COOMBER, PETER JOHN v. LAU YIN HA, EVA (EVA LAU) AND ANOTHER

CAMP 291/2023 and CAMP 292/2023, [2024] HKCA 440

On Appeal From [2023] HKDC 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 291 OF 2023

(ON AN INTENDED APPEAL FROM DCCJ NO 1956 OF 2022)

________________________

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 292 OF 2023

(ON AN INTENDED APPEAL FROM DCCJ 3416 OF 2022)

________________________

________________________

(Heard together)

________________________

J U D G M E N T

________________________

Hon Au JA (giving the Judgment of the Court):

A.  INTRODUCTION

1.  By way of two summonses filed on 22 August 2023 respectively under CAMP 291/2023 and CAMP 292/2023 (“Leave Summonses”), the plaintiff applied to this court for leave to appeal out of time, against the Orders of His Honour Judge Jonathan Wong (“the Judge”)  dated 22 May 2023 (“the Order”), in respect of DCCJ 1956/2022 (“DCCJ 1956”)  and DCCJ 3416/2022 (“DCCJ 3416”). By the Order, the Judge had, inter alia, struck out the Statements of Claim in each of the respective actions and dismissed both actions.  The Judge set out his reasons for making the Order in his written judgment of the same date ([2023] HKDC 694)  (“the Decision”).  As discussed further below, the plaintiff did not seek leave to appeal before the Judge prior to taking out the Leave Summonses.

2.  Subsequently, by way of another two summonses filed under both actions on 3 January 2024 (“Joinder and Wasted Costs Summonses”), the plaintiff applied for joinder of parties, specifically “all defendants in DCCJ 1956/2022, DCCJ 3416/2022, and DCCJ 1129/2023”, and a wasted costs order against the defendants in both DCCJ 1956 and DCCJ 3416, as well as the Department of Justice, “District Judge Jonathan WONG”, “Helen CHUNG – Judiciary Executive II (Appeals Registry)” and “Master HO Chi-yin, Andy – Registrar of Civil Appeals”.

3.  We will deal with all these summonses together.

4.  Having considered the papers and the submissions before us, we are satisfied that it is not necessary to hold an oral hearing and that it would be appropriate for us to exercise our discretion to deal with these applications on paper, pursuant to Order 59, rule 2A(5)  of the Rules of the High Court (“the RHC”).

5.  We are of the view that, for the reasons set out below, all four summonses should be dismissed, on the basis that (a)  the plaintiff failed to apply for leave to appeal before the Judge against the Decision, and (b)  even if this court was to consider the applications, leave to appeal should not be granted.

B.  BACKGROUND

6.  These proceedings have a long and chequered history. We refer to [1.1] - [1.5], [2.1] - [2.6] and [3.1] - [3.41] of the Decision, and [11] - [50] of the judgment in Coomber, Peter John v Rita Lau Ng Wai Lan (Chairman, Public Service Commission) [2023] 3 HKLRD 231 (per Coleman J)[1], where both judges had helpfully respectively set out the factual background, the procedural history, and the context in which the plaintiff instituted these proceedings (as well as two other sets of proceedings in the courts below), namely DCCJ 1956, DCCJ 3416, HCAL 922/2022 and DCCJ 1129/2023.  It is not necessary for us to repeat these details in full.

7.  We only wish to highlight the following:

(1)  On 18 August 2001, the plaintiff pleaded guilty and was subsequently convicted in DCCC 328/2001.[2]  He served his sentence thereafter.

(2)  Four years later, on 13 July 2005, the plaintiff filed an application for leave to appeal against conviction directly to the Court of Final Appeal (“CFA”)  (FAMC 56/2005).  This application was dismissed by the Appeal Committee under Rule 7(2)  of the Hong Kong Court of Final Appeal Rules (Cap 484A)  (“the CFA Rules”)  pursuant to the summons issued by the then Acting Registrar of CFA (“Rule 7 Order”).

