KOO MING KOWN v. REV. MR. MOK KONG TING AND OTHERS

HCA 2337/2016

[2020] HKCFI 2654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

_____________

_____________

____________________

DECISION

____________________

1.  This is the application of Chan Chi Mong, Hopkins (“D3”) for leave to appeal from this court’s decision dated 3 June 2020 (“the Decision”).

2.  The Order dated 3 June 2020 (“the Order”) provides as follows:

“1. The Plaintiff’s appeal is allowed and the Order of Master Vincent Lung dated 29 April 2019 be set aside.

2. The 3^rd Defendant do within 14 days from the date hereof serve on the Plaintiff his Answers to the Plaintiff’s Request for Further and Better Particulars of the Defence of the 3^rd Defendant annexed to the F & B P Summons.

3. This 3^rd Defendant do produce within 7 days hereof the original of the document described in item 5 of the list attached to the Discovery Summons.

…”

3.  The sealed Order (with penal notice) was served on D3’s solicitors on 11 June 2020.

4.  On 17 June 2020, D3 took out a summons for leave to appeal the Order.  The draft Notice of Appeal and the grounds of appeal were lodged on 7 September 2020.

5.  Pausing there, the 2 grounds of appeal stated only concern §1 of the Order. No separate grounds were advanced in respect of §§2-3 of the Order.  Nor has there been any application for a stay of §§2-3 of the Order pending the court’s decision on the leave application.

A.   PRELIMINARY

6.  The Plaintiff took a preliminary point and submitted that the court has a discretion to refuse to hear D3’s application for leave to appeal because of D3’s flouting of §§2-3 of the Order.

7.  The respective deadlines for compliance with §§3 and 2 were 12 June 2020 and 17 June 2020.  D3 has neither provided nor produced within 7 days the original PhD certificate referred to in the defence nor the answers (within 14 days of the Order), notwithstanding reminders to do so.  Nor has he given any explanation for non-compliance.

8.  The court has a discretion to refuse to hear an alleged contemnor although where the order that has not been complied with is the order appealed against, the proper approach is first to decide whether he has an arguable case and, if so, to decide whether the judgment should be set aside or the contempt proceedings should be adjourned until the appeal has been heard: HKCP 2020 at 52/0/14.

9.  On 30 June 2020, having obtained leave to do so, the Plaintiff made an application for committal.  It has been adjourned to 4 November 2020 for argument.

10.  The time for compliance with §3 of the Order (for the production of the original of D3’s Ph D certificate) expired 5 days prior to D3’s summons for leave to appeal.  By 13 June 2020, D3 was already in breach of §3 of the Order.

11.  At a bare minimum, D3 should have applied for a stay of §§2-3 of the Order pending his leave application or sought appropriate directions from the court.  He did neither.  Instead, he flouted them.

12.  Prima facie, D3 was in contempt. That said, in view of the upcoming hearing of the committal proceedings, I do not propose to rule on the preliminary point.

B.  APPLICABLE LAW ON GRANTING LEAVE TO APPEAL

13.  It is common ground that for leave to be granted, the court has to be 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.

C.   D3’S GROUNDS OF APPEAL

Ground 1

14.  As formulated, this ground reads:

“The court erred in holding that there is a justiciable issue between the Plaintiff and D3, in that the court failed to identify any legal and/or equitable rights enforceable between the parties.”

15.  D3’s submissions simply repeat those put forward during the hearing on 26 May 2020. The crux of the dispute centres on whether D3 is a fit and proper person to serve as the supervisor for the purposes of the Education Ordinance (“the Ordinance”).  D3’s contention at the hearing was that only the management committee or the PSE has the power to do so under the Ordinance.

16.  The court held that on a proper construction of the Ordinance, the management committee has a statutory duty to ensure that every person so appointed by it as supervisor shall be a fit and proper person, and the question whether an incumbent is a fit and proper person to hold the office of supervisor is a justiciable issue by the court: Decision at §54.

17.  While not challenging the above analysis, D3 contends that it does not give rise to any legal and equitable rights enforceable between the plaintiff and D3. But as DHCJ To[1] has found, the plaintiff has a real interest in the subject matter of the declaration and that

“[D3] whose fitness is called in question, of course has an interest in opposing the plaintiff’s claim. Hence, the Council, including the 1^st defendant and each and every other member, and [D3] are appropriate contradictors.”: see the 2018 Decision at §§26 and 47.

18.  In my view, there is no reasonable prospect of D3 succeeding on this ground.

Ground 2

19.  This states:

“The court erred in holding that there is no certainty that no court would grant the declaration in question, notwithstanding that D3 has ceased to be the supervisor from 2018 onwards and the public statement published by D4 in February 2019.”

20.  This is again nothing more than a rehash of the arguments made on 26 May 2020.

21.  At §58 of the Decision, this court held that the relevant time for determining whether the pleaded cause of action is viable is the date the proceedings were commenced and that subsequent events cannot retrospectively invalidate what was a viable cause of action.

22.  Both now and at the date of the hearing, no authority has been cited to show that that holding is wrong.

23.  The complaint now is that as no relevant time or period was specified for the declaration sought and granted, the declaration has the effect of a permanent injunction.  Further, it was said that the relevant time to consider whether a person is fit and proper is when approval is sought from the PSE under the Ordinance but not otherwise.

24.  D3 cites Re A (admission as barrister) [2018] 2 HKLRD 1245 and Layne v AG of Grenada [2019] UKPC 11.  Those authorities concern applications for admission to the Bar and in each case the ruling is that the court would consider the applicant’s character at the time of the application and not previously.  They do not lay down any general principle that a court cannot grant a declaration that a person is not a fit and proper person for the time being, based on the facts and evidence before the court.

25.  In the present case, the relief the plaintiff applied for is based on the present status of D3.  The effect of the declaration made is spelt out in §73 of the Decision.  All it does is to put the onus on D3 to show that he is a reformed person.  Hence, the declaration is not a permanent injunction.

26.  It is said that there is no evidential basis for suggesting a recurrence of the conduct of D3 in the foreseeable future.  But the matters set out in §§69-70 of the Decision speak for themselves: the likelihood of a recurrence is neither far-fetched nor fanciful.

27.  D3 argues that the PSE may take a different view on the fit and proper issue.  As he is not a party, he would not be bound by the declaration which could produce an absurd result.

28.  The PSE’s approval will only arise upon a recommendation of the management committee that D3 be appointed as the supervisor under section 38 (2) of the Ordinance.  Any recommendation could only be made by the management committee after consideration of the court’s declaration to the effect that D3 is not a fit and proper person to be supervisor.  If no such recommendation is forthcoming, there will be no question of the PSE approving such a recommendation.

29.  In any event, even assuming that the PSE should be joined as a party, “no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party …”: See RHC, O.15 r. 6.

D.   CONCLUSION

30.  For the reasons stated above, neither of the grounds put forward by D3 for leave to appeal has any reasonable prospect of success.

31.  Accordingly, D3’s application is dismissed.  There is to be an order nisi of costs in favour of the plaintiff with certificate for two counsel, such costs to be summarily assessed (directions being given separately) and payable forthwith.