LEE CHICK CHOI v. THE HONG KONG GOLF CLUB

CAMP 329/2023 & CAMP 358/2023, [2026] HKCA 682

On Appeal from [2023] HKDC 515 & [2023] HKDC 1672

(Heard together)

CAMP 329/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 329 OF 2023

(ON AN INTENDED APPEAL FROM DCEO NO 11 OF 2019)

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CAMP 358/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 358 OF 2023

(ON AN INTENDED APPEAL FROM DCEO NO 11 OF 2019)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

A. Introduction

1.  The Claimant, Lee Chick Choi (“Lee”), brought an equal opportunities claim (DCEO 11/2019) against the Defendant, The Hong Kong Golf Club (“Club”).  Following a trial before HHJ Jonathan Wong (“Judge”), Lee’s claim was dismissed by a judgment dated 20 April 2023, [2023] HKDC 515, [2023] 2 HKLRD 1117 (“Judgment”).

2.  On 28 November 2023, the Judge handed down his decision on the summary assessment of costs [2023] HKDC 1672 (“Costs Decision”).  That was the actual summary assessment of the costs ordered in the Judge’s Decision dated 11 October 2023 [2023] HKDC 1318.

3.  The Judgment and the Costs Decision have given rise to the two present sets of applications made by Lee for leave to appeal:

(1)  CAMP 329/2023 relates to the Judgment; and

(2)  CAMP 358/2023 relates to the Costs Decision.

4.  We are dealing with both sets of applications together.

5.  As a result of the numerous applications made by Lee, numerous directions have been made, including for the filing of composite bundles and submissions.  Furthermore, it was directed that no further applications may be taken out, so that this Court may determine the leave applications without further delay.

6.  In respect of CAMP 329/2023, Lee has lodged his composite written submissions in support dated 10 May 2024.  Those submissions address the following summonses filed by Lee:

(1)  Lee’s summons dated 24 October 2023 for leave to appeal against the Judgment dismissing his claims (“CA Leave Application”);

(2)  Lee’s summons dated 18 January 2024 for leave to adduce new evidence (“1^st Evidence Summons”); and

(3)  Lee’s further summons for leave to adduce new evidence dated 26 February 2024 (“2^nd Evidence Summons”).

7.  The Club lodged its composite written submissions in opposition dated 24 May 2024.  Lee then lodged his composite written submissions in reply dated 31 May 2024.

8.  Lee lodged another set of composite written submissions dated 10 September 2025, arising from further summonses filed by Lee:

(1)  Lee’s summons dated 16 May 2025 for leave to adduce new evidence (“3^rd Evidence Summons”);

(2)  Lee’s summons dated 4 August 2025 for leave to adduce new evidence (“4^th Evidence Summons”); and

(3)  Lee’s summons dated 4 August 2025 for re-re-amendment of his summons, grounds of proposed appeal and draft notice of appeal (“Re-Re-Amendment Summons”).

9.  It is fair to note that the lengthy submissions filed by Lee are significantly repetitive of, and make reference to, the submissions he made at trial.

10.  The Club lodged its composite written submissions in opposition dated 22 September 2025.

11.  On 27 October 2025, Lee referred to his composite written submissions filed and served on 10 September 2025, and sought to address what he described as “the fresh new issues happened after” he had filed those composite submissions, “deserving the Court of Appeal’s consideration”.  The letter’ makes reference to others proceedings, not relevant to the present applications, and/or materials which were previously available and used in DCEO 11/2019.  We do not think those materials add to the consideration conducted below.

12.  As to CAMP 358/2023, on 9 October 2024, Lee indicated in his letter to this Court that he had decided to dismiss the application “without costs”.  On 7 November 2024, the Club confirmed that it had no objection to Lee’s proposed dismissal of CAMP 358/2023.  However, the Club sought that the costs be summarily assessed on an indemnity basis.

13.  As the summons is no longer pursued, it should be dismissed.  What is outstanding is the question of costs.

14.  In a letter from the Court dated 12 February 2026, the parties were informed that the various summonses had been placed before Anthony Chan JA for consideration.

15.  In a letter dated 18 April 2026, headed with both CAMP 329/2023 and CAMP 358/2023, Lee enclosed various letters and documents.  They either duplicate materials already provided, or make reference to a different set of proceedings, CAMP 102/2026, with which we are not presently concerned.

