RE CHOY BING WING

HCB 12343/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGSNO 12343 OF 2009

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I.  INTRODUCTION

1.  On 14 March 2014, I handed down my Decision dismissing the appeal by Choy Bing Wing being the judgment debtor (“Choy”) against the order of Master H Au-Yeung dated 5 December 2013 (“Au-Yeung Order”) (“Decision”). For the sake of convenience, I shall adopt the abbreviations in the Decision.

2.  By a summons dated 14 March 2013 (“Leave Summons”), Choy sought leave to appeal against the Decision and for an order that costs of and incidental to the application be paid by the Director being the judgment creditor. The Leave Summons was returnable before me on 3 April 2014 (“Leave Hearing”).

II. LEGAL PRINCIPLES

3.  The order by this court made pursuant to Decision is an interlocutory order, and it is incumbent upon Choy to persuade this court to grant leave to appeal. Under section 14AA of the HCO, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. In SMSE v KL,[1] Le Pichon JA pointed out that such leave to appeal is not lightly granted.  The test of reasonable prospects of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful without having to be probable.  As the leave requirement was introduced largely to address satellite litigation, so for the court to be satisfied that the appeal does have “reasonable prospects of success”, merely showing that the appeal is “arguable” and “not fanciful” would not be sufficient.[2]  Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion.[3]

III. GROUNDS OF APPLICATION

4.  Choy set out the grounds for his application for leave to appeal against the Decision in the Leave Summons as follows:

“1. Important questions on points of law are involved:

(a) Whether it is an abuse of the legal system by the judge to turn a blind eye to the court instrument, pointed out to him/her, of the judicial notice declaring the settlement of the case under the Bankruptcy Ordinance Cap 6, for no further action actionable after the withdrawal.

(b) Whether it is the duty of the judge to apply the law to the issues of law and fact submitted therein to be adjudicated in a “Judgment” by the judge.

(c) Whether it is the deception committed by the judge to make a “Decision” which may only be for the issue of facts under the law for turning blind eye to the issue of the law of jurisdiction to a case for the fact that it had already been withdrawn.

(d) Whether it is the duty of the judge to order the release of transcript and tape required for appeal refused by the courts below.

(e) Whether it is the duty for a judge as a fundamental starting point to address or to distinguish the improper invocation of 2 modes of the statutes within the same set of proceedings (Cap.4 & Cap.6) i.e. to deal with the point of Jurisdiction forthwith in his omission of the litigant’s submission of such in particular the withdrawal of the case under Cap.6.

2. Public interest and justice require Leave be granted to the defendant.”

5.  On 1 April 2014, Choy lodged his written submissions as follows:

“ It is clear that you have deceived [Choy] in collusion with MBJSM, by failing your duty under Article 83 of the Basic Law for no law administered/applied in your “Decision”.

2. Choy’s submissions of the law of jurisdiction for the withdrawal judicially noticed by McMahon/Macrae in HCMP1313/2010 and declared on 11/2/2011 was ignored by you, M. Ng DJHC. I must request you M. Ng to answer the charges in your collusions with MBJSM to cheat [Choy] against you in Choy’s letter dated 19/3/2014 and 31/3/2014 copy each enclosed and referred.”

Choy’s letters dated 19 and 31 March 2014 reiterated similar arguments in the same vein.

6.  On 31 March 2014, the Directors’ solicitors lodged their written submissions and statement of costs.

IV. CHOY’S ABSENCE FROM PART OF THE HEARING

7.  At the beginning of the Leave Hearing, I invited Choy to make oral submissions in support of the Leave Summons.  Without making submissions or speech in support of the Leave Summons, he requested that the official tape recording of the Leave Hearing be released to him.  I asked Choy whether he wished to rely on his written submissions dated 1 April 2014.  Choy said there was no need for him to make any submissions at all because in the Decision I failed to address the point of jurisdiction he raised at the Hearing on 12 March 2014.   Choy also complained of my collusion with the Director’s solicitors to cheat him.  On that note, Choy left the courtroom out of his own accord and did not return even up to the end of the Leave Hearing.

8.  I do not see why the Hearing should not proceed as a result of Choy’s voluntary departure from the courtroom.  The Leave Hearing therefore continued in Choy’s absence.  Mr Boyle, solicitor for the Director, did not make any oral submissions in respect of the Leave Summons, but urged the court to award costs to be summarily assessed in favour of the Director if the court were minded to dismiss the Leave Summons.  At the end of the Leave Hearing, I reserved my decision to be handed down which I now do.