(3)  Over the years, the plaintiff persisted in his pursuit of the appeal in the CFA.  The plaintiff made various attempts to file applications and requested a new FAMC number, but these were not entertained. Correspondence between the CFA and the plaintiff ensued, leading to the issuance of an Order by Tang PJ (as Tang NPJ then was)  on 2 August 2017.  This order directed the CFA Registry not to accept the plaintiff’s latest filing to appeal against the Registrar’s directions and not to assign an action number to the purported application.

(4)  On 14 August 2019, the plaintiff attempted to submit a Notice of Motion and two bundles purportedly in accordance with Rule 66 of the CFA Rules.  On 20 August 2019, Acting Registrar Wong (the defendant in DCCJ 1956 herein)  replied and reiterated that FAMC 56/2005 had already been dismissed by the Rule 7 Order.

(5)  On 2 August 2021, the plaintiff approached the Appeals Registry in the High Court with the intention to file two Notices of Application for leave to Appeal out of time against his criminal conviction in DCCC 328/2001.  The plaintiff’s application was referred to Master Pang, who then referred it to Macrae VP, who directed that, among other things, “...the case will not be listed for hearing.”

(6)  On 13 August 2021, Eva Lau (D1 in DCCJ 3416/2022 herein), acting as the clerk to Master Pang, issued a letter informing the plaintiff of Macrae VP’s directions.  Unfortunately, due to a clerical mistake, an incorrect case number “CACC 128/2020” was cited in the top left corner of the letter.  As Coleman J puts it eloquently, “[t]his unfortunate, but swiftly corrected, error has given free rein to the Applicant’s imagination to lead him to believe that there was in fact a CACC reference accorded to his papers, which was later superseded or countermanded.” (See Coomber, Peter John v Rita Lau Ng Wai Lan, supra, at [38])

(7)  On 24 August 2021, Eva Lau rectified the mistake and issued a revised letter with the same content but the correct reference.  Through letters dated 2 September 2021 and 6 October 2021, Eva Lau informed the plaintiff that his application would not be listed for hearing and reiterated that no criminal appeal number had been assigned.  On 6 October 2021, Eva Lau, acting on the instructions of Master Pang, issued another reply informing the plaintiff that no further action would be taken to present the case before the Court of Appeal.

(8)  Thereafter and until 2 March 2022, there were other exchanges in correspondence between the plaintiff and the court.

(9)  On 2 March 2022, the plaintiff faxed a letter to Registrar Kwang (at the High Court)  seeking confirmation that CACC 128/2021 had been assigned to the Form XI application.  An interim reply was issued by Sandy Cheung (D2 in DCCJ 3416/2022 herein)  on 15 March 2022.  Eventually on 28 March 2022, Sandy Cheung issued a letter to the plaintiff containing the reply by Registrar Kwang that no criminal appeal was ever assigned to the plaintiff’s Form XI application.

8.  We adopt the summary of the plaintiff’s case as set out in [1.4] of the Decision:

“1.4 In both actions, the plaintiff’s claims against the respective defendants, in so far as they are discernible, are premised on the tort of misfeasance in public office.

(1)  In DCCJ 1956/2022, the defendant is Mr Wong King Wah who was at all material times the Acting Registrar of the Court of Final Appeal (‘Acting Registrar Wong’). The gist of the complaint against Acting Registrar Wong is that between 14 August 2019 and 10 March 2022 he had prevented the plaintiff from making a Rule 66 application to the Court of Final Appeal to correct an abuse of process committed by another Acting Registrar in 2005.

(2)  In DCCJ 3416/2022, the defendants are Ms Lau Yin Ha Eva (‘Eva’)  and Ms Cheung Man Ying Sandy (‘Sandy’). At all material times, Eva was a judicial clerk of the Appeals Registry of the High Court and Sandy the Clerk to Registrar Kwang of the High Court.

(a)  The complaint against Eva, in gist, is that between 2 August and 6 October 2021 she had failed to follow the statutory procedure set out at section 83Y of the Criminal Procedure Ordinance Cap 221 (‘CPO’)  and Rule 42 of the Criminal Appeal Rules Cap 221A (‘CAR’).

