XCHRX THE BAR COUNCIL v. SUI SEE CHUN

1994, No.MP3108

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an appeal against the refusal by Master Betts to grant a stay of execution on the costs awarded in favour of the Bar Council which has been taxed already.

2. At the first hearing of this appeal, Mr Sui submitted two grounds for stay of execution. He said that he had lodged a petition to Her Majesty the Queen pursuant to the 1833 Act; and he said that the relevant provision authorising the Barristers Disciplinary Tribunal to award costs in favour of the Bar Council is void because of the Bill of Rights and the Letters Patent. As he developed his submission, he informed me that both his reference to the petition to the Queen and the application to the Privy Council for special leave to appeal against Litton J.A.'s referral, have no relevance to the application today. But then he seemed to change his mind and said that the right to petition to The Queen was after all of relevance because it was the decision of the Disciplinary Tribunal that was wrong. And, he said he would appeal to the Court of Appeal as well. I take that to mean that he would pursue his appeal in the Court of Appeal which he had already lodged. But he told me that he had no intention at the first hearing to pursue the appeal to the Court of Appeal pending the decision of Her Majesty the Queen on the petition. He also drew my attention to a writ which he had issued, but I was told not served, claiming damages against the Bar Council for a conspiracy to perform an unlawful act, or to abuse a process of the court, for the sum of $50 million and half a million dollars respectively. It was on that note that the hearing was adjourned on 29 March to enable Mr Sui to file further affirmation in support of his appeal.

3. We are back here today, almost eight months later. Mr Sui applied for extension of time for him to adduce further affidavits. I refused the application as no reasonable ground has been shown to excuse his failure to serve the intended evidence on the respondent within the time prescribed in my Order dated 29 March this year.

4. I was given the impression by Mr Sui that today's appeal is not really important to him any more. It appears to be his view that he is penniless and therefore there is absolutely nothing the Bar Council can do against him as regards enforcement of the costs order. He assumed that the Bar is not going to do anything to enforce the costs order because of the pending appeal, on the belief that the Bar Council is not going to irritate him in the meantime by such act. Nevertheless, I have to decide the appeal whether Mr Sui wished the matter to be determined today or not. He does not appear to wish to do that, because he asked for an adjournment. It was strenuously opposed by Mr Tang, and I refused the application for adjournment as I see no ground for it at all.

5. The first issue to be decided in this appeal was the question of jurisdiction. It was submitted by the Bar Council that the Master and consequently myself have no jurisdiction to grant any stay of execution of costs awarded by the Barristers Disciplinary Tribunal. I was referred to the provisions contained in s.37(b) of the Legal Petitioners Ordinance as well as Order 59 rules 1, 10(9) and 13. It was submitted by Mr Tang that only the Court below, meaning the Barristers Disciplinary Tribunal, and the Court of Appeal, whether it be a full court or a single judge of the Court of Appeal, that can order stay of execution of the costs granted by the Barristers Disciplinary Tribunal. He submitted that the fact that costs so ordered were taxed in the High Court and, if necessary, were to be enforced by process in the High Court, is not relevant to the jurisdiction to grant a stay of execution.

6. I agree with him on the proposition of law that the place of taxation and enforcement would not be relevant to the existence or non-existence of jurisdiction to grant a stay of the costs order itself. I agree the interpretation placed upon the various statutory provisions by the Bar Council is the correct one - that there is no jurisdiction for the Master or myself to grant any stay of execution of the order for costs made by the Barristers Disciplinary Tribunal. That would effectively dispose of the appeal.

7. But in the event I am wrong on that, I am also of the view that on the merits of the application for a stay of execution, the appellant, Mr Sui, has failed to establish any ground to enable the Court to exercise the discretion in his favour. There is no evidence placed before the Master or this Court to raise any case of prejudice or financial difficulty or grounds of similar nature.

8. Mr Sui has not been able to establish any argument that he stands a good chance to win the appeal and/or costs if paid to the Bar Council may not be recoverable if he wins the appeal. I am not persuaded that there is a very good prospect in the appeal nor is there any risk of costs not being recoverable in the event of a successful appeal.

9. I can see no other grounds nor has the appellant relied on any other lawful grounds for the Court to exercise any discretion to a grant of stay in his favour. For reasons given, the appeal is dismissed.

(Jerome Chan)

Judge of the High Court