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

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

1.  On 10 March 2014, the Plaintiff issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal against our decision on 19 February 2014. By that decision, for the reasons set out in our judgment of 19 February 2014, we ordered that unless the Plaintiff shall produce the draft appeal bundle by 5 March 2014, his appeal shall be struck out without further notice.

2.  On 11 April 2014, the Plaintiff issued another Notice of Motion seeking to have Lam VP and Macrae JA recused for the hearing of the application.  The grounds of that application were set out in the Notice as follows:

“1. Lam VP had acted unlawfully against the Plaintiff in HCA No. 2351/2005 aiding and abetting Hartmann/Suffiad JJ in the conspiracy for defraud by issuing counterfeit warrants to Police, the offence S72 of Crimes Ordinance Cap 200; and had shown to be dishonest for his cover-up of perjuries committed by Wilfred Wong and Ng S.M. the two witnesses who had asserted without proof in HCAP No. 8/2007 contrary to the legal principle of the law on evidence required of Lam in the administration of the law/justice.

2. Macrae JA had committed offence S72 of Crimes Ordinance Cap 200 issuing counterfeit warrant to Police in the conspiracy of defraud Choy Bing Wing the Plaintiff in HCMP No. 1313/2010; and had shown to be dishonest for is cover-up of perjuries committed by Wilfred Wong and Ng S.M. the two prosecution witnesses in HCCC No. 182/2012 ignoring his duty as required to the onus of proof of the prosecution.”

3.  On 5 May 2014, Lam VP directed that the recusal motion shall be heard on 13 June 2014 (the date scheduled also for the hearing of the leave application). It was also directed that if any members of the court decided to recuse from hearing the matter, the application for leave shall be re-fixed to be heard by another division.

4.  On 8 May 2014, the Plaintiff issued a third Notice of Motion seeking to have the direction of 5 May 2014 set aside and the hearing date of 13 June 2014 vacated.  The grounds for the application, as set out in the Notice, were:

“1. The recusal is made on the grounds of judicial frauds committed by both Lam VP and Macrae JA in their conspiracies of defrauds in HCA 2351/2005 and HCMP 1313/2010 respectively. Choy is waiting for both Lam’s and Macrae’s replies to the release of the tape recordings of HCA 2351/2005 and HCMP 1313/2010 as applied for. Choy’s affirmation against Lam/Macrae will need be filed and shall be filed as soon as Choy receives Lam’s and Macrae’s replies.

2. Lam VP should not continue to be involved in giving directions nor deal with the matters.  His present purported Direction is abusive in turning blind eye to my right of appeal against any adverse outcome of the recusal application violating Articles 35 and 87 of the Basic Law in that Choy’s judicial remedies of appeal to two judges of Court of Appeal to any adverse outcome of the recusal applications heard on 13/6/2014 is deprived by the said Judicial direction and Lam’s said Direction violates the legal principle of the rule of natural justice in that no man a judge in his own cause, per Egerton V Lord Derby (1613) 12 Co. Rep. 114.  As such, Lam’s Direction is void and unlawful and has no legal binding effect.”

5.  Since then, the Plaintiff wrote several letters to the court alleging “judicial frauds” against two members of this court and to have the hearing of 13 June 2014 vacated.

6.  The test for recusal, as recently applied by the Appeal Committee of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd FAMV No 49 of 2013, 13 May 2014, is as follows: whether a fair-minded and informed observer would conclude that there is a real possibility that the tribunal was biased.

7.  The Plaintiff has not filed any evidence in support of the very serious allegations he made in his Notices of Motion of 11 April and 8 May 2014.  Lam VP’s involvement in HCA 2351 of 2005 (as Lam J) was the striking out of the Plaintiff’s vexatious claims against, amongst others, Hartmann J and Suffiad J in respect of their earlier judicial decisions.  The reasons for the striking out were fully and adequately set out in the judgment of 23 December 2005 (reported in [2006] 1 HKLRD 666).  The Plaintiff did not appeal against that decision.  The Plaintiff has absolutely no rational or legal basis to transform that striking out into the “aiding and abetting Hartmann/Suffiad JJ in the conspiracy for defraud by issuing counterfeit warrants to Police”.

