SECRETARY FOR JUSTICE v. CHOY BING WING

AND

HCMP 129/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2007

________________________

BETWEEN

AND

CACV 11/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 11 of 2004

(on appeal from HCMP NO. 4694 of 2003)

________________________

 BETWEEN

 AND

CACV 193/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 193 of 2005

(on appeal from HCMP NO. 129 OF 2007)

________________________

BETWEEN

(Heard Together)

________________________

D E C I S I O N

________________________

Hon Le Pichon JA:

1.  This is an application by Choy Bing Wing (“the applicant”) for leave to appeal the judgment/order of Deputy High Court Judge Carlson dated 22 January 2010.  The matter before the judge were appeals from 2 charging orders nisi made by Master B Kwan on 16 July 2008 and 2 charging orders nisi made by Master de Souza on 27 August 2008.

2.  The applications for the charging orders nisi were based on unpaid costs orders made in favour of the judgment creditor (the respondent to this application) made in HCMP 4694/2003, HCMP 129/2009, CACV 11/2004 and CACV 193/2005 which costs have been taxed and allocaturs issued in respect of such costs.

3.  It is clear from the charging orders nisi that the applicant had to show cause why the charging orders should not be made absolute.

4.  On 8 October 2009, the judge’s clerk wrote to the applicant.  Inter alia, the letter directed the applicant’s attention to the applicable principles stated in Order 50/9A/23 of the Rules of the High Court and to section 20(3) of the High Court Ordinance.  The last paragraph of (12) explained that

“…on an application for a charging order to be made absolute the court is concerned with execution of an order of the court.  It is not and will not allow a judgment debtor, Mr Choy in this instance, to re-open matters which led to the making of the orders, which in this case also resulted in the making of orders for costs against him.”

5.  On 22 January 2010 the judge heard the judgment creditor’s application that the charging orders be made absolute.  From the evidence filed by the applicant for the hearing below, it is clear that the evidence was directed at reopening matters that led to the making of the orders.  At the conclusion of the hearing, the judge exercised his discretion and made the charging orders absolute.

6.  On 16 March 2010, the judge refused the applicant leave to appeal from his order.

7.  By summons dated 27 March 2010 the applicant applied for leave to appeal.  The grounds were set out in the statement filed pursuant to O.59 r.2A(1) of the Rules of the High Court.  In the supporting affirmation filed on 27 March 2010, the applicant exhibited his seventh affirmation made in HCMP 4694/2003 which was his substantive affirmation for showing cause below.

8.  Thus, the papers filed in support of his application for leave from this court were largely directed at reopening matters that led to the making of the orders which resulted in the making of the costs orders against him.  They do not set out any substantive ground to show that the judge had erred in the exercise of his discretion.  It is also to be noted that although the applicant is a litigant in person, his attention was drawn to the applicable legal principles governing the making of charging orders absolute.  In my view, any appeal in this matter would be quite futile.

9.  In the circumstances, I would refuse this application for leave to appeal.  It is so devoid of merit that I would also make an order under O.59 r.2A(8) that the applicant may not request that this determination be reconsidered at an oral hearing inter partes.

Hon Kwan JA:

10.  I agree with the decision of Le Pichon JA.

Hon Le Pichon JA:

11.  Accordingly, there will be an order in terms of § 9 above.