TSUI KIN CHUNG v. THE REGISTRAR OF THE COURT OF FINAL APPEAL AND ANOTHER

CACV 188/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2016

(ON APPEAL FROM HCAL NO 121 of 2016)

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J U D G M E N T

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

1.  This appeal was brought to the attention of this Court because of the Applicant’s disagreement with the directions of the master in the preparation of appeal bundles. He lodged an appeal on 18 October 2016 against the directions given by the master on 26 September 2016. He also applied for the filing of fresh evidence on 24 October 2016. The fresh evidence was the decision of the Appeal Committee in FAMV 21 of 2016. Based on the materials filed by the Applicant, he wished to rely on the decision of the Appeal Committee in The Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd FAMV 21 of 2016, 19 August 2016 to support his appeal. That was a decision of the Appeal Committee giving leave to appeal to the Court of Final Appeal in which the constitutionality of the finality provision of Section 63B of the District Court Ordinance will be examined.

2.  In the present case, the subject decision under challenged is the decision of the Registrar of the Court of Final Appeal by reference to the finality provision in Section 14AB of the High Court Ordinance.

3.  We accept that the determination of the appeal in Sam Woo Marine Works would probably be relevant for the present appeal.  It is not necessary for the leave decision of the Appeal Committee to be put before us by way of additional evidence as it is not evidence as such. Rather the constitutionality of the finality provision is a question of law.  We refuse the application by summons issued on 24 October 2016 to adduce new evidence.

4.  We understand that the Court of Final Appeal shall hear the appeal in Sam Woo Marine Works around March or April next year.  Until the Court of Final Appeal decides otherwise, the existing decisions of the Court of Appeal in Sam Woo Marine Works [2016] 2 HKLR 1068 and Hong Kong Housing Society v Wong Nai Chung HCMP 880 of 2009, 22 September 2010 remain binding and the Applicant is bound by the finality provision of Section 14AB of the High Court Ordinance.

5.  In light of the fact that Sam Woo Marine Works shall be heard in not too distant future, and it is a point which the Appeal Committee deemed fit to grant leave, we are minded to consider staying this appeal pending the judgment of the Court of Final Appeal in that case.  A hearing was fixed for consideration of that course.

6.  The Applicant objected to such a course and set out his reasons in his fax of 30 October 2016.  He further indicated in another fax of 1 November 2016 that he would not attend the hearing of 8 November 2016.

7.  In the recent judgment of this Court in AXA China Region Insurance Co Ltd v Leong Fong Cheng CACV 113 of 2016, 28 October 2016, at [43] to [55], it was explained that the Court does not regard the faxing of letters to court by litigants or solicitors as proper substitution for the filing of documents.  If the Applicant wishes to make any submissions on the proposed course, he should attend the hearing to advance his objections.  If he wishes to put in written submissions in advance, he should file the hard copies of the written submissions at the Registry in the usual manner.

8.  Be that as it may, as he might be ignorant of the proper practice, we shall grant him the indulgence of treating his fax of 30 October 2016 as his submissions notwithstanding his failure to attend at the hearing on 8 November 2016 without proper explanation for his absence.

9.  However, we must point out that the indulgence granted on this occasion does not mean that he could continue with his practice of faxing letters to courts.  Now that he has been informed, he could not expect the courts to pay heed to his faxed letters in the future.

10.  Turning to his objections to the stay of the appeal, the basic argument was that he intends to appeal from the decision of this Court and it should be a matter for the Appeal Committee to consider consolidating this intended appeal with the appeal in Sam Woo Marine Works. He also submitted that he wishes to raise arguments on ultra vires other than those pertaining to the finality issue.

11.  That line of argument is fallacious because the present appeal has yet to be heard.  There were disagreements between the Applicant and the Master on appeal bundles.  In light of the Applicant’s indication that he would also rely on grounds other than the finality provision, and his allegation that the Registrar was acting not in good faith and out of revenge against him, we do not accept it is sufficient for him to include only the 2 letters from the Registrar in the appeal bundle.

12.  Whether it is necessary to include all the documents as directed by the master or to exclude some items, and what would be the consequence if he persistently refuses to comply with directions from the master are not matters which we shall resolve in this judgment.

13.  But it is clear to us that the appeal is not ready for hearing and a date has yet to be fixed.  Given the state of the diary of this Court, it is unlikely that this appeal can be heard within this year (even assuming the disagreements on appeal bundle can be resolved within next month or so).  The fact that the Applicant wishes to take a point similar to the one advanced in Sam Woo Marine Works is not a ground for expediting his appeal.

14.  Further, in light of the appeal in Sam Woo Marine Works, this Court will probably wait for the handing down of the judgment in that case before we give our decision in this appeal. 

15.  At paragraph 32 of his Notice of Appeal, the Applicant said he felt exhausted to deal with complicated legal proceedings.  Due to his lack of legal representation, he invited the Court to appoint an amicus in the appeal.

16.  We are not minded to accede to such request. We cannot see any reason why at this stage there should be another round of argument on the finality issue before us when the Court of Final Appeal is going to rule on the same. The appellant in Sam Woo Marine Works is legally represented by Senior Counsel.  There is every reason for believing that all pertinent points on the finality issue would be duly addressed in that appeal.

17.  In any event, the Applicant would not be prejudiced because this Court would give him adequate opportunity to address us on the judgment of the Court of Final Appeal before we dispose of this appeal. 

18.  In our judgment, there is good reason why this appeal should not be determined before the outcome of the appeal by the Court of Final Appeal in Sam Woo Marine Works is known.  It is likely that the question on finality would then be settled and the Applicant could further reflect on the present appeal in light of such determination.

19.  We therefore order that the appeal be stayed pending the determination of the Court of Final Appeal in Sam Woo Marine Works. The applicant is at liberty to restore the appeal within 14 days of the handing down of the judgment by the Court of Final Appeal.