LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

HCAL 1016/2017

[2020] HKCFI 2377

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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D E C I S I O N

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INTRODUCTION

1.  There are two applications before the court:

(1)  the Applicant’s application to (i) strike out and dismiss the Electoral Affairs Commission (“the EAC”)’s bill of costs and notice of commencement of taxation, and (ii) set aside an order for costs made by this court on 9 February 2018; and

(2)  the Application’s application to adjourn the hearing of the above application sine die with liberty to restore.

BACKGROUND FACTS

2.  On 9 February 2018, the court dismissed the Applicant’s applications for (i) leave to apply for judicial review, and (ii) interim relief, and made an order that the Applicant should pay the costs of the EAC incurred in resisting the applications, to be taxed if not agreed (“the Costs Order”).

3.  On 15 February 2018, the court dismissed the Applicant’s summons dated 12 February 2018 seeking, inter alia, (i) a variation or discharge of the Costs Order, and (ii) an order that there be no order as to the costs of the proceedings.

4.  On 21 February 2018, the Costs Order was sealed.

5.  On 23 August 2018, the Applicant’s appeal against the aforesaid orders dated 9 February 2018 and 15 February 2018 was dismissed by the Court of Appeal pursuant an Unless Order made by that court on 17 August 2018 in CACV 47/2018 (“the Unless Order”).

6.  On 10 December 2018, the Court of Appeal dismissed the Applicant’s summons dated 4 September 2018 seeking relief from sanction flowing from her failure to comply with the Unless Order, with costs to the EAC (“the CA Judgment”).

7.  On 18 March 2019, the Court of Appeal dismissed the Applicant’s application for leave to appeal the CA Judgment to the Court of Final Appeal, with costs to the EAC.

8.  On 26 September 2019, the Appeal Committee of the Court of Final Appeal dismissed the Applicant’s renewed application for leave to appeal the CA Judgment in FAMV 102/2019.

9.  Commencing on 29 January 2020, the High Court Registry was closed due to public health considerations arising from the outbreak of COVID-19 in Hong Kong.

10.  On 3 February 2020, the Department of Justice served on the Applicant a letter enclosing a bill of costs (“the Bill”) and a draft Notice of Commencement of Taxation (“the Draft Notice”), by leaving the same at the Applicant’s address.  On the same day, the Department of Justice issued a letter to the Court enclosing the Bill and the Draft Notice.

11.  On 9 March 2020, (i) the High Court Registry re-opened, and (ii) the Department of Justice filed the Bill and a Notice of Commencement of Taxation (“the Notice”).

12.  On 10 March 2020, the Department of Justice served the Bill and Notice on the Applicant by ordinary post.

13.  On 7 May 2020:

(1)  The Department of Justice applied to set the Bill down for taxation (“the Application to Set a Bill Down for Taxation”). That application was fixed for a (no attendance required) hearing before Master J Wong on 23 June 2020.

(2)  The Applicant issued a summons (“the May Summons”) seeking to (i) strike out and dismiss the Bill and Notice, and (ii) set aside the Costs Order.

14.  On 12 May 2020, the court directed that the May Summons should be dealt with at an oral hearing, with 1 hour reserved.

15.  On 27 May 2020, the Department of Justice served a copy of the Application to Set a Bill Down for Taxation on the Applicant by ordinary post.

16.  On 22 June 2020:

(1)  the Applicant filed the May Summons again, and obtained the present hearing date of the May Summons; and

(2)  the Applicant sought leave to file a summons to vacate the hearing before Master J Wong scheduled for 23 June 2020 regarding the Application to Set a Bill Down for Taxation.  On the same day, Master J Wong refused to grant leave to the Applicant to file the summons.

17.  On 23 June 2020, Master J Wong made an order adjourning the proceedings for the taxation of the Bill sine die with liberty to restore after the court’s determination of the May Summons.

18.  On the same day (23 June 2020), the Applicant issued another summons seeking to vary or discharge Master J Wong’s directions given on 22 June 2020.

19.  On 17 July 2020, Master J Wong dismissed the Applicant’s summons dated 23 June 2020, with costs to the EAC.

20.  On 3 September 2020, the Applicant issued a summons (“the September Summons”) seeking to adjourn the hearing of the May Summons sine die with liberty to restore.

DISCUSSION

21.  In relation to the Applicant’s objection to the Bill and Notice, the Applicant argues that the proceedings for the taxation of the Bill were commenced out of time.  The relevant provisions of the Rules of the High Court, Cap 4A, state as follows:

(1)  Order 62, r 21:

“(1)  A party entitled to payment of the costs of any action to be taxed may commence proceedings for the taxation of those costs by filing in the Court -

(a) a notice of commencement of taxation; and

(b) his bill of costs.

(2)  The party shall serve a copy of the notice of commencement of taxation and of the bill of costs on every other party entitled to be heard on taxation within 7 days after the notice and the bill of costs were filed in the Court.”

(2)  Order 62, r 21A:

“(1) Upon compliance with the directions given by a taxing master under rule 13A relating to the steps to be taken or things to be done before the taxation is set down, the party who has commenced taxation proceedings under rule 21 may apply to the taxing master for setting down the taxation.

(2) The party shall, within 7 days after making an application under paragraph (1), serve a copy of the application on every other party entitled to be heard on taxation.”