8.  The allegation in respect of “the perjuries committed by Wilfred Wong and Ng S.M.” in HCAP No 8 of 2007 is equally bizarre.  That case has nothing to do with the Plaintiff.  Lam J, as the trial judge in HCAP No 8 of 2007 accepted the evidence of these two witnesses.  An appeal against the judgment of Lam J was dismissed by the Court of Appeal and leave to appeal was refused by the Court of Final Appeal.

9.  The same observation can be made with regards to the allegation against Macrae JA concerning HCCC No 182 of 2012 in respect of the evidence of these two witnesses.  Again the Plaintiff had no involvement in that case.  That trial took place before a jury and the verdict of guilt was returned by the jury.  The Plaintiff’s allegation of dishonest cover-up for perjuries committed by these witnesses is not supported by any evidence or reasons.

10.  As regard HCMP 1313 of 2010, Macrae J (as he then was) sat together with McMahon J in December 2010 in a committal of the Plaintiff for contempt of court.  The reasons for finding the Plaintiff guilty were fully set out in the judgment of 7 January 2011.  A warrant for the apprehension and committal was issued against the Plaintiff.  When he was brought back to court, the Plaintiff challenged the warrant.  For the reasons given in a judgment of 11 February 2011 in HCMP 1313 of 2010, the challenge was rejected.  There is no basis for suggesting Macrae J had issued a counterfeit warrant.  The Plaintiff did not appeal against that judgment.

11.  A fair-minded and informed observer will have the benefit of the relevant judgments.  Bearing in mind what has been set out above, such an observer cannot possibly conclude there is any real possibility of this court being biased in our consideration of the Plaintiff’s application for leave to appeal.

12.  As the Appeal Committee observed at para 38 of the Reasons for Determination in  Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd FAMV No 49 of 2013,

“Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for.”

13.  This is particular apposite in view of what we said at para 17 of our judgment of 19 February 2014 in the present appeal.

14.  We do not see any merits in the two Notices of Motion of 11 April and 8 May 2014 in seeking the recusal of Lam V-P and Macrae JA and the vacation of today’s hearing.  We dismissed the application for recusal and the Notice of Motion of 8 May 2014.   

15.  We proceed to deal with the application for leave to appeal.  The Notice of Motion of 10 March 2014 set out three questions,

“(i) Whether the refusals to release the tape recordings of hearings for appeals constitute obstructions to judicial remedies in the cover-ups of the fabrications of judgments/decisions/orders/transcripts by judges of the courts below provided and prescribed under Article 35 of the Basic Law.

(ii) Whether the Court of Appeal has the statutory jurisdiction in the striking-out of appeals for want of bundle as required under Order 59 r.9 of Cap 4A provided and prescribed in S54 of High Court Ordinance of Cap 4.

(iii) Whether it is a judicial nonsense of Court of Appeal for want of appeal bundle to enter into the arena in the exercise of inherent jurisdiction in the vacuum.”

16.  Question (i) is not engaged.  As we have said in our judgment of 19 February 2014, the transcript of the hearing had been produced and the Plaintiff simply failed to collect the same.

17.  As regards question (ii), as explained in our judgment of 19 February 2014, it is well established that this court can strike out an appeal which is an abuse of process.  As to the circumstances under which we exercised this power, it is not simply because the Plaintiff failed to produce a draft bundle.  The persistent contumelious disobedience by the Plaintiff to directions of the court stultified the expeditious and efficient disposal of the appeal.  This was the basis on which we made the unless order we did.  It was an exercise of discretion on the very unusual circumstances of this case.  No question of great general or public importance arises.

18.  For the same reason, question (iii) is a distortion of what we have decided.

19.  The requirement of Section 22 of the Hong Kong Court of Final Appeal Ordinance is not satisfied and leave is therefore refused.  The Notice of Motion of 10 March 2014 is dismissed.

20.  We also order the Plaintiff to pay the costs of the Defendant in respect of these Notices of Motion, such costs are to be taxed if not agreed.