(b)  The complaint against Sandy, in gist, is that between 2 and 28 March 2022 she had dishonestly denied that the case number CACC 128/2021 was assigned to an application made by the plaintiff and Mr Heard to the Court of Appeal in August 2021.

(c)  The alleged mischief on the part of Eva and Sandy, it is said, had prevented the plaintiff’s continuance of his application at the Court of Final Appeal to correct the abuse of process committed by the Acting Registrar in 2005 by way of a Rule 66 application.”

C.  LEAVE SUMMONSES

9.  As mentioned above, on 22 August 2023, the plaintiff took out the Leave Summonses, seeking leave to appeal against the Order.  Alongside, the plaintiff lodged its written submissions[3] on the same date.  However, no Draft Notice of Appeal was enclosed with the Leave Summonses, neither was there any affirmation in support.

10.  Regarding the plaintiff’s intended grounds of appeal, the plaintiff simply stated “Procedural impropriety and bias” without offering further details in the Leave Summonses.  We will proceed on the assumption that the particulars of the proposed grounds of appeal align with those outlined in the plaintiff’s written submissions.

C1.  Legal Principles

11.  Section 63(1)  of the District Court Ordinance (Cap 336)  (“the DCO”)  provides that an appeal can, with leave of a judge or the Court Appeal, be made from every judgment of a judge in any civil cause.  Pursuant to section 63(2), an appeal is subject to the Rules of the District Court (Cap 336H)  (“the RDC”).

12.  Section 63A of the DCO further provides that leave to appeal shall not be granted unless this 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.  The applicant bears the burden of satisfying this Court that his appeal has a reasonable prospect of success which means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable.  When the applicant seeks to challenge findings of facts made by the court below, unless he can show that the judge misunderstood the evidence, or failed to appreciate its effects, or overlooked some documentary or other indisputable evidence which should have compelled him to a different conclusion, this Court will not interfere with those findings of facts.

13.  Order 58, rule 2 of the RDC and Order 59 of the RHC govern matters regarding appeals to the Court of Appeal, including application for leave.  Relevantly, Order 58, rules 2(6)  of the RDC reads:

“(6)  In any case in which the Court of Appeal may so allow, any such application may be made direct to the Court of Appeal.”

14.  Order 59, rule 14(4)  of the RHC reads:

“(4)  Wherever under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below.” (emphasis added)

15.  In Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678 (per Lam VP (as Lam PJ then was)  and Barma JA), this court explained the need and the importance of the general rule that leave for appeal should first be made to the Court below:

“5. We should reiterate that in general a party intending to appeal against an interlocutory judgment or decision should apply to the lower court for leave to appeal before coming to this court. Further, this general rule should apply even in cases with some urgency. Though there can be cases with exceptional circumstances and extreme urgency which calls for the exercise of the power under O 58 r 2(6)  of the Rules of the District Court (Cap 336H)  (the equivalent of O 59 r 2B(4)  of the Rules of the High Court (Cap 4A)  )  by this court to permit an application to be made directly to this court, this must be confined to the very exceptional cases.”

16.  In other words, an application made directly to the Court of Appeal without first applying to the court below will only be allowed in “very exceptional cases” within the category of cases with “exceptional circumstances and extreme urgency”.

C2.  Discussion

C2.1  Whether there are exceptional circumstances to justify not seeking leave to appeal from the Judge first

17.  It cannot be disputed that (a)  leave to appeal was not first sought from the District Court below, and (b)  the plaintiff’s applications for leave are out of time.  In the plaintiff’s written submissions, he alleges that there exist “special circumstances”, citing paragraph 5 of Practice Directions 4.1, which supposedly have rendered it impossible or impracticable to apply to the lower court first.

