LAM AR FU PETER v. BUILDING AUTHORITY

CACV 68/2019

[2024] HKCA 23

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 68 OF 2019

(ON APPEAL FROM HCAL NO 2259 OF 2018)

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J U D G M E N T

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

The Application

1.  On 1 December 2023, the applicant filed a document in CACV 68/2019 headed “Leave to appeal to the Court of Final Appeal” from “the Registrar [of Civil Appeals] decision dated 15 November, 2023”. In support of this application, he lodged on the same day submissions of 10 pages and a “Supplemental Bundle A” of 168 pages.

2.  In fact, the Registrar did not make any decision on 15 November 2023 but gave directions on 14 November 2023 sent to the applicant by letter dated 15 November 2023. We shall treat this application as an application for leave to appeal against the Registrar’s directions made on 14 November 2023.

Background

3.  The applicant applied for leave to seek judicial review in HCAL 2259/2018 against the decision of the Appeal Tribunal (Buildings) whereby the applicant’s appeal against the building order issued by the Building Authority was dismissed (“the Tribunal’s Determination”) and he was ordered to pay costs of the appeal (“the Tribunal’s Costs Decision”). On 30 January 2019, Chow J (as he then was) refused to grant extension of time for the applicant to seek leave to bring judicial review against the Tribunal’s Determination. The judge also dismissed the application for leave to bring judicial review against the Tribunal’s Costs Decision.

4.  The applicant’s application for leave to appeal against the judge’s refusal to grant extension of time was dismissed by the judge on 9 April 2019 ([2019] HKCFI 878) and his renewed application was dismissed by the Court of Appeal (Lam VP and Au JA) on 10 September 2019 in CAMP 70/2019[1].

5.  The applicant appealed against the judge’s refusal to grant leave to apply for judicial review against the Tribunal’s Costs Decision. On 26 May 2021, the Court of Appeal (Lam VP, Cheung JA and Au JA) dismissed this appeal in CACV 68/2019[2]. His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal (Cheung JA, Chu JA and Au JA) on 29 October 2021[3].

6.  On 7 September 2023, the applicant filed a summons in CACV 68/2019 seeking, among other things, “All decisions of BAT 1184-2010; HCAL 2259-2018; CAMP 70-2019; CACV 69-2019 to be revoked or permanently stayed”. On 6 October 2023, the Registrar directed that this summons be expunged from the court file as the proceedings in CACV 68/2019 had been concluded and the summons had sought decisions in other proceedings (including CAMP 70/2019 and CACV 69/2019) to be revoked or permanently stayed.

7.  The applicant then filed another summons on 24 October 2023 seeking, among other things, “All decisions of BAT 1184-2010 and all High Court decisions based on BAT 1184-2010 to be permanently stayed”. On 14 November 2023, the Registrar gave the direction that this summons be expunged from the court file as the proceedings in CACV68/2019 have been concluded and the Court of Appeal will not further consider the summons lodged by the applicant (“the RCA directions”). This is the decision for which the applicant now seeks leave to appeal to the Court of Final Appeal.

Analysis and disposition

8.  After reviewing the papers and the applicant’s submissions, we think it is appropriate to deal with this application on paper without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.

9.  According to section 22(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal will only be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.  The applicant stated, among other things, the following grounds in support of his application for leave to appeal in his submissions:

(1)  Court orders not practicable for enforcement are neglected by all different levels of the High Court is obviously a point of law of great and general importance to maintain public trust towards the effectiveness of the Hong Kong Judiciary to fulfill its duty;

(2)  Court orders that infringe the constitutional rights of Hong Kong people and left unattended by all levels of the High Court is obviously another point of law of great and general importance to maintain public trust towards the Basic Law;

(3)  Negligence of the High Court towards the High Court Ordinance and the Rules of the High Court that results into the above situations in (1) and (2) is of substantial and grave injustice to be reviewed.

11.  It is apparent that the applicant’s grounds are directed towards previous court orders rather than the RCA Directions. The applicant has already exhausted all avenues of appeal concerning his application for leave to bring judicial review against the Tribunal’s Costs Decision in the present proceedings. It is no longer open to him to seek to review or overturn the related previous court orders or decisions. There is also no basis for him to seek to stay the related orders or decisions. His applications in the summons of 24 October 2023 expunged by the RCA Directions clearly amount to an abuse of process of the court.

12.  Pursuant to Order 1B rule 1(2)(l) of the Rules of the High Court (Cap 4A), the Court has power to take any step or make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. One of the underlying objectives set out in Order 1A is to ensure that the resources of the Court are distributed fairly. As the proceedings under CACV 68/2019 have been concluded and the applicant’s summons is an abuse of process that would cause wastage of judicial resources, the Registrar has appropriately exercised his power in giving the RCA Directions.

13.  The applicant has failed to demonstrate any error in the RCA Directions or that his intended appeal against the RCA Directions would involve any questions of great general or public importance. The grounds stated in support of his leave application are not reasonably arguable.

14.  For the above reasons, the application for leave to appeal to the Court of Final Appeal filed on 1 December 2023 is dismissed.