Yuen Oi Yee Lisa v. Secretary for Justice

HCMP 1/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2011

(ON AN INTENDED APPEAL FROM HCMP NO. 2390 OF 2008)

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BETWEEN

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Before: Hon Le Pichon and Kwan JJA in Chambers

Date of Written submissions by the Respondent: 17 January 2011

Date of Written submissions by the Applicant: 24 January 2011

Date of Decision: 2 February 2011

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Hon Le Pichon JA:

1.The applicant has filed a summons dated 3 January 2011 seeking leave to appeal out of time all costs orders made by Madam Justice Chu in HCMP 2390/2008.

2.HCMP 2390 were contempt proceedings brought against the applicant by the Secretary for Justice. On 27 October 2010 when the Decision on Penalty was given, the judge ordered the applicant to pay the costs of the committal proceedings, including the costs of the application for leave to make the application for an order for committal and all costs reserved to the Secretary for Justice on an indemnity basis. Between March and October 2010, prior to the order of 27 October 2010, over 20 interlocutory costs orders had been made against the applicant. Time for appealing the costs order of 27 October 2010 expired on 10 November 2010.

3.By summons dated 17 December 2010, the applicant applied to the judge for "leave to appeal the costs out of time including all costs for the interlocutory judgments". On 24 December 2010, the judge dismissed the application. The present application arises out of that dismissal. The application made on 17 December 2010 was out of time by 37 days.

4.Meanwhile, the applicant filed a notice of appeal dated 10 November 2010 by way of appeal from the committal order made on 27 October 2010 seeking an order that "bail" be granted pending the appeal.  That matter was heard by this court on 23 November 2010. On accepting the applicant’s undertakings and apology to Mr. Justice Lam, this court ordered that the applicant be released from prison immediately and made no order as to costs of the hearing. In the event, the court did not have to consider the merits of the appeal against the committal order.

5.On that occasion, there was no application for leave to appeal the costs order of 27 October 2010. It would appear from the applicant's affirmation dated 3 January 2011 that her explanation is that the ‘notice of motion’ had been filed when she was 'lost, frustrated and confused in prison' and she had overlooked the need to appeal the costs order or to seek leave to do so. However, no explanation has been proffered for the period of delay between 23 November and 17 December 2010.

6.Besides, it was well within the discretion of the judge to make the costs order of 27 October 2010. An appeal will not be entertained from an order which it was within the discretion of the judge to make unless it be shown that the judge plainly was in error within the well-established principles. There is nothing to suggest that any of the well-established principles applies in this case. It follows that the intended appeal from the costs order is devoid of merit and is bound to fail.

7.In the circumstances, I would dismiss this application for leave to appeal the costs order out of time and I would make an order under Order 59, rule 2A (8) that since this application is totally without merit, no party may request the determination to be reconsidered at an oral hearing inter partes. I would also make an order nisi of costs in favour of the respondents to this application.

Hon Kwan JA:

8.I agree.

Written submissions by the Applicant, in person

Written submissions by Mr Eric Ko GC of the Department of Justice, for the Respondent