CHOY BING WING v. PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)

HCMP 1097/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1097 OF 2013

(ON AN INTENDED APPEAL FROM HCA NO. 1994 OF 2012)

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J U D G M E N T

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

1.  By summons dated 16 May 2013, the plaintiff seeks leave to appeal against the Decision of Deputy High Court Judge L. Chan SC dated 28 March 2013.

2.  By that Decision, the Deputy Judge dismissed an appeal by the plaintiff against a master’s refusal to grant a stay of the action pending the determination of an alleged perjury said to be contained in an affirmation of the defendant or alternatively to strike out that affirmation.  She also dismissed the plaintiff’s application for an unless order to compel the defendant to file an affirmation in reply to two of his affirmations in the action.

3.  The context of those applications was an action (HCA 1994/2012) by the plaintiff against the defendant seeking an injunction to restrain the defendant from proceeding with a disciplinary inquiry against him.

4.  The defendant applied by summons dated 29 November 2012 to strike out the action.  The defendant filed an affirmation in support of its strike out summons.

5.  The plaintiff in turn applied by summons dated 6 December 2012 to strike out the defendant’s summons and filed an affirmation in support.

6.  It was that affirmation that was said to contain the alleged perjury and which led to the stay application which the Deputy Judge dealt with in her Decision.

7.  After the Judge handed down her Decision dated 28 March 2013, the plaintiff applied to her for leave to appeal.  The Judge dismissed that application on 3 May 2013 and the present summons is a renewal of the application for leave to appeal.

8.  In our judgment, the application for leave to appeal is misconceived.

9.  The plaintiff’s complaint about the content of the defendant’s affirmation and the alleged perjury said to be contained in it was a matter which the plaintiff could rely upon in resisting the defendant’s strike out application and there was no basis for staying the strike out application pending determination of the alleged perjury.  The Judge pointed this out at paragraph 17 of the Decision.

10.  The Judge’s refusal to grant an order compelling the defendant to file an affirmation in reply to the plaintiff’s affirmations was wholly correct for the reasons set out in her Decision at paragraph 22 to 24.

11.  In any event, the plaintiff’s two applications have now been overtaken by the fact that, by an order dated 31 May 2013, Master M. Wong acceded to the defendant’s strike out application.  The action having now been struck out, the interlocutory applications which were issued by the defendant as preliminary matters to the defendant’s strike out application have been superseded by events, specifically the striking out of the action.

12.  We therefore dismiss the plaintiff’s summons dated 16 May 2013.

13.  Further, since we consider the application to be totally without merit, we make an order, pursuant to O.59 r.2A(8), that no party may request the determination to be reconsidered at an oral hearing inter partes.

14.  We make an order nisi that the plaintiff is to pay the defendant’s costs of the application for leave to appeal.  Those costs will be assessed on a gross sum basis and for that purpose, we direct the plaintiff’s solicitors to serve a statement of costs within 7 days of the costs order nisi becoming absolute.  The defendant may respond with any objections to that statement of costs within 7 days thereafter.