HLF v MTC [2004] 3 HKLRD 241 that a refusal of leave to appeal neither involves a final judgment nor an interlocutory judgment of the Court of Appeal.  As such the refusal does not come within Section 22(1) of the Hong Kong Court of Final Appeal Ordinance Cap.484.

3.This principle has been applied by another division of this court in Ng Ai Kheng Jasmine v Master Yuen HCMP 1153 of 2004, 28 April 2005.

4.Mr Chan submitted on behalf of the Respondents that the present application is incompetent and falls to be dismissed on this reason alone.

5.HLF was a case where leave to appeal is required since the subject matter of the intended appeal is a decision of the District Court.  It was not a case where a party can appeal to the Court of Appeal as of right.

6.Whilst Ng Ai Kheng Jasmine does concern with an appeal out of time, the main reason for holding that the renewal of application for extension was incompetent is that the same application had previously been dealt with by a single justice of appeal in open court.

7.The consequence of a refusal of extension of time in a case where but for the lapse of time an appeal can be brought as of right is that there is no appeal.  It can therefore be forcefully argued that the rationale behind the decision in HLF is equally applicable.  However, in the present case, since the Applicant is not legally represented, we prefer to rest our decision on the grounds set out below. 

8.As we said in paragraph 7 of our judgment of 4 March 2008, the intended appeal of the Plaintiff has no merit whatsoever as it is only a re-litigation of issues already decided against him on numerous occasions.  There is no reasonably arguable ground of appeal even if time for appeal is extended.

9.The relief sought in these miscellaneous proceedings is extension of time to serve a notice of appeal.  Even if one could have regard to his substantive claims in HCA 2132 of 2005, those claims do not come within the purview of Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance.

10.Nor do we see any basis for granting leave under Section 22(1)(b).  We do not accept the Applicant submission that the question involved in the intended appeal is one which, by reason of its great general or public importance, ought to be submitted to the Court of Final Appeal.  The discretion regarding extension of time to serve a notice of appeal was exercised on the particular facts and circumstances of this case.  The principle governing such exercise of discretion is well settled and there is no dispute on the same.

11.Further, given the obvious lack of merit in the Applicant’s case (as explained in paragraph 8 above), leave should not be granted under the “otherwise” limb.

12.We therefore dismiss the application and order the Applicant to pay the costs of the Respondents.

Applicant:  In person

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