18.  In this respect, we are informed by the defendants that the plaintiff had indeed previously filed applications for leave to appeal in the District Court on 2 June 2023, but the plaintiff did not proceed with those applications.[4]  Suffice to say, the Judge did not have the opportunity to consider the merits of the proposed grounds of appeal.

19.  We also take note that in the postscript of the Judge’s decision of the plaintiff’s application to vary the costs order nisi dated 28 November 2023, the Judge informed the plaintiff that he should produce a draft Notice of Appeal should the plaintiff intended to appeal against the Decision (paragraph 4.1 - 4.2 of [2023] HKDC 1673).

20.  We will begin by addressing whether there are any special circumstances that fall within the category of “exceptional circumstances and extreme urgency”, thereby making it impossible or impracticable for the plaintiff to make an application for leave before the Judge.

21.  All that was said by the plaintiff in his written submissions as to the “special circumstance” is this:

“28. [the plaintiff] believes any attempt to make application to [the Judge] by summons before him will be met with delays and unwarranted attempts at further procedural delays based on his bias towards DoJ.”

22.  However, these are bare assertions which are not supported by any particulars nor has the plaintiff have filed any evidence in support of them.  The court will not accept such cryptic, unsubstantiated and un-particularised bare assertions as proof of the existence of any exceptional circumstances.

23.  In the premises, the plaintiff has failed to show any exceptional circumstance to justify him not seeking leave to appeal from the Judge first before taking out the Leave Summons in this court.  This court has said before, in the absence of exceptional circumstances, that it will not entertain such applications when the plaintiff did not follow the correct procedure in terms of seeking leave from the Judge first.  As stated in Singh Arjun at [12]:

“12. Be that as it may, since our views above may not have been as generally appreciated as they should be, it was decided that we would entertain the present application. However, in the future, litigants and those advising them should be mindful of the approach of the Court in dealing with these applications. Unjustified attempts to sidestep the first-tier stage will not be entertained and this Court will dismiss an application which should be brought in the first instance to the court below. Any delay and costs occasioned by such attempts will have to be borne by the unsuccessful applicant. In such case, such applicant would also have to take the consequence of the delay, even if it means that he would suffer prejudice as a result of his self-generated delay in the application for leave to the court below or in other respects.” (emphasis added)

24.  The leave to appeal applications should be dismissed for this reason alone.

25.  In any event, for completeness, we will briefly consider whether there are merits in his intended grounds of appeal to justify granting him leave to appeal if we were to consider the leave to appeal applications ourselves.

C2.2. Merits of the intend grounds of appeal

26.  The Decision was handed down on 22 May 2023 and the Leave Summons was taken out three months afterwards on 22 August 2023.

27.  Pursuant to Order 58, rules 2(4)(b)  and 2(4A)  of the RDC, an application for leave should have been made to a judge (district judge)  within 28 days from the date of judgment, and to the Court of Appeal within 14 days from the date of refusal by the judge.  The rule did not specify a time limit to make an application directly to the Court of Appeal as it is limited to occasions where there is “special circumstances which make it impossible or impracticable to apply to the court below”.  In our view, such application (if justified)  should be made as early as possible and in any event within 28 days from the judgment.  As the plaintiff fairly accepts, these are applications for leave out of time.

28.  The legal principles applicable to an application for extension of time to appeal are well established.  In Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015; 21 May 2015)  at [19], Kwan JA (as Kwan VP then was)  stated:

“19. The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success. In other words, he would need to demonstrate a strongly arguable case (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anr [2001] 1 HKC 125 at 127D to 128D, 132F; KNM v HTF, HCMP 288/2011, 7 September 2011, §§2, 19, 20; YN v NA [2014] 5 HKC 49 at §§16, 17).” (emphasis added)

29.  For the present purposes, we would focus on the merits of the intended appeal.  As mentioned above, the plaintiff has raised two intended grounds of appeal in his written submissions, namely procedural impropriety and bias.  We will consider them in turn.

