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Progetto Jewellery Co Ltd v Lau Chiu Ying And Another

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date05 May 2021
Neutral Citation[2021] HKCA 604
Year2021
Judgement NumberCAMP61/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP61/2020 PROGETTO JEWELLERY CO LTD v. LAU CHIU YING AND ANOTHER

CAMP 61/2020

[2021] HKCA 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 61OF 2020

(ON AN INTENDED APPEAL FROM HCA 2548/2014)

________________________

BETWEEN
PROGETTO JEWELLERY COMPANY LIMITED Plaintiff
and
LAU CHIU YING 1st Defendant
JOY DESIGN COMPANY LIMITED 2nd Defendant

________________________

(by original action)

AND BETWEEN

JOY DESIGN COMPANY LIMITED Plaintiff
and
FUNG PUI WA 1st Defendant
PROGETTO JEWELLERY COMPANY LIMITED 2nd Defendant

________________________

(by counterclaim)

Before: Hon Lam VP and Yuen JA in Court

Dates of Written Submissions: 6 July, 22 October and 9 December 2020

Date of Judgment: 5 May 2021

___________________

JUDGMENT

____________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1. There are three applications in these proceedings before this Court, all issued by the 1st Defendant, Ms Lau Chiu Ying (also known as “Joy” in the court below) by way of summonses filed on 23 June 2020, 3 July 2020 and 21 October 2020[1]. In these respective applications, Joy seeks essentially: (1) an extension of time to appeal against the judgment given by Deputy High Court Judge MK Liu (“the Judge”) on 22 January 2020 (“the Judgment”), (2) leave to appeal the order for costs made by the Judge on 24 June 2020 when he dismissed her application for extension of time to appeal, and (3) leave to appeal the Judge’s order made on 3 August 2020 in which, amongst other things, he refused a stay of execution.

2. The factual background was set out in the Judgment ([2020] HKCFI 209) at [2] – [14]. In the Judgment, the Judge found for the plaintiff, Progetto Jewellery Company Limited (“PJ”) on most of its claims and dismissed the counterclaim by Joy Design Company Limited (“JD”). The Judge also ordered Joy and JD to pay 98% of PJ’s costs of the proceedings.

3. Subsequently, on 21 May 2020 Joy issued a summons applying for an extension of time to appeal the Judgment. By a decision of 12 June 2020 ([2020] HKCFI 1196), the Judge dismissed that summons and ordered that the costs of that summons be paid by Joy to PJ. By order dated 24 June 2020, the Judge assessed the costs of the 21 May 2020 summons at HK$39,000.

4. On 7 July 2020, Joy issued a summons applying for stay of execution of the Judgment pending determination of her application to this Court for extension of time to appeal the Judgment. On 3 August 2020, the Judge dismissed that summons and ordered that the costs of that summons be paid by Joy to PJ assessed at HK$38,000, with reasons for decision issued on 6 August 2020 ([2020] HKCFI 1835).

5. (a) By another summons of 12 August 2020, Joy applied to the Judge for leave to appeal against the refusal of stay and the order for costs in that decision. (b) By a further summons of 17 August 2020, she applied to the Judge for leave to appeal against the costs order of 24 June 2020. The Judge dismissed both summonses on 9 October 2020 ([2020] HKCFI 2179), with costs to PJ in the amounts of HK$5,800 and HK$6,380 for the 12 August 2020 and 17 August 2020 summonses respectively.

Application for extension of time to appeal the Judgment

6. The Court’s approach in considering an application to extend time to appeal is well settled. In Tang Chai On v Tang Sing Ki, [2016] 5 HKLRD 104, this Court held at [9] (citing Lee Chick Choi v Best Spirits Co Ltd, HCMP 371/2015, [2015] HKEC 899 (CA) at [19]):

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party of the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

7. Pursuant to Order 59, rule 4(1)(c) of the Rules of the High Court, (Cap 4A), the time limit for serving a Notice of Appeal is 28 days from the date of judgment. In the present case, the deadline for Joy to serve a Notice of Appeal expired on 19 February 2020. As she did not do so, she needed an extension of time before she could bring an appeal.