16.  Lee is acting in person.  The Club is represented by Mr Martin Kok of Counsel.

17.  We have considered the various submissions and papers (though for present purposes we need not rehearse them in full below).  Having done so, we think it is appropriate to proceed with determining the applications based on the papers – as was previously informed to the parties.

18.  This is our Judgment.

B.  Background, Judgment and Costs Decision

19.  The broad shape of the DCEO 11/2019 proceedings was described by the Judge in the Judgment at §§1.1 to 1.5.

20.  In September 2015, Lee began working for the Club as Assistant Chief Marshal/Bag Drop at one of its clubhouses.

21.  Since around April 2016, Lee began to experience pain in his left shoulder (“Disability”).  That was not caused in the course of his employment by the Club.

22.  On 23 September 2016, the Club informed Lee that his employment would be terminated with one month’s notice, effective from 24 September 2016.

23.  Lee claimed relief under the Disability Discrimination Ordinance Cap 487 (“DDO”). His claims included monetary relief and reinstatement. His contention was that his employment was terminated by reason of the Disability and/or related sick leave taken, in breach of sections 6(a) and 11(2)(c) of the DDO.

24.  The Club denied the claim.  Its case was that Lee’s employment was terminated solely because of his unsatisfactory work performance and attitude, which were entirely unconnected with the Disability.

25.  In his Judgment dismissing Lee’s claim, the Judge held:

(1)  In relation to section 6(a) of the DDO, the court would generally consider two issues, namely the comparator issue and the causation issue.  Where there was no actual comparator, the court was entitled to adopt a hypothetical comparator.  However, where the identity of the comparator was in dispute, and the identification of the appropriate comparator would cause unnecessary complications, it may be more appropriate to adopt the alternative approach of focusing on the cause of the conduct: Judgment §§2.5–2.6.

(2)  The burden was on a claimant to prove discrimination on a balance of probabilities.  There was no presumption that acts done or omissions made in respect of a person with a disability were done or made on the ground of that person’s disability.  But under section 3 of the DDO, if something was done or omitted for two or more reasons and one was because of the prohibited attribute, then, whether it was the dominant or a substantial reason, the act or omission was deemed to have been done or omitted by reason of the prohibited attribute: Judgment §2.7.

(3)  For the purposes of section 11 of the DDO, the words “dismissing” and “dismissal” must be given their broadest meaning, i.e. any form of termination, including by way of notice or wages in lieu of notice.  Those only discharged an employer’s obligation under the contract of employment but did not exempt an employer from liability for discrimination: Judgment §2.8.

26.  The Judge’s analysis of the evidence and findings of fact is set out in detail in section 4 of the Judgment.  On the evidence, the court found as a fact that Lee had failed to prove, on a balance of probabilities, that the termination of his employment was connected to the Disability.  This was so whether one adopted the two-stage comparator approach or the alternative approach (which primarily asked the “why” question): Judgment §5.1.

27.  By way of a costs order nisi, Lee was ordered to pay the Club’s costs of the actions (and any costs reserved), including the costs of and incidental to Lee’s application to vacate the trial, on an indemnity basis, to be taxed if not agreed, with a certificate for counsel (“Nisi Order”): Judgment §7.4.

28.  On 4 May 2023, Lee issued a summons (1) to vary the Nisi Order to an order that each party bear their own costs and (2) for a stay of execution of the costs pending his intended appeal against the Judgment.  On 18 May 2023, Lee then applied for leave to appeal against the Judgment (“DC Leave Application”).  The Judge directed that the variation application, stay application, and the DC Leave Application be dealt with by paper disposal.

29.  On 11 October 2023, the Judge handed down his decision [2023] HKDC 1318 (“DC Leave Decision”):

(1)  On the variation application, this was rejected. The Judge held that:

(a)  In view of his findings in the Judgment, it was plain that Lee’s claim was frivolous and was bound to fail, and Lee’s claim was brought maliciously.

(b)  Those matters warrant an order that costs should be paid on an indemnity basis.

(c)  Finally, under Rules of the District Court (“RDC”) Order 22, because Lee had failed to obtain judgment better than the Club’s sanctioned payment, the Club is entitled to its costs on an indemnity basis after the latest date on which Lee could have accepted the sanctioned payment without the leave of the court and interest on an enhanced rate until the date of Judgment.