C2.2.1  Procedural impropriety

30.  On procedural impropriety, the plaintiff submits that:

“22. Despite being permitted to make representations at hearings before His Honour Judge Jonathan WONG (‘HHJJW’), His Honour failed to accept or take into consideration legal precedents and dishonesty by DoJ. who are representing the defendants.”

31.  Once again, these are bare assertions only.  The plaintiff has failed to identify with particulars as to the specific instances where the Judge allegedly failed to accept or take into consideration the plaintiff’s precedents, nor has the plaintiff pointed out how the Department of Justice (acting for the defendants)  had allegedly acted dishonesty.

32.  We have in any event further reviewed the Decision and found no merit in the plaintiff’s allegations.  The Judge provided a detailed and reasoned judgment, and we do not see any procedural irregularities.  Therefore, this ground is wholly without basis and must be rejected.

C2.2.2  Bias

33.  On bias, the plaintiff has raised three allegations of actual bias against the Judge.  In the plaintiff’s own words, they are:

(1)  Allegation 1:

“[The Judge] refused and continues to refuse to accept the ‘interests of justice’ to proceed with a joined trial of the defendants rather than succumb to draconian and vexatious ‘strike out’ tactics by DoJ whose perverse aim is to delay and thwart the inevitable outcome of a trial”

(2)  Allegation 2:

“[The Judge] refused and continues to refuse to accept that His Honour’s alleged ‘innocent explanation’ is, in fact, a forgery of Eva LAU’s initials in her five affidavits, filed at the District Court by DoJ. This constitutes the criminal act of Subornation of Perjury s.40 Crimes Ordinance, Cap 200”

(3)  Allegation 3:

“[The Judge] refused and continues to refuse to accept the Microsoft Word font used in four letters to Plaintiff is an irregularity which draws the ‘irresistible inference’ that Eva LAU, an experienced judicial clerk, refused to sign letters to Plaintiff which she knew was dishonest by DCCC328/2001 assigned to a High Court application.

Likewise, Eva LAU’s refusal to appear before a Commissioner of Oaths and sign her affidavits is a further ‘irresistible inference’ that Eva LAU refused to be party to such dishonest submissions. As such, the DoJ arranged for some other person to appear before the Commissioner of Oaths and forge Eva LAU’s initials.”

34.  Allegation 1 is incomprehensible and illogical.

35.  In the hearing below, as seen in [1.5] - [2.6] of the Decision, the Judge dealt with the various applications and cross-applications before him, namely:

(1)  the defendant’s application in DCCJ 1956 dated 5 August 2022, to strike out the Statement of Claim and dismiss the action in DCCJ 1956 (“D’s Striking Out Application (DCCJ 1956)”);

(2)  the plaintiff’s application in DCCJ 1956 dated 8 August 2022, to strike out D’s Striking Out Application (DCCJ 1956);

(3)  the 1^st and 2^nd defendants’ application in DCCJ 3416 dated 10 October 2022 to strike out the Statement of Claim and dismiss the action in DCCJ 3416 (“D1 and D2’s Striking Out Application (DCCJ 3416)”); and

(4)  the plaintiff’s two applications both dated 1 December 2022 to strike out D’s Striking Out Application (DCCJ 1956)  and D1 and D2’s Striking Out Application (DCCJ 3416)  respectively.

36.  The Judge correctly understood that the essence of these applications were the defendants’ applications for striking out the Statements of Claims and dismissing the two actions.  It is evident that the Judge had a clear understanding of the plaintiff’s claim (at [4.1]), the elements of the tort of misfeasance in public office (at [4.2] - [4.4]), and the test for striking out a pleading for disclosing no reasonable cause of action (at [5.4]), as well as on grounds of frivolity, vexatiousness and/or abuse of process (at [5.15]).

37.  Regarding DCCJ 1956, the Judge was aware of the plaintiff’s assertion that Acting Registrar Wong was not a judicial officer and, therefore, absolute immunity did not apply (at [5.8]).  The Judge dismissed this assertion as “non-sensical” and provided reasons for his decision in holding that Acting Registrar Wong was a judicial officer and thus enjoyed absolute immunity under the Basic Law (at [5.9] - [5.13]).  The Judge’s approach and conclusion in this regard was entirely proper and correct.

