HSIAO, HSIU-YANG v. CHU WAI TING

CACV267/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2004

(ON APPEAL FROM HCA NO. 5909 OF 1999)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for an adjournment of an application for leave to appeal to the Court of Final Appeal.

2. The application for leave to appeal appears to me to be doomed to failure anyway because it is put on the basis of section 22(1)(a) - it seems to me that it cannot possibly come under that for a number of reasons, one of which one can state very simply that the decision in respect of which an appeal is sought was an interlocutory decision – another of which is that there is no specific liquidated sum in respect of which an appeal can be bought.

3. However, quite apart from that, this application is simply an application now for an adjournment and this court would be very reluctant to adjourn sine die an application for leave to appeal to the Court of Final Appeal.

4. I note that the ethos in this day and age is to try and proceed cases with proper expedition.  This case has dragged on quite long enough as the plaintiff was pointed out in his written submissions, although he is not here today.  It is quite wrong to let this case go on and on in circumstances which have been adequately set out in the judgments, and particularly that of Sakhrani J.  To allow this application to be adjourned sine die would simply be to heap more trouble onto a case which should have long since ceased to exist.

5. As has been pointed out by Cheung JA during the course of argument, even if the defendant had considered that it might be appropriate to abandon any appeal, the proper course would seem to me to be to continue with the application and if leave were granted and it was subsequently decided to abandon the appeal, to abandon it then, but not to delay the matter now.

6. So, for all those reasons, this application must be refused.

Hon Cheung JA:

7. I agree.

CACV267/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2004

(ON APPEAL FROM HCA NO. 5909 OF 1999)

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__________________

J U D G M E N T

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Hon Rogers VP:

1.    This is an application in respect of a refusal by a single judge of the Court of Appeal to extend the time for providing security for costs on the appeal.  The original order for security for costs was made on 22 September and on that occasion the judge gave six weeks to provide the security of $140,000.  The order, in fact, specifies the date on which the security was to be provided, that is 2 November. 

2.    The reason the judge allowed six weeks was there had been an intimation that an application would be made for Legal Aid. That application, apparently, was made two days later, but no answer has been received from the Legal Aid Department as of now.  That is a very unusual circumstance, because, generally speaking, the Legal Aid Department does respond to such requests very quickly.  

3.    The appeal is due to be heard on 16 December and the defendant is now asking that the time for provision of the security and/or her obtaining Legal Aid, of course, be extended to 30 November.  The appeal itself is against a judgment of Sakhrani J given on 10 September of this year.  The judge was dealing with an order of the Master, which was made on 6 August, whereby he ordered that the defendant’s summons, which had been filed on 3 October, to set aside a final judgment be dismissed with costs. 

4.    For the purposes of this judgment, it is unnecessary to go into the details of the action because those have been fully and clearly set out in Sakhrani J’s judgment to which reference should be made.  It suffices, in my view, to say that I do not see any merit in the grounds of appeal against Sakhrani J’s judgment.  The whole matter has been one of a continuous series of delays as demonstrated by Sakhrani J and the matter was a matter of discretion in any event. 

5.    In those circumstances, I have to consider whether it is right to extend the time to 30 November, which, in effect, puts the plaintiff, who is the respondent to this appeal, in this jeopardy that he will not know until then whether the case will go ahead.  But in the meantime, in my view, it would be quite wrong to put him in that jeopardy, because he has to know whether he has to commit himself to counsel and counsel is entitled to require some security that his fees will be paid if he has to block off his diary for 16 December, and he would only know at the end of this month as to whether he will actually be required in court. 

6.    In my view, it would wrong in the circumstances of this case to extend the time and in those circumstances I would refuse this application to reverse the single judge’s decision not to extend time.

Hon Cheung JA:

7.    I agree.

Mr C Y Li, instructed by Messrs Yam & Co., for the Plaintiff/Respondent

Mr Andy Hung, instructed by Messrs Pansy Leung, Tang & Chua, for the Defendant/Appellant