CHOY BING WING v. PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)

CACV 172/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2013

(ON APPEAL FROM HCA NO. 1994 OF 2012)

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JUDGMENT ON COSTS

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Hon Lam VP (giving the Judgment on Costs of the Court):

1. On 19 February 2014, after a hearing in which the Defendant was excused from attending (though written submissions were placed before us) and the Plaintiff chose to be absent, we ordered the appeal be struck out unless the Plaintiff produced a draft bundle for approval by 5 March 2014. We also gave the costs of the striking out proceedings to the Defendant.

2. The Plaintiff did not produce any draft bundle before the deadline and the appeal was struck out accordingly.

3. The Defendant’s solicitors applied for costs of the appeal on 13 March 2014.

4. On 17 March 2014, the following directions were given for the disposal of the application for costs:

(a) The application for costs shall be dealt with on paper;

(b) The Plaintiff shall lodge and serve submissions on costs by 24 March 2014; and

(c) The Defendant shall lodge and serve reply submissions by 31 March 2014.

5. The Plaintiff did not lodge any submissions on costs.  Instead, he wrote to this court on 18 March 2014 disputing the court’s power to deal with the matter on paper.  He contended he has a right to attend court in person to argue for costs.  He also alleged that the court and the Defendant had been “culprits in the conspiracy to defraud” him.

6. We do not understand his allegation and we cannot see any basis for such attack on the integrity of the court.  We are not going to let such unwarranted remarks derail the judicial process.

7. As regards the power of this court to direct a simple matter (like an application for costs) to be dealt with on paper instead of at an oral hearing, this is expressly provided for as a power of active case management under Order 1A rule 4(2)(j).  With the directions for lodging written submissions in place, there is no question of the Plaintiff being deprived of a fair opportunity to be heard.  As explained by Ribeiro PJ in Chow Shun Yung v Wei Pih (2003) 6 HKCFAR 299 at para 37, the right to a hearing does not always require oral submissions.

8. Paper disposal is particularly appropriate in the present circumstances in view of the following,

(a) The remaining question of costs of the appeal is a simple and straightforward matter;

(b) It would be disproportionate to require the parties to incur further costs in terms of an oral hearing on such a matter;

(c) It is also not conducive to the fair distribution of judicial resources to have an oral hearing on this matter; 

(d) The Plaintiff did not deem it necessary to attend the hearing on 19 February 2014 and did not even have the courtesy of informing the Court or apologizing for his absence.  This rather undermines the importance he attached to an oral hearing;

(e) The Plaintiff has been abusive to the court in his correspondence.

9. We see no reason why we should not decide the question of costs when the Plaintiff chooses not to put in substantive submissions despite opportunity being given to him to do so.

10. We cannot see any reason why costs of the appeal should not follow the event.  Since the appeal has been dismissed, the Plaintiff must pay the Defendant the costs of the appeal, such costs are to be taxed if not agreed.