CHAU HON-LEUNG AND ANOTHER v. KONG KWOK-CHOI AND OTHERS

CACV000031/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 31 OF 1975

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BETWEEN:
CHAU Hon-leung Appellants
TSUI Hing-kwong
(Defendants)
and
KONG Kwok-choi
HO Yun-chi (married woman)
KONG Wan-sin (an infant through his next friend and father KONG Kwok-choi) Respondents
KONG Wan-ying, (an infant through her next friend and father KONG Kwok-choi) (Plaintiffs)
KONG Wan-lun (an infant through her next friend and father KONG Kwok-choi)

Coram: Briggs, C.J. and McMullin, J.

Date of Judgment: 24th September, 1975.

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JUDGMENT

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1. This is an appeal from the assessment of damages made by a Registrar of the Supreme Court in a running-down action. The plaintiffswere given leave to appeal against the decision of the Registrar on the 11th June, 1975.

2. We think that this appeal has been brought before the wrong court. Section 18(7) of the Supreme Court Ordinance says:-

“(7) Any person affected by any order or decision of the Registrar made pursuant to jurisdiction conferred by any Ordinance may, subjectto any provision to the contrary in any Ordinance, appeal therefrom to a judge at chambers.”

3. It is true that Order 58 rule 2 provides that an appeal shall lie to the Full Court and not to a judge in Chambers from any assessmentof damages made by a Registrar. But it is obvious that Order 58 rule 2 is ultra vires the Supreme Court Ordinance. When that orderwas inserted in the Rules of the Supreme Court an amendment to section 18(7) of the Ordinance was overlooked and though an amendmenthas been requested it has not yet been made. Mr. Tang, for the defendants, argued that since the word “ordinance” is defined in theInterpretation Ordinance to mean an “ordinance” or “subsidiary legislation”, the bringing of the appeal to the Full Court under Order58 rule 2 was legitimate in view of the wording of that section. He argued that as “ordinance” means subsidiary legislation, Order58 is part of an ordinance and as that Order provides that an appeal such as we are dealing with here may be made to the Full Court,the plaintiffs have come before the correct tribunal.

4. We do not think that this is right. It is fundamental that rules made under an Ordinance cannot enlarge the scope of that Ordinanceor contradict the provisions of that Ordinance, or contain provisions inconsistent with that Ordinance. Therefore, Order 58 rule2 is ultra vires. It purports to give a right of appeal to the Full Court while the Ordinance restricts that right to a judge inchambers.

5. In any event, the order of the Registrar allowing an appeal was out of time. Under section 18(7) the plaintiffs had five days inwhich to lodge an appeal from the decision of the Registrar. The Registrar’s decision was given on the 14th April, 1975 and leaveto appeal was given on the 11th June, 1975.

6. In the circumstances, we think the correct order to make in this case is to treat this application as an application for leave toappeal out of time under Order 59. We, therefore, grant leave to appeal out of time to the plaintiffs. The time to be fourteen daysfrom today’s date. There is a cross-appeal on the part of the defendants which has been withdrawn. The costs will be reserved.

(Geoffrey Briggs)
President.

Representation:

Murphy (J.S.M.) for Appellants

Robert Tang (H.H. LAU & Co.) for Respondent.