LAM WAI YIP 對 THE SECRETARY FOR JUSTICE

LAM WAI YIP 對 THE SECRETARY FOR JUSTICE

Extension of time to serve the notice of appeal was granted because the appellant filed the notice within the prescribed period at court but failed to effect personal service due to a genuine technical misunderstanding, the respondent had actual notice and was not prejudiced, and the appeal was not shown to be...

Source-derived case information.

Citation
[2022] HKCA 392
Parties
Appellant: LAM WAI YIP (林偉業); Respondent: THE SECRETARY FOR JUSTICE (律政司司長)
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
18 March 2022
Case Number
CACV435/2020
Procedural Posture
Civil Appeal / Application for Extension of Time to Serve Notice of Appeal (interlocutory)
Outcome
Application for extension of time to serve the notice of appeal granted; appeal permitted to proceed; no further service required because respondent had received the amended notice.
Legal Topics
Malicious Prosecution, Service of Process, Extension of Time, Reasonable and Probable Cause, Court Discretion
Source Language
ch
Tort Malicious Prosecution Civil Procedure Service and Extension of Time Appeal Procedure Malicious Prosecution Service of Process Extension of Time Reasonable and Probable Cause Court Discretion

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Summary, issues, holding and outcome

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Parties

LAM WAI YIP (林偉業)

Appellant

THE SECRETARY FOR JUSTICE (律政司司長)

Respondent

Procedural Posture

Civil Appeal / Application for Extension of Time to Serve Notice of Appeal (interlocutory)

Legal Issues

  1. 1 Whether the court should extend time for service of the notice of appeal under Order 59 r.4(1)(c) of the High Court Rules
  2. 2 Whether appellant's failure to serve within time was excusable or merely technical
  3. 3 Whether the standard of 'reasonable and probable cause' applied to a public prosecuting authority in assessing a malicious prosecution claim

Ratio Decidendi

Extension of time to serve the notice of appeal was granted because the appellant filed the notice within the prescribed period at court but failed to effect personal service due to a genuine technical misunderstanding, the respondent had actual notice and was not prejudiced, and the appeal was not shown to be hopeless; therefore justice required exercise of the court's discretion to extend time and allow the appeal to proceed.

Court Disposition

Application for extension of time to serve the notice of appeal granted; appeal permitted to proceed; no further service required because respondent had received the amended notice.

Orders

  • Extend time for service of the notice of appeal to validate the appellant's appeal (extension granted)
  • No requirement for the appellant to re-serve the notice of appeal because the respondent had already received the amended notice