LAM AR FU PETER v. BUILDING AUTHORITY

CAMP 284/2023, [2023] HKCA 1315

On An Intended Appeal From [2022] HKCFI 3712 &

[2023] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 284 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2259 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  The is the Applicant’s application for leave to appeal or, alternatively, for an extension of time to appeal, against the decision of Wilson Chan J (“the Judge”) dismissing the Applicant’s application for a review of a taxing master’s decision on costs under Order 62, rule 35 of the Rules of the High Court , Cap 4A (“RHC”).

2.  Having considered the papers and the submissions before us, we consider that it is appropriate to deal with the present application on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) and/or rule 14A(1) of the RHC.

BASIC FACTS

3.  In HCAL 2259/2018, the Applicant applied for leave to apply for judicial review of the decisions of the Appeal Tribunal (Buildings) (“the Tribunal”) dismissing his appeal in Case No 1184-2010 and ordering him to pay the Building Authority (“the BA”)’s costs of the appeal. On 30 January 2019, the Court of First Instance (Chow J) dismissed the Applicant’s application for leave to apply for judicial review.

4.  Arising out of the proceedings in HCAL 2259/2018, the Court of First Instance made 2 orders for costs in favour of the BA against the Applicant dated 30 January 2019 and 9 April 2019 respectively (“the Costs Orders”).

5.  The Applicant subsequently appealed or sought leave to appeal, unsuccessfully, against the Court of First Instance’s decisions or orders referred to in §§3 and 4 above[1]. The Costs Orders were not disturbed by the Court of Appeal.

6.  On 10 December 2021, Master Hui taxed the BA’s costs under the Costs Orders. On 21 April 2022, Master Hui rejected the Applicant’s application for a review of his decision under Order 62, rule 34 of the RHC.

7.  The Applicant applied for a further review of Master Hui’s decision on review to a judge pursuant to Order 62, rule 35 of the RHC. On 19 December 2022, the Judge gave his decision (“the Decision”) rejecting the Applicant’s application for review.

8.  On 1 August 2023, the Judge rejected the Applicant’s application for leave to appeal against the Decision. The Judge held that (i) the Decision was final in nature, and thus the Applicant was entitled to appeal against the Decision to the Court of Appeal as of right and did not require leave to appeal, and (ii) in any event, the Applicant’s intended appeal had no reasonable prospect of success and there was no other reason in the interests of justice why the appeal should be heard, and thus leave to appeal would be refused had the Applicant required leave to appeal.

THE PRESENT APPLICATION

9.  By a summons filed in the Court of Appeal dated 14 August 2023 (“the Summons”), the Applicant renewed his application for leave to appeal against the Decision. In the Summons, the Applicant also asked for his application to be treated as an application for an extension of time to appeal if the Judge was correct in holding that he was entitled to appeal as of right.

DISCUSSION

10.  The Judge’s view that the Decision was final (not interlocutory) and thus leave to appeal was not required was based on the decision of Deputy High Court Judge Saunders in Lam and Lai Solicitors v Ho Chun Yan Albert, HCMP 555/2015 (27 July 2017), at §§8-9 and 11-12. Although the appeal against the substantive decision of Deputy High Court Judge Saunders was subsequently allowed by the Court of Appeal in CACV 172/2017 (28 February 2018), there was no discussion on the issue of whether leave to appeal was required in the judgment of the Court of Appeal.

11.  In the present application, the BA maintains that leave to appeal against the Decision is not required. As earlier mentioned, the Applicant is prepared to treat the present application as an application for an extension of time to appeal if the Judge was correct in holding that he was entitled to appeal as of right. The BA is content for this course of action to be followed. In the circumstances, we shall proceed on the basis that leave to appeal against the Decision is not required, and treat the present application as an application for an extension of time to appeal.

12.  The crux of the Applicant’s argument in his intended appeal lies in his contention that the building order issued by the BA dated 10 December 2010, being the subject matter of his appeal to the Tribunal in Case No 1184-2010, has been “abandoned” by the BA by reason of a subsequent building order issued on 9 June 2021 which superseded the earlier building order of 10 December 2010. The Applicant contends that the BA’s conduct in issuing the new building order amounts to a “withdrawal” of the previous proceedings, and hence the Costs Orders have become invalid, and the court has lost its power to deal with those proceedings, including taxation of the Costs Orders.

13.  The Applicant’s argument is misconceived. The Costs Orders are orders of the Court of First Instance, and are valid and binding on the Applicant unless and until they are set aside by a higher court. The Costs Order have never been so set aside. Nothing that is done by the BA can lawfully affect the validity of the Costs Order. They remain legally valid, and are binding on the Applicant.

14.  At §6 of his written submissions dated 14 August 2023, the Applicant makes a faint complaint of judicial copying against the Judge. However, the Applicant has failed to identify any part or parts of the Decision which he alleges was/were copied from the BA’s submissions. The Applicant has failed to make good his complaint of judicial copying. In any event, the Decision was not based on any consideration of oral evidence given by any witness. The issues in contention are issues of law, and we are in as good a position as the Judge in determining them (see Lo Kai Shui v HSBC International Trustee Ltd [2023] HKCA 983, at §16). We have considered the Applicant’s arguments independently and do not adopt any deferential standard of review in the present case, and come to the conclusion that the Applicant’s intended appeal is not reasonably arguable.

15.  In our view, the Applicant’s intended appeal has no merit and no reasonable prospect of success. That being the position, it would be futile to extend time for the Applicant to appeal against the Decision.

16.  In passing, we would add that it does not matter whether the present application should be treated as an application for an extension of time to appeal or an application for leave to appeal. The outcome would be the same. If the present application should be treated as an application for leave to appeal, we consider it to be clear that the Applicant’s intended appeal has no reasonable prospect of success, and we can see no other reason in the interests of justice why the appeal should be heard. Thus, leave to appeal should not be granted.

DISPOSITION

17.  The Summons is dismissed with costs to the Putative Respondent. We summarily assess the Putative Respondent’s costs. We have considered the Putative Respondent’s costs statement dated 29 August 2023 seeking costs in the total amount of HK$15,529. The items and the amount of costs claimed by the Putative Respondent are reasonable, and are allowed in full.

18.  This judgment is written in English because the Applicant’s Summons and Affidavit in support dated 14 August 2023 are both written in English. If required, the Applicant may make an arrangement with the Clerk to this Court for the judgment to be orally interpreted to him in Chinese in the Court’s premises at a mutually convenient time.