(2)  The Judge dismissed the stay application on the basis that Lee had not demonstrated an arguable appeal.

(3)  The Judge dismissed the DC Leave Application:

(a)  The Judge pointed out to Lee that the draft Notice of Appeal only posed a number of questions and did not identify any errors in the Judgment.

(b)  Lee never addressed this defect in his written submissions.

(c)  The Judge held that this defect warranted a dismissal of the DC Leave Application.

(d)  In any event, the Judge went on to consider Lee’s arguments and dismissed the appeal nonetheless.

(4)  Finally, with respect to all three applications, the Judge ordered that Lee pay the Club the costs of the DC Leave Application and stay application on an indemnity basis, with a certificate for counsel, and that Lee pay the Club the costs of the variation application on a party and party basis, with a certificate for counsel.

30.  On 24 October 2023, Lee filed a summons, i.e. the CA Leave Application.  Though it erroneously sought leave to appeal against the DC Leave Decision, we have treated it as a renewed application made to this Court for leave to appeal against the Judgment dismissing his claims.

31.  On 28 November 2023, the Judge handed down the Costs Decision [2023] HKDC 1672, for the summary assessment of the costs ordered to be paid by Lee to the Club.

32.  On 12 December 2023, Lee filed a summons seeking leave to appeal against the Costs Decision.  On 30 April 2024, the Judge handed down his decision (“Costs Leave Decision”) [2024] HKDC 661 dismissing that application.  The application was rejected because Lee had not pointed out how the Judge’s assessment had fallen into error.  The costs of the application were summarily assessed in the Club’s favour.

C.  Applicable Principles

33.  The principles on an application for leave to appeal are well-settled, and do not require much reference to authority.

34.  Leave to appeal shall not be granted unless the Court hearing the application is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard.

35.  Leave to appeal is not lightly granted.  To meet the threshold of a reasonable prospect of success, it must be shown that the prospect of succeeding is more than fanciful, without having to be probable.  In other words, the applicant is required to show more than just an arguable case, although he does not have to demonstrate that the appeal will probably succeed.

36.  In the context of an appeal against factual findings, the appellant must overcome a very high threshold to succeed.  In particular – as set out at Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105 at §19 – (1) the Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is plainly wrong, (2) in an appeal, the Court of Appeal focuses on the question whether the primary judge has fallen into palpable errors which could give rise to grounds for intervention by the appellate court and it is not germane that the Court of Appeal may reach a different conclusion from that of the judge, and (3) it is not helpful for counsel and litigants in person merely to repeat submissions already advanced and considered by the primary judge at the trial, and the starting point should be the judgment of the primary judge and the identification of palpable errors.

37.  An assertion that a finding is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in closing submissions are not errors which justify appellate intervention: see Man Kwong Kau v Wong Wai Hong [2024] HKCA 505 at §19(4).  Where a trial judge has reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are: (1) where there was no evidence to support the conclusion, (2) the conclusion was based on a misunderstanding of the evidence, or (3) the conclusion was one which no reasonable judge could have reached.

38.  With respect to appeals against costs orders, this Court has previously emphasised that its scope of intervention is “very circumscribed”: see Greater China Capital Inc v GB Times Ltd [2018] 1 HKLRD 210 at §3.  Thus, this Court should examine whether a primary judge committed any palpable error in the exercise of the discretion on costs.  In the absence of such an error, the mere fact that the appellate judges might have exercised the discretion in a different manner is not a sufficient ground to warrant interference with the decision of the primary judge.

39.  An application to adduce further evidence on appeal cannot be entertained until leave to appeal has been granted.  What the Court can do in an application for leave to appeal is to consider the new evidence proposed to be adduced on a de bene esse basis, if it can be shown it is reasonably arguable that leave to admit such evidence would be granted under the criteria in Ladd v Marshall [1954] 1 WLR 1489 at p.1491: see Securities and Futures Commission v Leung Anita Fung Yee Maria [2025] HKCA 444 at §29.  If these criteria are not satisfied, such new evidence should be disregarded for the purpose of the application for leave to appeal: see Man Tin Fook v 梁根林 [2019] HKCA 846 at footnote 1 of §2.

40.  The conditions under Ladd v Marshall for determining whether new evidence should be admitted for an appeal are: (1) the evidence could not have been obtained with reasonable diligence for use at the trial (“Condition 1”); (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive (“Condition 2”); and (3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible (“Condition 3”).

