LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

HCAL 1016/2017

[2020] HKCFI 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1016 OF 2017

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DECISION

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Introduction

1.  This is a summons issued by the applicant on 23 June 2020.  It sought:

(a)  to vary and discharge my directions on 22 June 2020 herein,

(b)  to restore her intended summons dated 22 June 2020, and

(c)  there be no order as to costs.   

Background

2.  Very briefly, on 6 December 2017, the applicant commenced the present proceedings for leave to apply for judicial review against the decision of the Electoral Affairs Commission (“EAC’) regarding a by-election of vacant seats in the Legislative Council after disqualification of Mr Leung Chung Hang and Ms Yau Wai Ching.  The Hon Chow J later refused the leave application and granted costs to EAC.  

3.  The applicant took up the matter to the Court of Appeal in CACV 47/2018 but failed.  She further asked the Court of Final Appeal to help her.  By the order under r 7 (2) of the Hong Kong Court of Final Appeal Rules (Cap 484) in FAMV 102/2019, on 26 September 2019, the Appeal Committee dismissed the application on the ground that it disclosed no reasonable grounds with no order as to costs for the application for leave to appeal.  

4.  On 9 March 2020, Department of Justice (“DOJ”) acting for EAC, filed their bill after the re-opening of the High Court Registry from the General Adjourned Period.  

5.  The applicant then lodged a document with the Court asking for, inter alia, dismissal, striking out and/or stay of the bill.  On 20 March 2020, Master Lai directed that application by letter was not entertained and appropriate application should be made by the applicant.  

6.  Then, on 31 March 2020, the applicant came to the High Court Registry insisted on leaving a summons for striking out.  It was refused and returned to her by the directions of Master Dick Ho as, among others, no leave had been granted for issuance of summons during the Extended General Adjourned Period.   

7.  On 7 May 2020, DOJ applied to set down the bill for taxation.  On the same date, the applicant also issued a summons, for inter alia, striking out and dismissal of the said bill (conveniently called “striking out summons[1]”). It was then placed before the Hon Chow J who directed on 12 May 2020 that, among others, the same should be dealt with at an oral hearing, with 1 hour reserved.  Subsequently, on 22 June 2020, upon application by the applicant, and in the absence of DOJ, a hearing date was fixed to be heard by the learned Judge at 10:00 am on 9 September 2020 with 1 hour reserved. 

8.  In the meantime, regarding DOJ’s application for setting down the bill, the matter was fixed for a (no attendance be required) hearing at 11:00 am before me on 23 June 2020.  At about 5:20 pm, on 22 June 2020, the applicant sought to issue a summons.  It was referred to me.  Upon thought, I directed that: 

“The fact that your summons [dated 7 May 2020] has been fixed for argument before the Hon Chow J on 9 September 2020 at 10:00 a.m. with 1 hour reserved is noted. Regarding the bill filed by Department of Justice on 9 March 2020 herein, this court will make appropriate order/direction(s) as he deems fit at the scheduled time of 11:00 am tomorrow. Leave to issue the Intended Summons is hereby refused.”

9.  At the scheduled hearing on 23 June 2020, I received a bundle of documents (comprising of a copy of the present summons and 2 sets of submissions headed “GROUNDS TO SUPPORT THE SUMMONS…”).  Upon perusal of the same, I replied:  

“I have nothing to add apart from repeating my directions on 22 June 2020.”

     I further made an order that: 

“The bill is adjourned sine die with liberty to restore after determination of the Applicant’s Summons dated 7 May 2020.”

10.  Then, on the same day, the applicant issued the present summons returnable before me on 30 June 2020. 

11.  Having heard from the parties as scheduled, I adjourned it for a decision to be handed down.  Here it is.  

Preliminary issues

12.  The applicant raised 3 preliminary issues. 

(a)  The applicant asked if I had seen her 2 sets of submissions.  Upon checking, as confirmed at the hearing, I did receive and see her documents and no staff had tried to hide away her documents from the Court.  

(b)  The applicant also said that she had not received my directions/order on 22 and 23 June 2020. From the Court record, the applicant did write to the Court from time to time. With the rider that it is usually not appropriate for parties to communicate with the Court by letters, especially without reference to other parties, the applicant should have known that this Court would make reply by post.  Hence, if she chooses to communicate with the Court, burden rests squarely upon her to check the directions/order of the Court.  She cannot complain that she has not received a reply if it is only she herself fails to check the result especially when she practically asks the Court to make an immediate response.  

