CHOY BING WING v. DIRECTOR OF HOUSING DEPARTMENT OF THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

HCMP 959/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 959 OF 2014

(ON AN INTENDED APPEAL FROM HCB NO. 12343 OF 2009)

________________________

________________________

________________________

Hon Barma JA (giving the Decision of the Court):

1.  This is an application by Mr Choy Bing Wing (“Mr Choy”) for leave to appeal against the Decision of Deputy High Court Judge Marlene Ng dated 14 March 2014, by which the Deputy Judge dismissed Mr Choy’s appeal against the charging order absolute granted in favour of the Director of Housing (“the Director) by Master H Au-Yeung on 5 December 2013. Mr Choy’s application to the Deputy Judge for leave to appeal was dismissed by her on 4 April 2014, and he now applies, by his summons dated 16 April 2014, to this court for leave to appeal.

2.  The background to the proceedings is fully set out in the Decision of the Deputy Judge dated 14 March 2014.  In brief, as a result of Mr Choy’s failure to satisfy three costs orders made against him in HCB 12343/2009, the Director sought a charging order over two properties owned by Mr Choy.  On 5 December 2013, Master H Au-Yeung (having refused to recuse himself from the hearing) made a charging order absolute over one of those properties.  By her Decision of 14 March 2014, the Deputy Judge dismissed Mr Choy’s appeal against the order made by Master H Au-Yeung, for the reasons comprehensively explained in that Decision.

3.  Mr Choy has raised the following grounds of appeal, which he contends have reasonable prospects of success:-

“1. Judicial remedies to CA for the points of law involved and left out unresolved due to the collusions of the court below are:-

(a) Whether it is an abuse of the legal system by the judge to turn 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 and 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 Debtor.”

4.  Mr Choy’s application is opposed by the Director, who submits that the proposed appeal is totally without merit.

5.  With respect to Mr Choy, we are firmly of the view that the proposed appeal has no prospects of success, and is properly to be characterised as being “totally without merit”.

6.  The allegations in proposed grounds 1(a) and (c) are couched in terms that are scandalous and offensive.  Be that as it may, it is clear from the Deputy Judge’s Decision below that contrary to the suggestion in ground 1(a), she had paid careful regard to all of the material placed before her by Mr Choy for the purposes of his appeal against the order of Master H Au-Yeung.  Further, so far as ground 1(c) is concerned, it is also clear that the Deputy Judge considered and dealt with the jurisdiction issue raised by Mr Choy at paragraphs 43 to 47 of her Decision of 14 March 2014.  In our view, the reasons she gave there for rejecting Mr Choy’s contentions as to the jurisdiction issue were entirely correct.  Insofar as ground 1(c) seeks to suggest that it was somehow wrong for the Deputy Judge to have dealt with the appeal before her by handing down a “Decision” rather than a “Judgment”, there is nothing in this point – both Decisions and Judgments are reasoned decisions of the court disposing of the particular before it, and both are equally valid dispositions of the matter.

7.  Ground 1(b) is wholly lacking in any foundation.  It is clear from her Decision of 14 March 2014 that the Deputy Judge carefully considered and applied the relevant law to the questions which were placed before her for determination.

8.  Ground 1(d) takes the matter no further – as the Deputy Judge pointed out, the hearing before her was an appeal by way of complete rehearing.  As such, a transcript of the proceedings before the Master was not necessary for the purposes of that appeal.

9.  Ground 1(e) is no more than a further repetition of the jurisdiction point, which the Deputy Judge correctly disposed of in paragraphs 43 to 47 of her Decision.

10.  Finally, ground 2 adds nothing of substance to the proposed appeal.

11.  For all of the foregoing reasons, we are satisfied that the proposed appeal is totally without merit.  Accordingly, we dismiss the application for leave to appeal, and direct pursuant to RHC Order 59 rule 2A(8) that no party may request that the application be reconsidered at an oral hearing.

12.  We also make an order nisi that the costs of this application are to be paid by Mr Choy to the Director.  So far as the amount of such costs are concerned, these will be assessed on a gross sum basis.  As the Director has already lodged a statement of his costs with his skeleton submissions for this application, we shall direct that Mr Choy should lodge any submissions that he may wish to make in relation to the quantum of such costs within 14 days of this judgment being handed down, and that the Director should lodge any submissions in response within 7 days thereafter.