41.  Even if the three conditions in Ladd v Marshall are not satisfied, the Court of Appeal retains a residual discretion to admit new evidence in exceptional circumstances where the “interests of justice” so require: see Solicitor (529/2018) v Law Society of Hong Kong (No. 2) [2021] 5 HKLRD 445 at §19.  However, in practice, such discretion is unlikely to be exercised in private law matters.

42.  The degree of reasonable diligence which the court expects the defendant to have exercised “must be assessed against the overall circumstances of the case” and “the court will take into account all relevant factors, such as the time available to the defendant to gather the evidence, the nature of the evidence, the difficulty encountered in obtaining the evidence, the effort the defendant had used in gathering the evidence”: see Sky Joy Investment Ltd v Zheng Dunmu [2018] HKCA 259 at §13.

43.  Bearing these principles in mind, we will now consider each application in turn.

D.   CAMP 329/2023

D.1  The Evidence Summonses

44.  Before delving into the CA Leave Application, we can first consider each of the evidence summonses.

45.  In his written submissions, Lee has correctly identified the three conditions in Ladd v Marshall.  However, Lee simply makes the bare averment that the conditions have been satisfied.  Lee does not make any substantive submissions on how each condition has been satisfied in respect of his applications.

D.1.1 1^st Evidence Summons

46.  Lee seeks to adduce 4 exhibits:

(1)  Exhibit 1: This includes Lee’s letter addressed to the Chief Judge of the District Court on 15 December 2023, and the relevant documents annexed to that letter.  The 15 December 2023 letter relates to Lee’s complaint against the Judge’s clerk.

(2)  Exhibit 2: Lee’s skeleton submissions lodged in support of his leave to appeal application before the Judge, as well as the Statement of Truth signed by Ms Amy Lee for the Notice of Response filed and served in DCEO 11/2019.

(3)  Exhibit 3: A complaint form lodged with the Law Society of Hong Kong on 19 September 2023 regarding Ms Cynthia Chung.

(4)  Exhibit 4: Lee’s skeleton argument and submissions in opposition to the Judge’s order dated 28 August 2023, correspondence, and annotations made to the draft order.

47.  In respect of Exhibit 1, the correspondence is irrelevant to the appeal.  Lee contends in his submissions that the correspondence is relevant because it demonstrates that he would have had a chance to subpoena Ms June Cheng.  However, this is incorrect because Lee had previously applied for leave to appeal against the Judge’s dismissal of the subpoena applications, but Lee confirmed to the Court of Appeal that he would no longer be pursuing those applications: see Lee Chick Choi v The Hong Kong Golf Club [2023] HKCA 938 at §§3–4.  Consequently, the application to adduce Exhibit 1 is unmeritorious.

48.  As to Exhibit 2, Lee argues that the Club had tried to ‘cover up’ the Statement of Truth.  We do not see any merit in this argument.  To the extent that Ms Amy Lee gave evidence which departed from the Notice of Response, the Judge in his DC Leave Decision, at §2.24, has already confirmed that any such departure was “minor” and dealt with in the Judgment at §4.11.  We cannot find any fault in the Judge’s reasoning, or see how the skeleton submissions and/or Notice of Response are relevant to the present leave to appeal application.  Furthermore, the Judge has already made his assessment of Ms Amy Lee’s credibility and was clearly aware of the minor departure from the evidence.  We are not placed, nor are we tasked, with re-assessing the evidence.

49.  Exhibit 3 is irrelevant to the present application.  Lee’s allegations that Ms Cynthia Chung may have made various statements about the Judgment on YouTube have no bearing on the present application.

50.  Finally, regarding Exhibit 4, Lee seems to contend that the Judge ‘copied’ the draft order, and this demonstrated “judicial copying”.  We see no merit in that contention and therefore see no relevance in adducing the document.  It is common practice for parties to draft orders for the consideration of the judge, and for the judge to adopt or amend draft orders as necessary.

51.  The 1^st Evidence Summons is dismissed.

D.1.2 2^nd Evidence Summons

52.  Lee seeks to adduce 2 (or 3) exhibits – where the third item is not exhibited to the affirmation in support of the 2^nd Evidence Summons, but is mentioned in the affirmation, and we therefore deal with it for completeness:

(1)  Exhibit 1: A letter issued by Lee, with enclosures, to the Judge’s clerk in relation to the transcript.

