TANG SING YU AND OTHERS v. TANG TAT KWONG AND OTHERS

Date of Hearing: 12 February 2007

Date of Decision: 12 February 2007

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D E C I S I O N

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1.  I have read the application in this case and I have read all the papers in this case and I do not see how I can allow this application for stay of execution for a large number of reasons. 

2.  Until this application, the Defendant was represented by lawyers and I can only assume that everything was put before the Court which should have been put before the Court.  In those circumstances, I can see no ground for leave to appeal now to the Court of Final Appeal but, apart from that, I do not see that an application has yet been made for leave to appeal to the Court of Final Appeal.  There is a draft application before me but I do not see that a date has yet been fixed.  That is, however, one of the documents which I did consider and I do not now see how those are viable grounds of appeal to the Court of Final Appeal. 

3.  So my view remains the same, that I do not see at the moment that there is a viable appeal to the Court of Final Appeal.  Hence, I regret that I cannot see it would be right for me to grant any extension of time. 

(Discussion as to costs)

4.  I shall make an order for costs to the Plaintiff.

Date of Hearing: 11 October 2006

Date of Judgment: 11 October 2006

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal against a judgment of Tang J.  It involved a piece of land in the New Territories.

2.  Tang J heard the evidence.  He heard evidence from both sides.  He came to the conclusion that a tenancy existed.  He did not accept everything that the plaintiff said.  Nevertheless, having considered all the materials in front of him and the factors in favour of the plaintiffs and in favour of the defendants, he did not accept that the defendants had been squatters on the property for as long as the defendants cared to say.  It was a simple question of fact and I do not propose to go into the facts.

3.  Mr Chan has come here this morning with a Notice of Appeal, which asks us to overrule those findings of fact.  In view of the clear law as to the role of this court in considering findings of fact by the courts below, I see absolutely no possibility of the defendants disturbing the judge’s findings of fact on the basis of the arguments that have been put forward in this court.  They were set out in the Notice of Appeal and I would simply say that what was set out in the Notice of Appeal are facts which emerged from the judgment.  The judge clearly took them into account when he came to his conclusion that the defendants had not established that they had been squatters for the requisite period, but that they had indeed been tenants on the land, and that the plaintiff was entitled to judgment.

4.  In my view, this appeal should never have been brought and was a disgrace.

Hon Le Pichon JA:

5.  I agree.

Hon Sakhrani J:

6.  I also agree.

Mr Paul Harris SC and Mr George Lam, instructed by Messrs Ken Chiu & Co., for the Plaintiffs/Respondents

Mr Richard Chan, instructed by Messrs Joseph Leung & Associates, for the 1^st and 2^nd named Defendants/Appellants

Date of hearing and decision: 26 January 2006

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DECISION

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Hon. Yuen JA:

1.  This is an application by the 1^st and 2^nd named 1^st Defendants ("the appellants") to extend time for notifying the Plaintiffs ("the respondents") of the setting down of an appeal from an order of Tang J. (now Tang JA) made on 8 October 2004 entering judgment for the respondents.

2.  The order was sealed on the same day (8 October 2004). 

3.      A Notice of Appeal was served (in time) on the respondents’ solicitors by solicitors for the appellants on 2 December 2004. 

4.      On the following day 3 December 2004, the requisite documents were lodged and the requisite fee was paid by the appellants’ solicitors so as to cause the appeal to be set down under Order 59 rule 5(1): Hong Kong Civil Procedure 2006, §59/5/17, China Weal Ltd v Lau Sau-wah [2001] 1 HKLRD 351. 

5.      Under Order 59 rule 5(4), the appellants’ solicitors should have notified the respondents’ solicitors of the setting down within 4 days, i.e. by 8 December 2004 (5 December 2004 being a Sunday and therefore excluded from the computation of 4 days: §59/5/17).

6.      That was not done due to an error on the part of a clerk of the appellants’ solicitors. 

7.      On 17 December 2004, the respondents’ solicitors asked the appellants’ solicitors whether the appeal had been set down.

8.      The next day (18 December 2004), the appellants’ solicitors wrote in reply saying "the Notice of Appeal has been filed in Court on 3^rd December 2004".  Although that did not say in as many words that the appeal had been set down, there is no set form for a notification of setting down and it is normal practice to do this by letter.  Indeed in China Weal Ltd v Lau Sau-wah, Keith JA said that the notice may even be given orally.  Since the letter of 18 December 2004 was in reply to an inquiry whether the appeal had been set down, I consider that was sufficient notification of setting down, albeit 10 days late (8 December to 18 December 2004).  The fact that this would have been understood to be notification of the setting down of the appeal is also supported by the fact that the respondents’ solicitors did not make any further enquiries along the same lines as their letter of 17 December 2004.

9.      Apparently, nearly a year later in November 2005, when the appellants’ solicitors sought to fix a date for hearing, the Appeals Registry declined to do so because of the late notification of setting down.  I am not aware that the notification of setting down had to be filed with the Appeals Registry as there are no rules so providing.  In any event, on 22 November 2005, the letter of 18 December 2004 had been shown by the appellants’ solicitors to the Appeals Registry and the Registry should then have been satisfied that the respondents had been notified of the setting down of the appeal the year before.

10.      Be that as it may, by a letter dated 25 November 2005 the appellants’ solicitors asked the respondents’ solicitors to "consent to our application to file the Notification of setting down out of time".  That consent was not forthcoming, hence this application.

11.      I have no doubt in the present case that the court should order that the letter of 18 December 2004 be deemed to be valid notification of setting down notwithstanding that the time limited under Order 59 rule 5(4) had expired.  The Notice of Appeal was served in time, the documents required for setting down were lodged in Court well within time, and the delay in notification is relatively minor (in fact, the deadline for notification would have been as late as 15 December 2004 if the appellants had taken advantage of maximum time limits for setting down and notification).  The respondents have not suggested that they have suffered any prejudice.  Mr George Lam counsel for the respondents accepts that there were no merits in the respondents’ objection. 

12.      It is clear that the court’s discretion would only be properly exercised in favour of making the order I have referred to above.  I can only say that I am surprised that this summons had been opposed until the parties appeared this morning.

(After argument on costs)

13.      I would order that a gross sum of $800 be paid by the appellants to the respondents as their costs of considering this summons and the supporting affirmation (which should not have taken the respondents’ solicitors more than 10 minutes) but the costs of the hearing today should be to the appellants in any event.  The respondents’ solicitors have also given an undertaking that they would not charge their clients for their costs (including counsel’s fees) of today’s hearing.