CHOI SZE FAI v. COMMISSIONER OF CORRECTIONAL SERVICES

CACV259/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 259 OF 1998

(ON APPEAL FROM HCMP NO. 1717 OF 1996)

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J U D G M E N T

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Chan, CJHC (delivering the judgment of the Court):

1. This is an application by the respondent, the Commissioner of Correctional Services for an order that the appellant's Notice of Appeal be struck out on the ground that it is an abuse of the process of the court, alternatively, that the appellant do within 14 days give security in the sum of $82,000 for the respondent's costs of and occasioned by the appeal. The matter arose in the following way and this was set out in the judgment of the court below.

2. In around 1996, the appellant was serving a prison sentence in the Stanley Prison. He complained against the Commissioner of, first of all, conducting an arbitrary search in the cell where he was staying and secondly, of repeatedly failing to give him adequate and timely medical treatment for his illness. It is not necessary for the purpose of the present application to go into the merits of these complaints.

3. On 29 May 1996, the appellant filed a notice of application which was dated 22 April 1996 for leave to apply for judicial review of the "decisions" of the Commissioner. At the time of the filing of this notice of application, the appellant also filed a blank Notice of Motion for judicial review, just in case the application for leave was granted.

4. The late Mr Justice Jerome Chan granted leave on 3 June 1996.

5. Meanwhile evidence was filed pursuant to some directions of the court. It would appear that the appellant also applied for legal aid which was later refused.

6. Pursuant to the leave granted by the judge, a Notice of Motion was filed but only 6 months later on 23 December 1996.

7. The Notice of Motion which was filed was different from the blank form which was filed with the court at the time of his application for leave. Apparently the blank form was not acceptable for filing by the Registry. Since the appellant was not represented, someone corrected it. But the Notice of Motion which was filed must have been filed by the appellant himself or by some one on his behalf since he was then in prison. Nobody would be interested in doing this except to help him. Anyway, it was stated on the backsheet of this Notice of Motion : "Filed this 27th day of December 1996 at 3:05 pm. Choi Sze Fai (Reg.No. 118100) c/o Stanley Prison".

8. This document bore a seal of the Court. There were some handwritings on this document which appeared to be those of the Clerk of Court who marked it "Hon J Chan J, 23 December 1996" and he gave a return date for the hearing of the Motion on 24 April 1997 at 10 o'clock. At the top left hand corner there was some handwritings which appeared to be "C/ J Chan, 12-11-90" (whatever that means).

9. The trial before the late Mr Justice Jerome Chan took place on 24 April 1997. The judge dismissed the appellant's application with costs.

10. The respondent then prepared a bill of costs for taxation. Before the Master, the appellant objected to the bill as well as the taxation alleging that the late Mr Justice Jerome Chan had already made an order for costs in his favour. He said that this appeared in the Notice of Motion filed on 23 December 1996. He said that it was the late judge who had "judicially drafted" this Notice of Motion and it had the effect of an order for costs. The Notice of Motion is in the following terms:

" NOTICE OF MOTION

TAKE NOTICE THAT pursuant to the leave of the Honourable Mr Justice Jerome Chan given on the 3rd day of June, 1996, the Supreme Court of Hong Kong will be moved on Thursday, the 24th day of April 1997, at 10:00 o'clock in the forenoon, or so soon thereafter as the Applicant can be heard for an order for relief in the terms, and on the grounds, set out in the Notice of Application for leave to apply for Judicial Review.

AND THAT the costs of and occasioned by this motion be to the Applicant.

AND TAKE NOTICE THAT on the hearing of this motion the Applicant will use the Affirmations of Choi Sze Fai filed on 29th May 1996 and 8th October 1996 respectively and the exhibits therein referred to.

Dated this 23rd day of December, 1996."

11. The appellant applied to the Master to strike out the application for taxation. The Master dismissed the application and the appellant appealed to the Court of First Instance. Mr Justice Yeung dismissed his appeal. He is taking the matter further to the Court of Appeal. The respondent now applies to strike out this appeal.

12. The appellant had filed a lengthy Notice of Appeal setting out numerous grounds alleging that the Master and Mr Justice Yeung were wrong in not striking out the respondent's application for taxation. It is not necessary to go into each and every ground. Before us, Mr Choi also relied on a written submission setting out his arguments. The main theme was that the Notice of Motion filed by him on 23 December 1996 was "judicially drafted by the late Mr Justice Jerome Chan and his clerk" and was sealed by the court. He said that it could not be anything else but a court order for costs against the respondent. This was because : it was not issued within 14 days but 6 months after leave was granted; the judge accepted it without any ex parte application; only the notice of application for leave to apply for judicial review can contain the relief sought; the Notice of Motion cannot add to or alter any of the statement of relief in the notice of application; the real intention of the late Mr Justice Jerome Chan was not to invite or request him to ask for an order for costs; that was not what he asked for; it is not the function of the court to make such a request on behalf of a party; it was a trap set up by the Department of Justice. The appellant also said that the judge was wrong not to resolve the factual dispute as to who drafted the Notice of Motion in question and had failed to allow the calling of witnesses.

13. Before us, Mr Choi kept saying that the Notice of Motion was a document drafted by the late Mr Justice Jerome Chan. There was in fact no evidence to this effect.

14. Leave to apply for judicial review was granted on 3 June 1996. The appellant should have, according to the rules of court, filed a Notice of Motion within 14 days. The Notice of Motion, after leave has been granted, should contain a Statement of Relief which cannot go beyond that appearing in the notice of application. Hence it is not surprising that the appellant's blank form had to be examined before it was allowed to be filed. The appellant's blank Notice of Motion was not clearly spelt out and could not be accepted for filing. Whoever it was that helped him must have vetted and possibly redrafted the document before filing. The Notice of Motion was approved and sealed by the court. It was a part of the judicial review proceedings. It was clearly not an order of the court, let alone an order for costs. There was no hearing either in court or in chambers with regard to the question of costs. There was no hearing on the merits. The parties did not appear before the judge and no argument was made. There was no reason why the late Mr Justice Jerome Chan could or would have made any order for costs at that stage. That would not be in accordance with any procedure or law. He did not have such power even if he was minded to do so. Whoever helped drafting or correcting the appellant's blank form never intended that this would be an order for costs. Even if the Notice of Motion was indeed drafted by the late Mr Justice Jerome Chan (and there is no evidence on this), it was not intended to be an order for costs because this would be inconsistent with what the judge had ordered at the end of the trial, i.e. that the appellant's application be dismissed with costs. The appellant apparently has taken advantage of the assistance provided to him (whoever did it) and that the judge had passed away and could not answer his allegations. His application to the Master to strike out the application for taxation is an abuse of the process of the court. So was his appeal to the Court of First Instance. Both the Master and the Judge were right to strike it out. His appeal to this Court is nothing else but another abuse. It must also be struck out.