(2)  Exhibit 2: A complaint form against the Club’s Counsel.

(3)  Exhibit 3: Lee raises as an issue the fact that the Judge delayed his handing down of the Judgment

53.  As to Exhibits 1 and 2, these documents are irrelevant.  They have no bearing on the present application and do not identify any errors in the Judgment or the Judge’s order.

54.  As Exhibit 3, it is self-evidently irrelevant.  The hearing concluded on 21 October 2022, and despite the Judgment originally being scheduled to be handed down on 30 December 2022, it was handed down on 20 April 2023.  See also the DC Leave Decision at §§2.37-2.38.

55.  The 2^nd Evidence Summons is dismissed.

D.1.3 3^rd Evidence Summons

56.  Lee seeks to adduce evidence regarding Ms Cynthia Chung of Deacons and a YouTube video.  The evidence has no bearing on the present leave to appeal application whatsoever.  Ms Cynthia Chung is not a party to these proceedings, and her YouTube video has nothing to do with the disputes between Lee and the Club.

57.  Further, Lee’s submissions in support of his application do not explain how, if at all, the various exhibits would have an important influence on the result of the case.

58.  The 3^rd Evidence Summons is dismissed

D.1.4 4^th Evidence Summons

59.  It is unnecessary to describe each of the documents sought to be adduced under this summons.

60.  The relevance of them is not apparent.  But Lee states in his affirmation in support of the 4^th Evidence Summons that the present application is necessary because of his complaint against Ms Cynthia Chung.  As we have stated above, Lee’s complaint regarding Ms Cynthia Chung has no bearing on the present leave application.

61.  In any case, exhibits 1 to 5 were documents arising from the present proceedings, and they fail to satisfy Condition 1 of Ladd v Marshall.

62.  Exhibits 6 to 8 are letters marked ‘without prejudice save as to costs’ and relate to the Costs Decision.  They have no bearing on the present leave application.  Further, and in any event, as set out below, any leave to appeal against the Costs Decision is no longer being pursued.

63.  In his affirmation, Lee says that exhibits 9 to 12 are “proof and evidence” that the Judge had not considered the three without prejudice letters when delivering his Costs Decision.  However, Lee is no longer pursuing an appeal in CAMP 358/2023 regarding those matters.  Those exhibits are clearly irrelevant to the present leave application and have no bearing on CAMP 329/2023.

64.  The 4^th Evidence Summons is dismissed.

D.2  Re-Re-Amendment Summons

65.  The Re-re-amendment Summons refers to the exhibits relating to the 3^rd and 4^th Evidence Summonses.  Considering our view that the evidence summonses ought to be dismissed, the proposed re-re-amendments fall away.  Therefore, this summons is also dismissed.

D.3  CA Leave Application

66.  In his amended draft grounds of appeal, Lee sets out five grounds of appeal:

(1)  Ground 1: Error of law.  Lee argues that the Judge made errors in respect of the 17 September 2015 contract, which was subsequently amended on 29 April 2016.  In essence, Lee seems to contend that the Judge’s determination that the amendment was not related to Lee’s Disability was wrong.

(2)  Ground 2: Error of fact.  Lee argues that the Judge erred by failing to consider various facts.  The thrust of Lee’s complaints seems to be that the Judge ignored certain facts in relation to his termination letter, and that his termination could not have been the result of his performance issues.

(3)  Ground 3: Serious procedural error or other irregularity.  Lee contends the Judge was wrong and unjust to have dismissed his subpoena application(s) at trial.

(4)  Ground 4: Abuse of discretion.  Lee appears to allege that the Judge was biased against him, thereby undermining the integrity of the proceedings.

(5)  Ground 5: Judicial copying.  Lee alleges the Judge engaged in judicial copying.

67.  We can address each ground in turn.  But we can note here that the draft grounds fail to identify any errors, let alone palpable errors, in the Judgment as might warrant intervention by this Court.

D.3.1 Ground 1: Error of law as to 17 September 2015 contract and its amendment on 29 April 2016

68.  Contrary to the heading in Lee’s grounds of appeal, he does not identify anyerror in law.  To the contrary, the allegations in Ground 1 appear to be factual issues.  There are also no discernible errors of law identified and set out in Lee’s submissions or the draft ground of appeal.  Simply asserting that the Judge applied the wrong rule to the facts of the case does not properly identify any error of law.

