CHOW KIN HANG ALI v. MR. HO, REGISTRAR OF COURT OF CIVIL APPEALS

HCAL 978/2023

[2023] HKCFI 1681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 978 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 20 June 2023, and filed the next day, the Applicant seeks leave to apply for judicial review so as to challenge a ‘decision’ said to have been made by Master Ho, Registrar of Civil Appeals as identified in the letter dated 10 May 2023.

2.  The application arises in the following context:

(1)  The Applicant is the appellant in CACV 99/2023, on an intended appeal from DCEC 1413/2019.

(2)  The Notice of Appeal was served on the respondent to the appeal, on 28 March 2023, at the offices of the respondent’s solicitors.

(3)  On 8 May 2023, the Applicant filed a summons in the appeal (“Summons”) asking for an order that final judgment be entered in his favour on the appeal, in default of a Respondent’s Notice having been filed by the respondent to the appeal.

(4)  The application made by the Summons was said to have been in accordance with the provisions of RHC Order 59 rule 6(3), which provides that:

Any notice given by a respondent under this rule (in this Order referred to as a respondent’s notice) must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent, and must be served –

(a)  where the notice of appeal related to an interlocutory order, within 14 days, and

(b)  in any other case, within 21 days, after the service of the notice of appeal on the respondent.

(5)  By the letter dated 10 May 2023, the Registrar of Civil Appeals made directions which included:

The Applicant’s Summons for final judgment to be entered is a misconceived application.  Order 59, rule 6 of the High Court Rules (cited by the Applicant) does not provide that in default of a Respondent’s Notice, final judgment can be entered in favour of the Applicant. As such, the Summons will be referred to the Court of Appeal for dismissal in due course.

3.  That is the paragraph of the letter which is the focus of the Applicant’s intended challenge by way of judicial review.

B.  No Merit in Intended Challenge

4.  With respect, and as the Registrar of Civil Appeals has pointed out by reference to the Summons issued by the Applicant in the appeal, the intended challenge is based upon a fundamental misunderstanding of RHC Order 59 rule 6.

5.  That rule simply provides, and has the effect, that:

(1)  A respondent who has been served with a Notice of Appeal must give notice (by way of a Respondent’s Notice) if he desires

(a)  to contend on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part, or

(b)  to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or

(c)  to contend by way of cross-appeal that the decision of the court below was wrong in whole or in part.

(2)  In a case where a respondent to an appeal wishes to file a Respondent’s Notice, that notice must be filed within a particular time.

(3)  The rule neither requires a respondent to file a Respondent’s Notice, nor does it give rise to any event of default if a respondent chooses not to file a Respondent’s Notice.

(4)  The consequence of a respondent not filing a Respondent’s Notice is to debar the respondent to the appeal from raising matters which could only be raised by way of such a notice.

(5)  If no Respondent’s Notice is filed in the appeal, the issues to be determined on the appeal will be those identified in the Notice of Appeal.

6.  Hence, the Applicant’s suggestion that the Registrar of Civil Appeals has somehow made a mistake, in describing the application made by Summons as misconceived, is simply incorrect.

7.  Further, I do not think the ‘decision’ of the Registrar of Civil Appeals is even amenable to judicial review.  First, as the 10 May 2023 letter identifies, no substantive decision about the Summons was made by the Registrar of Civil Appeals.  He simply pointed out – entirely correctly – that the Summons was misconceived (for a reason which he also provided).  The letter specifically identified that the Summons would be referred to the Court of Appeal in due course.  Secondly, judicial review is a supervisory jurisdiction exercised by the High Court, not of the High Court.  Ultimately, if the Applicant is dissatisfied with the order eventually made on his Summons, it will be up to him to seek to challenge that by way of further appeal (if appropriate).

8.  Nor do I think there is any basis for criticising the comment that the reference of the Summons to the Court of Appeal would be for dismissal of the Summons in due course.  That does not seem to me to evidence the suggested communication between a Judge and the Registrar of Civil Appeals, nor any agreement to pursue a fixed verdict in advance.  It is a comment simply to point out that a misconceived application will be dealt with by the Court of Appeal in due course, likely by its dismissal in due course.

9.  Therefore, the Applicant’s argument that the applications made by his Summons and filing to the clerk “were rightful” is wrong.  Nor has there been the alleged violation of any legal rights of the Applicant.

C.  Result

10.  The Applicant’s application for leave to apply for judicial review fails to identify any ground which is reasonably arguable with any reasonable prospect of success.

11.  In consequence, the application is dismissed.

12.  I make no order as to costs.