V. DISCUSSION

9.  Having carefully considered Choy’s grounds of application and his written submissions, I am unable to discern any intended ground of appeal that has reasonable prospect of success.

10.  Insofar as Choy complained that (a) the Director could not enforce the Costs Orders by way of Charging Order Absolute after the withdrawal of the Petition and (b) there could not be conflation of the statutory regime under the HCO/RHC and the BO in the present proceedings with the result that Master H Au-Yeung had no jurisdiction to grant the Au-Yeung Order and this court had no jurisdiction to affirm such order by the Decision, such complaint is essentially a repetition of the arguments Choy raised in his written submissions for and his oral speech at the Hearing.[4]  He also alluded to such arguments in his 6^th, 8^th and 9^th affirmations.[5]  Choy had drawn my attention to (and I did particularly consider) the order for committal by McMahon J and Macrae J dated 11 February 2011 in HCMP 1313/2010.[6]

11.  In paragraphs 43-47 of the Decision, I particularly dealt with the issue of whether the court had jurisdiction to grant the Costs Orders in the present proceedings when the Petition was withdrawn and no bankruptcy order was made against Choy.  In paragraphs 48-56 of the Decision, I particularly dealt with the question of whether the Director was entitled to seek recovery of the outstanding Awarded Costs by enforcing the Costs Orders by way of the Charging Order Nisi/Absolute under Order 50 of the RHC.  I am unable to see how it can be said that this court has ignored or turned a blind eye to the “jurisdiction issue”.

12.  Choy claimed that this court had failed in its duty under article 83 of the Basic Law “for no law administered/applied in your “Decision”.” I reiterate the discussion in paragraphs 10-11 above.  Further, I am of the view that article 83 of the Basic Law [7] has no relevance to the present application.

13.  Choy suggested it was procedurally wrong for this court to hand down a “decision” and not a “judgment”.  I am unable to see any sufficient basis for appeal that has reasonable prospect of success on this ground.  The Decision is a decision of this court in respect of an interlocutory matter.  It is not a final judgment made after trial, but is nevertheless a formal decision by this court that is determinative of the appeal against the Au-Yeung Order.

14.  Choy further argued this court should have ordered the release of transcript and tape recording of the Master Hearing for the purpose of the Appeal.  However, as explained in paragraph 8 of the Decision, an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. Transcript and tape recording of the Master Hearing are therefore unnecessary for the purpose of the Appeal.  This does not amount to any sound basis for appeal that has reasonable prospect of success.

15.  The other matters raised in paragraph 1 of the Leave Summons and in Choy’s written submissions are scandalous.  Having reviewed Choy’s intended grounds of application which I have set out in paragraphs 4-5 above, I consider that none of them has any reasonable prospect of success.

16.  Lastly, for the reasons set out above and in view of the discussion/conclusion in the Decision, I find that Choy has failed to demonstrate the existence of “some other reason in the interests of justice why the appeal should be heard”. Leave to appeal is therefore refused.

VI.  CONCLUSION

17.  I therefore order that the Leave Summons be dismissed. There is no reason why costs should not follow event, and Mr Boyle had lodged/served the Director’s statement of costs with his written submissions. In my view, there was no need for the Director’s solicitors to lodge another hearing bundle when the previous hearing bundle could have been used and, where appropriate, updated.  Further, the issues raised in the leave application fall within a small compass.  I therefore grant a costs order nisi that costs of and occasioned by the Leave Summons be paid by Choy to the Director summarily assessed at $15,000.

18.  I further do not see any sufficient justification for release of the official tape recording of the Leave Hearing to Choy, and his oral application for such is refused.  First, he attended the Leave Hearing but chose to absent himself in the course of it.  Secondly, after Choy absented himself, Mr Boyle did not make any oral submissions in respect the Leave Summons except to ask for costs, and this court reserved its decision to be handed down.  The Leave Hearing lasted for a few minutes. Thirdly, by this Decision I dismiss the Leave Summons and decline to grant leave to appeal. Choy is entitled, if he wishes, to renew his application for leave to appeal to the Court of Appeal pursuant to the rules of court.  That being the case, the official tape recording of the Leave Hearing is unnecessary for any further pursuit of Choy’s intended appeal.