69.  Lee alleges in his reply submissions that he had proved that his termination was connected to his Disability.  This is patently incorrect, and merely amounts to an assertion that the Judge should have reached a different result.  The Judge found as a fact that Lee had failed to prove, on a balance of probabilities, that the termination of his employment was connected to the Disability: Judgment §5.1.  There is also no reasonably arguable basis to assert that the Judge had ignored parts of Lee’s closing submissions at trial.

70.  With respect to Lee’s complaints about the “comparator issue”, no such issue arises given the Judge’s findings of fact that the termination of his employment was unconnected to the Disability: see also DC Leave Decision §§2.18-2.20.  In any event, the Judge indicated that he would have reached the same decision on the alternative approach, and no basis of challenge to that has been raised.

71.  This draft ground of appeal is without merit.

D.3.2 Ground 2: Error of fact in that the Judge erred in failing to consider various facts

72.  As we have stated above, it is not helpful for Counsel and litigants in person merely to repeat submissions already advanced and considered by the primary judge at trial.  The starting point should be the judgment of the primary judge and the identification of palpable errors.  We have also set out the kinds of mistake which could engage an appellate court’s power of intervention.

73.  In his written submissions, Lee simply states that the Judge “made errors in fact which were clearly wrong”.  This is nothing more than a bare averment.  Whilst, in his draft grounds of appeal, Lee makes various complaints regarding the Judge’s findings and the Judge’s supposed failures properly to consider his closing submissions, Lee does not identify any palpable errors such that the Judge was reasonably arguably plainly wrong.  Essentially, Lee is running the same arguments previously pursued at trial.  This is not the purpose of an appeal.

74.  In any event, considering the Judgment, the Judge’s reasons were cogent.  The Judge was best placed to consider and weigh the evidence of Ms Amy Lee: Judgment §§4.22-4.23. The Judge’s reasons for preferring the Club’s evidence over Lee regarding the staff performance record were cogent: Judgment §§4.24-4.37.  The Judge’s analysis of the contemporaneous documents and evidence regarding the events from late August until termination was sound: Judgment §§4.38-4.53.  Importantly, the Judge noted that in Lee’s initial EOC complaint on 3 October 2016, despite a host of complaints, Lee made no mention of the Disability.  The Judge also properly analysed Lee’s complaints of “dirty tricks” being used against him and rejected Lee’s complaint: §§4.54-4.59.

75.  Perhaps most critically, the crucial findings – which Lee does not challenge in the draft Notice of Appeal – were (1) that the performance issues were discussed at the Exit Meeting is evidenced in Lee’s own letter of 25 September 2016 (two days after the Exit Meeting) and (2) it was his own evidence (given in cross-examination) that he left the Exit Meeting with a very clear impression that he was terminated due to his performance: Judgment §4.53, and DC Leave Decision §2.30.

76.  Lee has not demonstrated any palpable errors in the Judgment.

D.3.3 Ground 3: Procedural irregularity on subpoena applications

77.  Lee argues that it was wrong and unjust for the Judge to have rejected his subpoena applications at the pre-trial review held on 12 July 2022.  However, this ground is misconceived and is also an abuse of this court’s process.

78.  First, there are no submissions or grounds setting out how the Judge exercised his discretion incorrectly.

79.  Second, in any event, Lee had previously applied for leave to appeal against the Judge’s dismissal of the subpoena applications, but Lee confirmed to the Court of Appeal that he would no longer be pursuing those applications: see Lee Chick Choi v The Hong Kong Golf Club [2023] HKCA 938, §§3-4.  Moreover, the Court of Appeal also held at §7 that “the claimant’s intended appeal lacked merits and would have no reasonable prospect of success”.  Having chosen not to pursue that appeal, it is an abuse of the process now to try to pursue an appeal in these proceedings – not least after this Court has already identified that the application lacked merit.  This was also reiterated in the DC Leave Decision at §2.36.

D.3.4 Ground 4: Abuse of discretion – bias

80.  This ground of appeal is groundless and ill-founded.

81.  Lee’s allegation stems from the Judgment §3.4, where the Judge stated, “In relation to Mr Kok’s point that Lee has been found in other cases to be a vexatious litigant, I have in my deliberation focused on the evidence as adduced in the present case.  For the reasons set out below, I do not need to resort to that aspect in coming to my conclusions”.