38.  Further, the Judge also correctly held that the plaintiff’s claim was frivolous and vexatious and/or an abuse of process as “... there is no arguable basis for the plaintiff to equate an error in judgment with unlawfulness” (at [5.14] - [5.20]).

39.  For DCCJ 3416, the Judge found that Eva Lau (D1 in DCCJ 3416)  was acting as the clerk of Master Pang in her dealings with the plaintiff.  The Judge correctly rejected the contention that Eva Lau should have overridden the directions of the Macrare VP and Master Pang.  As for the plaintiff’s case against Sandy Cheung (D2 in DCCJ 3416), the Judge rightly noted, based on undisputable documentary evidence, that the plaintiff had been informed on multiple occasions that no criminal appeal number had been assigned to him, which was plain and obvious, and therefore the plaintiff’s own assumption that there was one was entirely unfounded.  He therefore held that the plaintiff’s claim against Sandy Cheung is equally frivolous and vexatious and/or an abuse of process: see [5.28] - [5.31] of the Decision.  We again entirely agree with the Judge’s holding.

40.  No arguable bias can be demonstrated by the plaintiff and Allegation 1 is plainly unjustified.

41.  Insofar as Allegations 2 and 3 are concerned, they both revolve around Eva Lau’s signatures on her affidavits and it is convenient to consider them together.

42.  In our view, these allegations are also non-starters. The Judge was aware of the plaintiff’s challenge on the admissibility of Eva Lau’s evidence and highlighted that his findings were based on contemporaneous correspondence that was undisputed or indisputable (at [3.2]).  Furthermore, the credibility of Eva Lau was never a live issue before the Judge.

43.  After careful consideration of these allegations and the Decision, we are not convinced that any arguable case on bias exists or can be made out.  Allegations 2 and 3 are equally devoid of any merits.

44.  In the premises, the intended appeal is bound to fail.  No leave to appeal out of time should be granted and the Leave Summonses should also be dismissed on merits.

D.  THE JOINDER AND WASTED COSTS SUMMONSES

45.  As the plaintiff does not have leave to appeal, it is not necessary to deal with the Joinder and Wasted Costs Summonses.  They should also be dismissed on this basis.

46.  In any event, the joinder application is misconceived and devoid of logic.  The plaintiff failed to demonstrate the reasons for the joinder.  More importantly, as noted by counsel for the defendants, there is no appeal against the decision of DCCJ 1129/2023.  Insofar as it is necessary to address the issue of wasted costs application, we see no basis to order wasted costs when the plaintiff is the unsuccessful party in all these applications.

47.  In the premises, we would also dismiss the Joinder and Wasted Costs Summonses on merits.

E.  DISPOSITIONS & COSTS

48.  Accordingly, we make the following orders:

(1)  The Leave Summonses be dismissed, with costs to the defendants; and

(2)  The Joinder and Wasted Costs Summonses be dismissed, with costs to the defendants.

49.  Further, we direct that the defendants’ costs to be assessed summarily on paper.

50.  In the defendants’ statements of costs dated respectively 4 September 2023 and 26 January 2024, the defendants claim costs in the total sum of $8,266 (under the Leave Summonses)  and $20,437 (under the Joinder and Wasted Costs Summonses).  The costs claimed by the defendants are reasonable.  In the circumstance, we allow the defendants’ costs in full.  The defendants’ costs are summarily assessed in the sum of $8,266 (for the Leave Summonses)  and $20,437 (for the Joinder and Wasted Costs Summonses).  Both the costs order and the assessments are made on nisi basis.  They shall become absolute 14 days from today unless there is an application to vary.

51.  As the Leave Summonses are wholly without merits and vexatious, we further order under Order 59, rule 2A(8)  of the RHC that no party may under rule 2A(7)  request the above determination to be reconsidered at an oral hearing inter partes.