Chan Cho Fai v. Hon Ying Muk

DCCJ 2935/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 2935 OF 2012

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DECISION

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1.This is an application of Hon Ying Muk (“Hon”) by his summons dated 28 February 2014 (“the Summons”) for leave to appeal out of time against my decision dated 8 January 2014 (“the Decision”) whereby the order of Master Ho dated 24 October 2013 granting a summary judgment against him was affirmed. By the Summons, Hon further makes an application for a stay of execution pending his intended appeal in the Court of Appeal.

2.In this decision, I shall adopt the abbreviations in the Decision.

3.Hon was represented by counsel at the last hearing. He filed a Notice to Act in Person on 13 February 2014. At this hearing, he simply does not appear. I proceed to decide on his Summons in his absence.

4.In support of his applications, Hon filed a 2-page affirmation dated 28.2.2014 (“the Affirmation”). In the Affirmation, Hon claims that he was advised by his former solicitors that he had good grounds to appeal subject to counsel advice. Hon’s response was that he needed time to raise funds to take the matter further. He alleges that he filed the Notice on 14 January 2014 (in fact he filed the same only almost a month later).

5.Hon further maintains that he has just raised sufficient money to cover his legal costs and expenses for his intended appeal albeit out of time. He says he would instruct another legal firm to represent him in the intended appeal and to engage counsel to advise on his intended appeal. All these contentions sound so empty in light of his absence this afternoon.

6.According to Order 58, rule 2(4), Rules of the District Court, the deadline for appealing against the Decision fell on 5 February 2014. That means the application for leave to appeal for 23 days late.

7.Mr Koo, for the plaintiff, helpfully refers to me the dictum of Cheung JA in Menno Leendert Vos v Global Fair Industrial Limited & Ors , unreported, HCMP 796/2010, 21.6.2010 (para.16) for the general principles regarding applications for extension of time to appeal. In deciding how to exercise its discretion, the court would normally consider:

(1) The length of the delay;

(2) Reason for the delay;

(3) Merits of the appeal: is there a reasonable prospect of success of the proposed appeal?

(4) Prejudice to the other party if leave is granted.

8.Though the 23-day delay cannot be said to be substantial, there is no explanation proffered by Hon in his Affirmation at all. The delay is hence inexcusable and in order to obtain an extension of time for appealing, Hon must show a real prospect of success in the appeal on the merits: Secretary for Justice v HK & Yaumati Ferry Co Ltd [2001] 1 HKC 125 at p.129I.

9.For the purpose of Section 63A(2) of the District Court Ordinance, Cap.336, a reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be probable: SMSE v KL [2009] 4 HKLRD 125 at para.17 per Le Pichon JA.

10.In the Decision, Hon’s former counsel merely raised a short point in reliance of section 7(2) of the Limitation Ordinance, Cap. 347. On what I think is the true and proper construction of the said provision, and taking into account its proviso, I ruled against Hon and held that he could not possibly make out his defence under the same even if his factual account is accepted for the purpose of the application for summary judgment.

11.Hon has not begun to persuade this court in what respects the Decision is wrong in the Affirmation. His application for leave to appeal must hence be dismissed.

12.His application for a stay pending his intended appeal also has no merit absent any reasonable prospect of his intended appeal and I dismiss it accordingly. The end result is that the Summons should be dismissed in its entirety and I so order.

13.Hon must pay Chan Junior his costs of and occasioned by the Summons. This is a separate and distinct application and I find summary assessment to be appropriate so that Chan Junior can recover this part of his costs expeditiously. After hearing Mr Koo, I assess Chan Junior’s costs at HK$6,000 and I order that Hon do pay this amount to Chan Junior as his costs forthwith.  I also allow Chan Junior legal aid taxation.

14.Lastly, I thank Mr Koo for his assistance.

Mr T.H. Koo of Messrs T. H. Koo & Associates, for the plaintiff

The defendant acting in person and absent