(c)  During the course of her submission, the applicant indicated that she wanted me to deal with her “striking out” application in substance right away, to save time and costs of the Hon Chow J.  However, I was unable to agree with her because it was too late as the matter had developed. 

(i) The applicant issued her striking out summons on 7 May 2020 before the Judge. 

(ii) The Judge later directed the striking out summons to be heard in substance before him.  

(iii) The applicant pursued the matter further by fixing the substantive hearing of the summons to be heard by the Judge on 9 September 2020. 

(iv) As discussed with the applicant at the hearing before me, she was on the driving seat as to how her “disagreement, objection, stay and/or striking out” against DOJ’s bill should be handled and put before the court.  With a pending summons to be heard by the Judge, it was not appropriate for her to persuade a Master to deal with the same application.  

(v) Last but not least, as aforesaid, on 23 June 2020, I also directed that the bill was to be adjourned sine die with liberty to restore after determination of the striking out summons.  

Ruling and reasons

13.  I now move to the summons before me.  Upon consideration, I am afraid that I have to dismiss the same as it is clearly a misconceived one.  The applicant has not cited any provision of law or rules to support her application.  Even though I will entertain it by way of the inherent jurisdiction of the High Court, it fails me as a matter of substance.  

(a)  My directions on 22 June 2020 are reasonable in the circumstances and in light of the development of the case.  The hearing on 23 June 2020 is a (no attendance be required) hearing, commonly known as hearing by paper disposal.  Given the fact that I was aware of the pending summons to be heard by the Judge on 9 September 2020, no further summons should be issued because it would only incur more time and costs unnecessarily for both parties and the court.  The applicant should have waited for the directions/order of the court to be issued on 23 June 2020. It was only a neutral order directing the bill to be adjourned for the time being and waiting for the result of the striking out application by the applicant herself.  She was not prejudiced in any aspect at all.  Hence, the directions should not be varied or set aside. 

(b)  In my view, the intended summons on 22 June 2020 should not be issued.  In this summons, it stated that: 

“(With consent from DOJ this morning by phone) Pursuant to direction of Hon Mr Judge A Chow dated 12 May 2020 and the date fix before Hon Mr Judge A Chow by listing officer on 9 Sept 2020 at 10:00 am. The appointment listed by Law officer of DOJ before Master J Wong on 23 June 2020 at 11:00 am be vacated”

(i) There was no evidence before me that the vacating of the hearing date on 23 June 2020 was “by consent”.  

(ii) There was no consent summons endorsed by DOJ and there was also no letter signed by DOJ before me showing such consent.  

(iii) The applicant could have issued the application much earlier and it only arrived at the door of the court very late, when the counter of the High Court Registry was about to close in about 10 minutes, leaving only a few working hours before the scheduled (no attendance be required) hearing on the next day. 

(iv) In any event, as aforesaid, on 23 June 2020, I did not made any direction or order against either the applicant or DOJ.  The restoration of the 22 June 2020 summons is academic and serves no purpose.  At the hearing, having asked the applicant as to what sort of prejudice she had suffered as a result of my directions on 23 June 2020, she was not able to come up with any answer. 

Costs

14.  Parties also took the opportunity to address me on the question of costs.  Mr Wong^[2] of DOJ prayed for summary assessment for $4,500. 

Perusal of document (20 min x $4,500)	1,500
Preparation for hearing (20 min X $4,500)	1,500
Hearing (20 min x $4,500)	1,500
	4,500

     The applicant disagreed and said that she had adopted a reasonable stance in her summons by asking for “No order as to cost”.  

15.  I take the view that there is no reason to depart from the general “costs follow event” principle.  The applicant took out the summons.  It was dismissed by the court.  She should therefore pay the costs of the other party.  No exception was made out.  The quantum prayed by Mr Wong is reasonable in the circumstances and I make no deduction of them. 

Further submissions from the applicant after hearing

16.  Before pronouncing my order, I note that the applicant, after the hearing on 30 June 2020 and before the handing down of the Decision herein, insisted on submitting 2 further documents to me.  

(a)  Letter of 3 July 2020 together with a copy of DVD, and

(b)  Letter of 6 July 2020, making further submissions as well as enclosing 2 copies of her striking summons.   

     I hereby make it clear that this court will not consider them.  They are not only improper course to take but also, in any event, do not add any substance to the case of the applicant. 

Order

17.  To conclude, I make the following order. 

(a)  The summons filed by the applicant on 23 June 2020 is dismissed.  

(b)  The applicant do pay forthwith the putative respondent costs of the summons and hearing on 30 June 2020, summarily assessed at $4,500.