Chee Fei Ming v. Director of Food and Environmental Hygiene and Another
Read the full judgment text of CACV 219/2014 on BabelCite. This Court of Appeal judgment was delivered on 20 April 2015 before Hon Lam VP and Barma JA.
Civil procedure – application for extension of time to appeal – judicial review – Public Health and Municipal Services Ordinance (Cap 132) sections 104A and 104C – static demonstration – display of roadside publicity materials – rolled-up hearing – Order 53 Rule 3(4) – 14-day time limit for appeal – Legal Aid Ordinance s.15(3) and (4) – Secretary for Justice v Yaumatei Ferry Co Ltd [2001] 1 HKC 125 – whether delay is excusable – whether intended appeals have merit – retrospective extension of time granted – 8 days out of time – solicitor's error of judgment in calculating time limit – no clear authority on calculation of time limit for appeal in respect of decision in rolled-up hearing – legal aid application prolonged process – applicants acted promptly in seeking legal aid – court not prepared to say appeals had no real prospect of success – arguments on application of sections 104A and 104C to static demonstration involving display of roadside publicity materials – applicants to pay respondent's costs in any event – applicants' own costs to be taxed in accordance with Legal Aid Taxation.
Legal issues: Whether extension of time to appeal should be granted · Whether the delay in serving the Notices of Appeal was excusable · Whether the intended appeals have any merit
Outcome: Retrospective extension of time granted to the Applicants for the service of the Notices of Appeal on 6 November 2014. The appeals are allowed to proceed.
Cites 2 cases
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CACV 219/2014 and IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 219 OF 2014 (ON APPEAL FROM HCAL NO. 73 OF 2013) ________________________
________________________ IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 220 OF 2014 (ON APPEAL FROM HCAL NO. 110 OF 2013) ________________________
________________________ (Heard together)
________________ D E C I S I O N Hon Lam VP (giving the Decision of the Court): 1.It is now accepted by the Applicants that the Notices of Appeal were served 8 days out of time[1] and extension of time is required for these appeals. A summons for extension of time had been issued by the Applicants on 6 January 2015. We would wish to take this opportunity to reiterate the importance of having a proper application for extension of time before the court. Appeals which are brought out of time without first obtaining extension of time are incompetent and such appeals could be struck out on this ground alone. Applications for extension of time are brought by way of separate proceedings. The practice in the registry has always been that they would be assigned as miscellaneous proceedings and to be listed accordingly. If extension is granted, the notice of appeal would be filed in a separate set of proceedings in the list of civil appeals. Against this background, we do not accept the submission of the Applicants that the summons is unnecessary. 2.There is no dispute that the relevant principles governing the exercise of discretion in granting extension of time to appeal are set out in Secretary for Justice v Yaumatei Ferry Co Ltd [2001] 1 HKC 125, a decision cited by both parties. It is not necessary for us to revisit those principles. We agree that lack of prejudice on the part of the respondent is not sufficient. One must have regard to other factors. In the present context, the main disputes are whether the delay was excusable and whether there is any merit in the intended appeals. 3.Notwithstanding the submissions of Mr Mok SC to the contrary, we are of the view that the delay is excusable. Whilst those acting for the Applicants must bear the primary responsibility for complying the time limit in the rules, in the circumstances the error of judgment on the part of the solicitor for the Applicants was not as grave as the mistake of the solicitor in Secretary for Justice v Yaumatei Ferry Co Ltd, supra. There is no clear authority on the calculation of the time limit for appeal in respect of a decision in a rolled-up hearing. Mr Clancey had explained in his affirmation how the mistake on his part came about. We also accept Mr Harris’ submission that the application for legal aid inevitably prolonged the whole process and the Applicants and those representing him had acted promptly in making the necessary application for legal aid[2]. 4.As regards the merits of the appeals, having considered the submissions of counsel, we are not prepared to say at this stage that the appeals have no real prospect of success. We said so particularly in respect of the arguments on the application of sections 104A and 104C of the Public Health and Municipal Services Ordinance Cap 132 to what Mr Harris described as static demonstration involving the display of roadside publicity materials during the course of such demonstration. 5.In the circumstances, we shall grant a retrospective extension of time to the Applicants for the service of the Notices of Appeal on 6 November 2014. As we said, such Notices have indeed been served on that date. 6.In accordance with the usual rule, the Applicants (as the party seeking the indulgence of the court) should pay the costs of the Respondent in this application in any event. The Applicants’ own costs be taxed in accordance with the Legal Aid Taxation.
Mr Paul Harris, SC and Ms Linda Wong, instructed by Ho, Tse Wai, Philip Li & Partners (DLA), for the applicants Mr Johnny Mok, SC and Mr Suen Sze Yick, SGC(Ag), instructed by Department of Justice, for the respondents and the interested party [1] Judgment was handed down by Poon J on 15 October 2014 and the Notices of Appeal were served on 6 November 2014. Under Order 53 Rule 3(4), the applicable time limit for appeal is 14 days. [2] No point was taken before us as to whether time should run after the making of application for legal aid for authorization to instruct counsel to advise on the merits of appeal in light of s15(3) and (4) of the Legal Aid Ordinance. As it happened, the legal aid memorandum was only issued by the Director of Legal Aid on 6 November 2014 (after counsel’s advice on merits had been given on 1 November) notwithstanding that the application for such authorization was made by the solicitor for the Plaintiff on 16 October 2014. We do not express any view in this judgment as to whether there is actually a gap in the scheme of s15 where the proper consideration of grant of legal aid for appeal requires counsel’s advice on the merit as we have not heard submissions on this point and the implications of Brook v The Law Society of Hong Kong [1998] 1 HKLRD 113. |
Cases cited in this judgment
Further hearings and rulings under CACV 219/2014