HCMP 2540/2006






  IN THE MATTER of the Order of Deputy High Court Judge D. Pang dated 30th June 2006 under High Court Magistracy Appeal No. HCMA 1032 of 2005 on appeal from TWS 8817 of 2005 and TWS 8818 of 2005
  IN THE MATTER of Costs in Criminal Cases Ordinance, Cap. 492 and Costs in Criminal Case Rules, Cap. 492A, Laws of Hong Kong SAR



  HKSAR Respondent


Coram: Mr. Registrar C. Chan in Chambers

Date of Hearing: 20 December 2006

Date of Judgment: 15 January 2007




1. This is an application by Sethi Rajinder Pal Singh trading as World Wide Travels (“the Applicant”) for extension of time underRule 9 of Costs in Criminal Cases Rules, Cap 492A, to institute and serve his Appointment to tax. The Applicant does not specify whether he makes the application for extensionunder Rule 9(1) or Rule 9(2). I treat it under both.

2. According to Rule 6(1), the Applicant had to lodge his claim for costs and files it with court before the expiry of 3 months’ period after the makingof the costs order on 30 June 2006. The time expired on 30 September 2006. It is not disputed that there had been some negotiationbetween the parties within that period. On 28 September 2006, 2 days before the expiry, the Respondent HKSAR made the last counter-offer,which I understand, was “far from substantive and therefore was unacceptable”. Since then, there was no further negotiation.

3. The Applicant filed the present application on 1 December 2006, two months after the expiry of statutory period. In the affirmationof Yu Shiu Ming in support, the only reason given is found in paragraph 10 which states:

“10. Since the costs order was made on 30th June 2006 and the offer of settlement was only put forward by DOJ on 28th September 2006, there was insufficient time for the preparing an itemized bill of costs for taxation proceedings.”

At the hearing before me Mr. So of counsel for Applicant further submitted that the extension will not cause any prejudice to theRespondent in raising objection to any item of the bill. It is not a long delay.

4. What Mr. So has said is correct but this is not what the law requires me to consider. Rule 9(1) states as follows:

“(1) Subject to subrule (2), the time limit within which there must be made or instituted a claim for costs by a claimant underrule 6, … can on application, for good reason, be extended by the taxing authority.”

5. The Rule requires the Applicant to provide “good reason” before extension is granted. I do not find the following are good reasons:there had been negotiation, the negotiation did not break down until 2 days before the expiry giving no time to prepare a detailitemized bill for taxation and there will be no prejudice to the Respondent’s position.

6. The Applicant has been legally represented by a solicitor firm. They are supposed to know the law and to protect the interest ofthe Applicant. It is not the Applicant’s case that they were misled by the Respondent that the negotiation would soon be concludedand for that reason they did not prepare an itemized bill. Even if it were so, they should immediately make an application for extensionof time after the breakdown of the negotiation. It seems to me that the Applicant has only one reason as stated in paragraph 10of the Affirmation in support: they had no time to prepare the bill. This is not a good reason.

7. After I had indicated to Mr. So that there was no evidence explaining the two months’ delay, he told me that during the periodthose instructing him moved office from the address “Room 1915, 19th Floor, North Tower, Concordia Plaza, No. 1 Science Museum Road, Kowloon, Hong Kong” to the present one at “Room 1601, 16th Floor, Grand Centre, No. 8 Humphreys Avenue, Kowloon, Hong Kong”. The fact is not disputed as the documents filed in court bearthis out.

8. This definitely is not a good reason under Rule 9(1) for failing to file and institute the claim within the 3 months’ period. Before October 2006, the solicitor firm still stayedat the former address. They should have prepared the costs claim and filed it with the court. They had not done so. It may bean oversight on the part of the solicitors. I cannot regard it as a good reason for the extension of time.

9. As I would not grant extension under Rule 9(1) for lack of “good reason”, then I have to consider whether the Applicant can invoke Rule 9(2) which states:

“(2) Where a claimant, … without good reason has failed, or, if an extension were not granted, would fail, to comply with a timelimit of the description mentioned in subrule (1), the taxing authority can on application, in exceptional circumstances, extendthe time limit for a further period not exceeding 21 days.”

10. By “exceptional circumstances”, I use its ordinary meaning “very unusual”. I do not consider the move of office as “veryunusual”. The move is not related to the claimant himself but to the private reason of the claimant’s solicitor.

