Lai Siu Wai Louis Lawful Attorney Of 譚翠好 v Ho King Yin Edwin And Others

CourtDistrict Court (Hong Kong)
Judgment Date11 July 2012
Judgement NumberDCCJ4041/2011
Subject MatterCivil Action
DCCJ4041A/2011 LAI SIU WAI LOUIS lawful attorney of 譚翠好 v. HO KING YIN EDWIN AND OTHERS

DCCJ4041/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4041 OF 2011

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BETWEEN

LAI SIU WAI LOUIS
lawful attorney of 譚翠好
Plaintiff

and

HO KING YIN EDWIN 1st Defendant
LEE KWOK MAN 2nd Defendant
LAM SHU KEE 3rd Defendant

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Before: H H Judge Chow in Chambers (Open to the public)

Date of Hearing: 11 July 2012

Date of Decision: 11 July 2012

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D E C I S I O N

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1. This is the defendants’ application for leave to appeal against the decision made by this court on 24 April 2012. This application was taken out on 22 May 2012.

2. The plaintiff opposed the application, saying that it was made out of time. The defendant argued that it was made within the time under the relevant Rules of the District Court (“RDC”). Very clearly, the summons was made on the basis that it was not out of time. There has been no amendment to the summons. In the course of submission, the defence counsel says that if this court finds that the application was out of time, then this court should grant leave to appeal out of time. Now, I have to consider what is the application before I make the decision. Very clearly, there is only one application, namely, that the defendants be granted leave to appeal on the basis that it was within time. There is no amendment to the summons. The defence counsel asked me to grant leave out of time if the application was made out of time. Now, the application out of time cannot be conditional, namely, it cannot be made conditional upon the finding by this court that it was made out of time, because before this court makes the decision, there is no application relating to appeal out of time. This is quite clear. The defence counsel made this application on the basis that it was within time, so he cannot also at the same time say that this application was made within time. This would be contradictory.

3. When I make my decision regarding whether it was out of time or not at that time, there cannot be any application before me by the defence counsel if the decision is against him, namely, it was out of time. So put it simply, there is no application to the effect that this summons was made on the basis out of time.

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