PETER PO FUN CHAN v. WINNIE C W CHEUNG AND ANOTHER

Date of Hearing: 30 January 2007

Date of Judgment: 30 January 2007

Date of Handing Down Reasons for Judgment: 13 February 2007

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an application to extend time for applying for leave to appeal to the Court of Final Appeal and, should time for making such application be extended, for leave to appeal on the grounds that the matters raised in the proposed appeal were of great or general public importance.  At the conclusion of the hearing of this application, the application was refused with reasons to be given in writing which we now do.

2.  The background to this matter can be gleaned from the reasons for decision handed down by Cheung JA on 30 June 2006 when he extended time for appealing to this court and in the decisions of Chu J given on 6 February and 6 March 2006.  The judgment of this court in respect of which leave to appeal to the Court of Final Appeal is sought was given on 13 October 2006.  That judgment resulted in the applicant having leave to bring judicial review proceedings.  As explained in that judgment, the complaint by the applicant was that his application to be restored to the register, which was in the circumstances effectively a formality, was delayed for so long that the delay, in itself, formed an extra penalty.  This court considered that the applicant was fully justified in bringing judicial review proceedings.  His initial attempts to do so were made, apparently, without legal assistance.  It is perhaps, not surprising, therefore, that his application was held to be not in an appropriate form.  Nevertheless, the applicant has now sought legal advice and engaged solicitors and counsel to act on his behalf.  His application to apply for judicial review has in consequence undergone a thorough re-draft.

3.  The notice of motion for this applications was not issued until 14 December 2006.  Although the affidavit of Mr Harrod purports to explain the delay and even contains the statement that any delay in applying for leave to appeal was not the fault of the respondents, it appears to me that no valid reason for extending time to make the application has been put forward.  The respondents were acting for and on behalf of and with the full support of a recognized and well-established professional body.  It is not suggested that the respondents had not been advised as to the time limits.  Nor is it suggested that the legal professional advisers were in any way incompetent or at fault.  Rather, the history of the events set out in Mr Harrod’s affidavit demonstrates that the matter was handled without any degree of dispatch.  I would also add that the notice of motion that was prepared resembles more a full and detailed written argument or verbose affidavit; it is not in the form appropriate for a notice of motion.  Those responsible would have been better advised to have drafted it in the conventional form and that might, possibly, have reduced the delay to some extent.  In those circumstances I would not be prepared to extend time for making the application for leave to appeal.

4.  Even if I had considered that it might have been appropriate to extend the time for making the application for leave to appeal I would not have been prepared to grant leave.  An application for leave could only be made under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 that is on the basis that the questions involved in the appeal were such that by reason of their great general or public importance or otherwise ought they to be submitted to the court for decision.  The points sought to be raised appear, in many respects to go beyond the arguments which were raised on the appeal in this court.  The overall difficulty however appears to me to be that this is an application for leave to bring judicial review proceedings.  It is not the application for judicial review proper.  It is only the first step in the process.  The step is thus a sieving process.  As stated in the Judgment given on 13 October 2006 the applicant has a clear grievance and should be in a position to seek redress.

Hon Le Pichon JA:

5.  I agree.

Date of Hearing: 13 October 2006

Date of Judgment: 13 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 from a decision of Chu J, given on 6 February 2006, and 6 March 2006, when leave to appeal was refused.

2.  Leave to appeal out of time was given by Cheung JA and he has really set out the material facts which bear upon the decision that this court might otherwise have had to come to, as to whether leave to bring the judicial review proceedings should be given. 

3.  It suffices for me to say that I consider that leave to bring judicial review should have been granted right at the outset.  To put it in very simple terms, this was a complaint that the applicant’s application to be restored to the register, which was in the circumstances merely a formality, was delayed for so long that it, in effect, formed an extra penalty.  In my view, his application to be restored to the register should have been dealt with very expeditiously and it was not and in those circumstances he is fully justified in bringing judicial review proceedings.

4.  That said, it seems to me that all the costs incurred in the court below should be costs in the application.  The costs in this court, because it was necessary to bring this appeal, will have to be costs to the applicant because it was necessary for him to come here and necessary for him to get the order for him to be allowed to bring the judicial review proceedings.

5.  I can only conclude that I hope that this sorry chapter, which has been now going on for a very long time and commenced with anonymous letters, which has already been the subject of comment from this court, will soon come to an end.

Hon Le Pichon JA:

6.  I agree.