11. Ms. Lam, Senior Government Counsel, refers to the case of R v North Kent Justices, ex parte McGoldrick & Co, 160 JP 30, the Independent on 6 February 1995, unreported, where Shiemann J, Queen’s Bench, considered and decided on the same point “exceptionalcircumstances”. At page 2, he said, ‘The “exceptional circumstances” referred to in that paragraph must relate to somethingother than explanations for failing to submit the applications in time.’

12. He gives his reasons in the paragraphs following:

“ Regulation 12(1) on the face of it applies both to applications within and outwith the three-month time limit. If procedurallyunmeritorious cases can be considered outside the three-month limit, then there is no reason to impose a more restrictive regimeon those which are procedurally more meritorious, the more so since the opening words of para 2 preclude the procedurally more meritoriouscases from being considered under that paragraph. It follows that in the case of an application made after the expiry of the three-monthlimit, nothing in para 12(1) prevents the time limit from being extended for good reason. That good reason needs to relate to thequestion: “Why was the application not made within three months?”

Regulation 12(2) is, as the opening words make clear, not concerned with the question of why a delay occurred. It is concernedwith whether there are exceptional circumstances which should lead the decision-making body to extend the time, notwithstanding thatthere was no good reason for the delay …”

13. I do not intend to make a ruling on that point as I have not heard the argument from the Applicant. For the purpose of this judgmentI do not take the view of Shiemann J on board, the Applicant submitted the following matters for me to consider:

“ (1) we have moved once since our firm’s establishment in 2000;

(2) most of our manpower was tied up in locating a new place; designing layout and arranging decoration for new office; close watchingon the progress of decoration so as to meet the date scheduled to move; choosing furniture; cleaning up after decoration; packingup and moving all files, equipments, machines, etc. during the relevant period;

(3) as our Counsel submitted during the hearing that it would be too harsh to the claimant, in this first application, to be deniedtaxation; and

(4) contrary to the cited case of HKSAR v Ko Hon Kwan and Yuen Ng Fung in which the Claimant failed to apply for leave before filing of taxation bill, we did properly take out the application for extensionof time first.”

14. I do not know what is the significance of point (1). It means that 6 years ago the solicitor firm had moved their office once. This is the 2nd time. I cannot see how it will help to advance his argument.

15. Point (2) tells us a lot of the matters that the solicitor firm had to attend to for the move, and their attention had been divertedfrom normal legal work. As I have stated, this oversight cannot be regarded as a “good reason”. Neither do I think it properto treat it as “exceptional circumstance”.

16. Point (3) stated that it would be too harsh to the claimant who applied for extension for extension for the first time. In ordinarycases of extension of time for filing of document with court, the law does not specify under what conditions the court should makethe order. In Rules 9(1) and 9(2), it has been clearly spelt out that there must be “good reason” or “exceptional circumstance”. I have to follow the rule and I have no power to waive it.

17. As to whether it is too harsh to the claimant, I do not think so. If the solicitor firm is found to be negligent, the claimant Applicantcould have his redress in a different way.

18. I accept the circumstances in the case of HKSAR v Ho Hon Kwan and Yuen Ng Fung, FLCC 2403 of 1999, unreported, cited by the Respondent are quite different. But, it does not mean that the court has to grant leavebecause of that. I accept that in that case the Department of Justice for the Respondent had at least twice reminded the applicantof Rule 6 but in this case none whatsoever. The applicant in that case just simply filed the bill for taxation without applyingfor extension of time. I accept that these are distinguishable matters. At that time, the Rules were in place for 3 years. Nowit has been 6 more years down the road. The legal practitioners should be fully aware of the legal consequences resulting from thefailure.

19. For the reasons stated above, I find no “good reason” or “exceptional circumstances” in this case that justifies the courtto grant an extension of time. Accordingly, I dismiss the application with the following costs order nisi:

(a) Costs be to the Respondent HKSAR assessed by me in the sum of $12,500; and

(b) This order shall be made absolute 14 days after receipt of this judgment unless application is made in writing to vary this order.

  (Christopher C. Chan)

Mr. K.C. So instructed by Messrs. Eric Yu & Co. for Applicant.

Ms. V. Lam, Senior Government Counsel of Department of Justice for Respondent.