SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP 2665 /2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2665 OF 2012

(ON AN INTENDED APPEAL FROM HCMP NO. 1313 OF 2010)

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J U D G M E N T

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Hon Barma JA (giving the judgment of the Court):

1.  This is an application by the Defendant, Mr Choy Bing Wing, for leave to appeal against the decision of L Chan J dated 9 October 2012, whereby the Judge dismissed the Defendant’s appeal against a decision of Master Ho given on 11 September 2012, in the course of taxation proceedings for the taxation of costs awarded to the Plaintiff pursuant to an order of the Court of First Instance dated 11 February 2011.

2.  The background can be briefly stated:-

(1)   On 7 January 2011, the Court of First Instance (McMahon and Macrae JJ) found the Defendant guilty of contempt of court.

(2)   On 11 February 2011, the same court handed down its judgment on penalty. The Defendant was committed to prison for a period of 4 months and was ordered to pay the Plaintiff his costs of the contempt proceedings on an indemnity basis.

(3)   The Defendant did not appeal against either of these judgments of the Court of First Instance.

(4)   On 27 June 2012, the Plaintiff sent to the Defendant a draft bill of costs in the total sum of HK$534,087.30.  As the Defendant did not agree to the amount claimed, on 17 July 2012 the Plaintiff lodged his bill of costs with the court, together with a notice of commencement of taxation, both of which were served on the Defendant.  The Defendant was asked to file his list of objections to the bill within 28 days, failing which the Plaintiff would apply for appropriate directions to be given.  No list of objections having been received, the Plaintiff applied to set the bill down for taxation before Master Hui on 11 September 2012.

(5)   On 5 September 2012, the Defendant filed an affirmation objecting to the application for taxation on the ground that the court has no jurisdiction to tax the costs of the contempt proceedings, because those proceedings were (according to the Defendant) in violation of various provisions of the Basic Law.

(6)   On 11 September 2012, Master Ho, to whom the taxation proceedings had been transferred, adjourned them to 9 October 2012 for a call over hearing, and directed the Defendant to file his list of objections within 14 days, failing which the bill would be taxed as drawn.

(7)   It was this order against which the Defendant appealed to L Chan J.  In his submissions before the Judge, the Defendant repeated his objection to the taxation proceedings and insisted that they should be dealt with, citing various provisions of the Basic Law.

(8)   The appeal was heard on 5 October 2012 by L Chan J, who dismissed it on 9 October 2012.

3.  The Judge’s reasons for dismissing the appeal to him were explained in paragraph 9 of his Decision, as follows:-

“9. Having considered the defendant’s affirmations and amended written submissions, I do not think he has any ground to pursue this appeal. None of the articles of the Basic Law he cited has any relevance to the taxation proceedings. If he is dissatisfied with the costs order that was made in the contempt proceedings, he should have appealed against that order or the decision on the contempt proceedings. The taxation proceedings are conducted to assess the amount of costs payable under the costs order. There is no consideration of the merits of that order in these proceedings. The defendant’s attacks, which are aimed at that order, cannot affect the conduct and progress of the taxation proceedings.”

4.  The Defendant’s application to the Judge for leave to appeal was dismissed on 15 November 2012.  He now renews his application to this court.  In an affirmation dated 22 November 2012, the Defendant asserts that the costs which are the subject of the taxation arose from unlawful acts of the HKSAR Government, and that there was, for that reason, no jurisdiction in the court to tax such costs.  He goes on to say that the Judge should therefore have dealt with this issue, and in failing to do so, was in breach of his judicial oath under Article 104 of the Basic Law.  In his statement in support of this application, he makes the same points.

5.  In our view, there is no merit whatsoever in these points or the Defendant’s proposed appeal.  Any complaint concerning the correctness of the Court of First Instance’s judgments in the contempt proceedings could only be pursued by way of an appeal against such judgments.  Having failed to pursue his rights of appeal, the Defendant is not entitled to attack the validity of the costs order against him in the course of the proceedings for the taxation of the costs payable thereunder, as to do so would amount to an impermissible collateral attack on the judgment and costs order in the contempt proceedings.  Master Ho was therefore right to give directions to enable the taxation to proceed, and the Judge was plainly right to dismiss the Defendant’s appeal against those directions.

6.  As the intended appeal has no reasonable prospect of success, the application for leave is refused.  Further, we are satisfied that the intended appeal is totally devoid of merit and therefore direct that no request for a reconsideration of this court’s determination of the applications at an oral inter partes hearing is to be made.

7.  So far as costs are concerned, these must be paid by the Defendant to the Plaintiff, and will be assessed summarily by this court.  To that end, the Plaintiff is directed to lodge a statement of such costs within 14 days, and the Defendant to lodge a statement of his objections thereto if any, within 14 days thereafter.  Should the Plaintiff wish to reply to any such objections, he should do so within 7 days after that.