(3)  order 62, r 22(7):

“A party is not entitled to commence taxation proceedings under rule 21 -

(a) after the expiry of 2 years from the completion date; or

(b) where the Court has extended the period specified in sub-paragraph (a), after the expiry of the period as extended,

whichever is the later.”

22.  In the present case:

(1)  The “completion date” for the purpose of Order 62, r 22(7) fell on 9 February 2018, being the date on which the Court of First Instance made the Costs Order (see Order 62, r 22(9)).

(2)  Subject to (4) and (5) below, the deadline for commencement of the taxation proceedings would fall on 8 February 2020.

(3)  However, the High Court Registry was closed between 29 January 2020 and 9 March 2020.

(4)  Section 71(1A) of the Interpretation and General Clauses Ordinance, Cap 1, states as follows -

“(1) In computing time for the purposes of any Ordinance -

(a) a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;

(b) if the last day of the period is a public holiday or a gale warning day or black rainstorm warning day the period shall include the next following day, not being a public holiday or a gale warning day or black rainstorm warning day;

(c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day is a public holiday or a gale warning day or black rainstorm warning day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next following day, not being a public holiday or a gale warning day or black rainstorm warning day;

(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, no public holiday, gale warning day or black rainstorm warning day shall be reckoned in the computation of that time.

(1A) However, if the computation mentioned in subsection (1) is in relation to the doing of an act or the taking of a proceeding at a court office, the following provisions apply to the computation to the exclusion of subsection (1)(b), (c) and (d) -

(a) if the act or proceeding is directed or allowed to be done or taken within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office”.

(5) Further, Order 3, r 4(1) of the Rules of the High Court states as follows -

“Where the time prescribed by these rules, or by any judgment, order or direction, for doing any act at an office of the Court expires on a specified day, and by reason thereof that act cannot be done on that day, the act shall be in time if done on the next day on which that office is open.”

Order 3, r 4(2)(e) goes on to define “specified day”, in relation to an office of the Court, to mean “another day on which the office is closed.”

(6) By virtue of s 71(1A)(a) of the Interpretation and General Clauses Ordinance and/or Order 3, r 4(1) of the Rules of the High Court, the deadline for commencement of the taxation proceedings fell on 9 March 2020.

(7) The Department of Justice filed the Bill and Notice on 9 March 2020.

(8) It follows that the taxation proceedings were commenced in time in the present case.

(9) In any event, even if the taxation proceedings were commenced out of time, I would be prepared to extend the time for the EAC to do so in view of the following matters: (i) the General Adjournment Period was imposed by the court due to public health considerations, (ii) the EAC has not been guilty of any unreasonable delay, (iii) the Department of Justice served copies of the Bill and Draft Notice on the Applicant on 3 February 2020, and (iv) the Applicant has not, so far as I can see, suffered any real prejudice arising from the delay which could not be compensated by an appropriate order as to costs.

23.  The Applicant argues that the Costs Order should be set aside because counsel for the EAC had, at the hearing on 2 February 2018, agreed that there should be no order as to the costs of the proceedings. There is no proper basis for the court to re-open the Costs Order, for the following reasons:

(1)  Costs are matters within the court’s discretion.  Generally speaking, the court is not bound by any agreement or concession of the parties in relation to the question of costs.  In any event, it is clear from counsel’s written submissions on behalf of the EAC dated 31 January 2020 that counsel never agreed that there should be no order as to costs.  All that counsel said at the hearing was that the usual order in an unsuccessful application for leave to apply for judicial review was no order as to costs.  The court was aware of this principle (see paragraph 19 of the court’s decision dated 9 February 2018).

(2)  The Costs Order made by the court on 9 February 2018 was a final order, and has been sealed.  While the Applicant may seek to challenge the Costs Order by way of an appeal (which she did unsuccessfully), she cannot apply to set aside the Costs Order in this court.

(3)  The Applicant has previously applied, unsuccessfully, to set aside the Costs Order (see paragraph 3 above).  The Applicant’s repeated application to set aside the Costs Order constitutes an abuse of the court’s process.

24.  In all, the Applicant’s application under the May Summons has no merits.

25.  The Applicant submits that the present hearing should be adjourned because there are outstanding proceedings or intended proceedings before the Court of Appeal and/or the European Court of Human Rights.  I do not see that those proceedings or intended proceedings are relevant to the Applicant’s application under the May Summons.  In any event, in view of the absence of merits of the May Summons, there would be no reason to adjourn the hearing of the application.

26.  In passing, I should mention that the Applicant has made some complaint about the service of Mr Wong’s skeleton submissions. It would appear, however, from the 2^nd Affidavit of Yip Hiu Fung filed on 3 September 2020 that Mr Wong’s skeleton submissions, his list of authorities and the Statement of Costs for Summary Assessment were all served on the Applicant by leaving at her address on 1 September 2020.  Further, Mr Wong has informed the court that the Applicant refused to accept another set of the documents on 3 and 7 September 2020 when she attended the office of the Department of Justice.  In the circumstances, I do not consider that there is any substance in the Applicant’s complaint regarding the service of Mr Wong’s skeleton submissions.

DISPOSITION

27.  The May and September Summonses are dismissed, with costs to the EAC.  The EAC’s costs are summarily assessed at HK$13,708.00.