WONG YU CHO ROLLY t/a MARCO POLO AND CHINA OVERSEA TECHNICAL DEVELOPMENT v. HO CHI SUM AND ANOTHER

HCA2132/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2132 OF 2005

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J U D G M E N T

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1. This is an appeal brought by the plaintiff against Master Ko’s Order dated 31 July 2009.  Master Ko dismissed the application in the plaintiff’s summons of 30 June 2009 with costs of $2,000 payable to the defendants.

2. The plaintiff’s summons dated on 30 June 2009 was handwritten and not very legible.  The summons is in two parts.  The first part is to “Apply for stay of proceeding [sic]” while the second part is to “adjourn the allocation (Bill No. 1)”.  He finds his support from the case Ling Yuk Sing v Secretary for the Civil Services & Ors (unreported, CACV117/2008), an appeal that is scheduled to be heard on 11 June 2010 in the Court of Appeal.

3. The words “stay of proceeding” call for explanation.  It is useful to note that Mr Wong is the plaintiff here, so the “stay of proceeding” could not mean a stay of the current action.  The only plausible conclusion is that “stay of proceedings” refers to another action not connected with this one.

4. For the 30 June 2009 summons, the plaintiff made an affirmation dated 21 February 2007 (or 21 February 2009, as the content tends to suggest) to clarify his arguments.  I found that the affirmation made by the plaintiff on 13 August 2009 to be quite similar to that affirmation.  I would therefore reproduce the plaintiff’s argument as evidenced by the printed affirmation on 13 August 2009 instead of using the 21 February 2007 (2009) version, which was written by hand.

5. This would also demonstrate that the plaintiff’s contentions are sometimes confused and unintelligible.  I do not venture to correct the mistakes and typos in the affirmation as it will complicate the unintelligible affirmation further :

“…I enclose a copy order made by before Mr. Registrar C. Chan in chambers date of hearing 25^th March 2009 Exhibit No.1 when Department of Justice represents the Government Department.  The Government department (Inland Revenue Department) never pays for the services and charge from to Depart of Justice.  Tax players pay taxes to the Government and the Government pay the salary for the solicitor on counsel and the staff of Department of Justice.  If Department of Justice charges the Plaintiff, it is Double – Charge because the government has already paid.  It has a argument point.  That was Mr. Registrar C. Chan stay and adjourn the case (HCMP 1394 of 2007 Bill).

Similarly with the case, the police cannot charge the cost of time and any proceedings of the case when it finished from the subject because the police are paid by the government.

As a circumfluence, this case is related to the case of CACV 117 of 2009 by Mr. Registrar C. Chan in chambers as a reference date 25^th March 2009 (HCMP 1394 of 2007).  The applicant is Ling Yuk Sing in CACV 117 of 2008 and Respondents are the Secretary for the Civil Service and Permant Secretary for transport and housing (Housing).  The applicant Ling Yuk Sing has currently appealed that the Government Department never pays any cost and the charges to the Department of the Justice.  Because the Department of Justice represents two respondents.  I reckon that CACV 117 of 2008 has great conslitational importance on the issue whether Department of Justice should be entitled to costs as the case between private litigants.  Please take note that I do not intend to pay Department of Justice costs despite the allocation (Bill).  The final outcome judgment of the said case CACV 117 of 2008.  Mr. Registrar C. Chan had an order in the Court stay of proceeding until CACV 117 of 2008 has a new judgment and order, then will make the decision and re-open the hearing in the Court from HCMP 1394 of 2007.

Now, I sincerely hope the Honourable Justice stay the proceeding until the final determination of CACV 117 of 2008 namely the lawfulness or constitutionality of double charges on the Department of Justice (as order by Master C. Chan on 1^st June 2008 – HCMP 1394 of 2007) until the case of CACV 117 of 2008 is re-opened.”

6. At page 53 of the hearing bundle, in the letter by Ms Shirley Lau, Clerk to Hon Cheung JA for Registrar, High Court, with the title “Civil Appeal No. CACV 117 of 2009”, it was found that “The Court would invite submissions on the principles justifying Government lawyers charging the same rate as lawyers in private practice for the purpose of taxation.”  This appears to be the only issue in the upcoming appeal.

7. From the quoted parts of the 13 August 2009 affirmation above, the plaintiff sought to use the CACV117/2008 case in his argument, but he did not inform this Court how that case is related to the present case.  The CACV117/2008 case is, I think, primarily concerned with the quantum of costs which Government lawyers can charge.  It does not help the plaintiff’s argument on “Double Charge”.  In any event I cannot see how a dispute of costs can lead to a stay of proceedings.

8. The plaintiff also relied on the order by Master C. Chan on 1 June 2009 (HCMP1394/2007).  The order reads :

“I adjourn the taxation of Bill No. 1 in this Case to a date to be fixed with 3.5 hrs reserved but on a date not earlier than delivery by the Civil appeal of the decision of the case knows as Ling Ying-Sing v Secretary for the Civil Service (CACV No. 117 of 2008) on point of law relating to taxation of the bill therein.

2.    Costs of today be in the cause of the taxation.” [emphasis supplied]

9. It is apparent that the learned Master was perfectly correct to stay that proceedings pending the outcome of the CACV117/2008 case, because this outcome will materially affect the judgment of the learned Master.

10. The same cannot be said of the present case.  I agree with Mr Newton Chan, Government Counsel for the defendants that what the plaintiff is attempting to do is an abuse of process.  The plaintiff cannot stay the proceedings of another case using the case of HCMP1394/2007 before Master C. Chan, a case that has not the slightest relevance to the present case.  There was also no evidence that shows the learned Master was wrong in awarding $2,000 costs to the defendants.

11. I would therefore uphold Master Ko’s decision and dismiss the plaintiff’s appeal.  The defendants shall have costs in this appeal, to be taxed if not agreed.