82.  The Judge unequivocally stated that he did not need to resort to other cases in which Lee was found to be a vexatious litigant.  The Judge solely focused on the evidence adduced before him at the trial.  The Judge confirmed the same in his DC Leave Decision at §§2.33-2.34.

83.  To the extent that Lee challenges other findings in the Judgment, Lee has not identified any palpable errors made by the Judge.  Moreover, this was not pursued in Lee’s written submissions.  We reject this draft ground of appeal.

D.3.5 Ground 5: Judicial copying

84.  Lee’s allegations against the Judge regarding judicial copying are entirely without merit.

85.  In his DC Leave Decision at §2.40, the Judge noted that there was no appeal by Lee against the approach adopted in the Judgment, and that, in so far as judicial copying remained a part of Lee’s case, Lee has not identified which (or any) part of the Judgment was copied from Mr Kok’s submissions.  The position remains the same.  Lee has still failed to identify any part of the Judgment that was copied from Mr Kok’s written submissions at trial.

86.  At its highest, Lee is really complaining that the Judge accepted the Club’s submissions.  This is not a plausible ground of appeal.

D.4  Disposition

87.  We dismiss CAMP 329/2023 and all the underlying applications.

88.  As to costs, the Club has correctly noted that this Court has repeatedly reminded litigants that where leave to appeal is refused at first instance, they should carefully reflect on the merits of their case before renewing their application to the Court of Appeal.  Unmeritorious applications, such as this, may face orders for costs on an indemnity basis.

89.  Considering the matter in the round, we are of the view that this case has “special and unusual” features that warrant such an order for costs to be assessed on an indemnity basis.  In his applications, submissions, and draft grounds of appeal, Lee (1) has failed to identify any issues with any specificity, (2) has failed to identify any palpable errors in the Judgment, (3) has pursued points previously abandoned by him, and/or already ruled as having no merit, and (4) has issued a large number of unmeritorious applications, on a rolling basis over months.

90.  Therefore, we make an order for Lee to pay the Club’s costs on an indemnity basis.  They will be summarily assessed.

E.   CAMP 358/2023

E.1  Dismissal

91.  Lee’s summons for leave to appeal to the Court of Appeal against the Costs Decision was issued on 29 November 2023. However, on 9 October 2024, Lee indicated in his letter to this Court that he had decided to dismiss CAMP 358/2023 “without costs”.  We formally dismiss the application.

E.2  Costs

92.  Whilst the Club has agreed to the dismissal, it seeks costs.  Hence, as we indicated above, what remains is the issue of costs.

93.  In the circumstances of this case, and in the exercise of our discretion, we see no good reason to depart from the general rule that costs should follow the event.  We so order.

94.  We also accept the Club’s submission that its costs should be assessed on an indemnity basis.  This is because (1) there were no merits in the application, especially given the circumscribed nature of costs-only appeals, (2) Lee did not identify any grounds of appeal or reasons why the Court of Appeal should interfere with the Costs Decision, (3) this had previously been identified by the Judge in the Costs Leave Decision, who also pointed out that this was not the first time Lee pursued an application for leave to appeal this way, (4) Lee repeatedly failure to comply with the Court’s directions, resulting in this application being delayed, and (5) the Club incurred time and costs preparing the composite bundles and submissions before Lee requested that the present application be dismissed.  We reject Lee’s suggestion that the Club prematurely lodged and served its submissions.  Master Yip directed that it lodge and serve its first skeleton by 3 October 2024, which it did.  Lee’s withdrawal of his summons was after that.

95.  The costs payable by Lee to the Club on an indemnity basis will also be summarily assessed.

F.  Result of Determinations

96.  All of Lee’s applications are dismissed.

97.  We make a further order under Order 59 rule 2A(8) that no party may, under rule 2A(7), request the determination to be reconsidered at an oral hearing, as the applications were without merit.

98.  We order that Lee pay the Club’s costs of both CAMP 329/2023 and CAMP 358/2023, on an indemnity basis to be summarily assessed.

99.  Lee shall file his List of Objections, if any, to the Revised Statement of Costs lodged by the Club, in respect of both CAMP 329/2023 and 358/2023, on or before 4 September 2026.  Thereafter, the Court will summarily assess the Club’s costs to be paid by Lee.