8. Joy did not apply for an extension of time to appeal until 21 May 2020, i.e. more than 3 months late. The delay is substantial. We reject her suggestion that her appeal period did not expire until 19 May 2020 by reference to Order 3 Rule 4. As explained below, the time limit for appeal is reckoned by reference to the service of a notice of appeal which is not an act to be carried out at the court. Order 3 Rule 4 has no relevance in the present context.

9. Joy’s explanations for the delay are set out in Appendix 1 to her affirmation of 22 June 2020, in which she deposed that:

(a) she received an electronic copy of the Judgment from her then solicitors on 22 January 2020;

(b) she ceased to be legally represented as of 24 January 2020 (the eve before the Chinese New Year public holidays);

(c) she was unable to commence an appeal within 28 days after the Judgment because the court was closed from 29 January 2020 to 6 March 2020 and from 23 March 2020 to 5 May 2020 due to the courts’ General Adjourned Period (“GAP”) in light of the COVID-19 pandemic. Though she could have commenced an appeal by serving a Notice of Appeal within 28 days after the Judgment without filing the Notice of Appeal until the court registry reopened, she would not have been able to comply with the requirement to submit the Notice of Appeal to the court within 7 days of serving it;

(d) she was unable to purchase face masks and so she stayed home as much as possible to avoid infection with COVID-19; and

(e) she did not receive a sealed copy of the Judgment until 15 May 2020, and she thought she needed to have a sealed copy in order to appeal.

10. The GAP did not preclude Joy from serving her notice of appeal within time. The closure of the registry had no effect on the running of time as far as service of notice of appeal is concerned. By reason of Order 59 Rule 4(1), the time limit for bringing an appeal is explicitly reckoned by reference to the “service” of notice of appeal not the lodging of the document with the Registrar. Further, as provided under Order 59 Rule 5(5)(1)(b), the notice of appeal so lodged should be endorsed with a certificate of service. Hence, service of the notice of appeal must have been taken place before the same can be lodged. Pursuant to Order 59 rule 3 an appeal is actually commenced by serving a Notice of Appeal on the respondent(s), not by lodging or “filing” it at the court, see Law Bing Kee v Person(s) in Occupation of RP, HCMP 672/2013 (CA), 9 May 2013, at [10] – [14].

11. Regarding the compliance with the obligation of lodging documents under Order 59 Rule 5, they have no effect on the commencement of the appeal, see Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2015] 2 HKLRD 909; Chan Tsui Yan v Social Workers Registration Board [2018] HKCA 333. If the notice of appeal is served in time, the court would be generous in extending time to comply with the obligation under Rule 5 if the sealed judgment is not yet available.

12. In any event, Joy could have lodged the notice of appeal during the window between 9 and 20 March 2020 but she did not do so.

13. As for Joy’s assertion that she was unable to purchase face masks, we are unable to accept that as a reasonable excuse for the long delay.

14. In our view, the delay on the part of Joy to serve the notice of appeal is inexcusable.

15. Since the delay is both substantial and inexcusable, she must demonstrate a real prospect of success before an extension of time could be granted, see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Lee Carol v Tong Hung Wai Tommy [2020] HKCA 325.

16. In assessing the prospect of success on the merits, the Court will bear in mind the following principles:

(a) An appeal is not a second trial of the case. What the appellate court has to consider is mainly the evidence at trial, and whether the decision of the trial judge is right or wrong: Tsang Tak Wai v Building Authority [2018] 1 HKLRD 137 at [7]; and

(b) Accordingly, an appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge: Ng Shek Wai v Independent Commission Against Corruption [2019] 2 HKLRD 586 at [21(a)].

17. Joy did not set out her proposed grounds of appeal in the summons of 23 June 2020. Though there is a document called 「上訴陳述書」produced as Appendix 2 (“the Appendix 2”) to her affirmation of 22 June 2020, this is not a proper draft notice of appeal since its contents are in the nature of submissions and evidence instead of setting out grounds of appeal in a concise and focused manner as required under Order 59 Rule 3(2) and paragraphs 20 to 22 of Practice Direction...

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