CHOY BING WING v. APPEAL COMMITTEE OF THE HONG KONG INSTITUTION OF ENGINEERS

HCAL 48/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 48 OF 2016

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D E C I S I O N

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Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Appeal Committee (the Appeal Committee) of the Hong Kong Institution of Engineers (the HKIE) dated 18 December 2015, dismissing the applicant’s appeal and upholding the order of the Council of the HKIE dated 17 January 2013, suspending the membership of the applicant for 3 years from 18 January 2013 to 17 January 2016 under Articles 13(4)(d) and 13(5)(c) of the Constitution of the HKIE.

The basis for review

2.  The principal ground for review is that the Appeal Committee wrongly treated the two cases in which the applicant was found to have committed a contempt of court as criminal offences as defined under the Constitution of the HKIE.

3.  The relief sought includes an order of certiorari to remove the proceedings of the Appeal Committee to this Court and to quash the decision and to award damages. 

The applicant’s standing

4.  The applicant is the subject of Restricted Proceedings Orders made by A Cheung J (now A Cheung CJHC) on 12 August 2005 in HCA No. 424 of 2005 and Lam J (now Lam VP) on 23 December 2005 in HCA No. 2351 of 2005.  The reported citation of the latter case is Choy Bing Wing v Chief Executive of HKSAR and Ors [2006] 1 HKLRD 666.

5.  On 23 February 2016, Mimmie Chan J directed that the applicant’s application for leave to apply for judicial review did not fall within the ambit of the Restricted Proceedings Orders.  The application therefore proceeded as normal.

Pre-hearing directions

6.  By direction from the Court on 18 April 2016, the applicant was informed that nowhere in the papers filed had he requested an oral hearing as provided in the circumstances described in Practice Direction SL3 at §7 and that he should notify the Court whether or not he would request such oral hearing or whether he would be content for the application to be decided on the papers.  By return mail he requested an oral hearing if leave was refused on the papers. 

7.  By further direction from the Court on the same date, the applicant was informed that pursuant to §7 of the Practice Direction the Court after an initial consideration of the application was minded to refuse leave and accordingly an oral hearing would be fixed.  He was also informed of the possible costs implication if he was unsuccessful and that an invitation would be extended to the putative respondent and putative interested party to participate in and attend the hearing if they wished to do so.  Finally, the applicant was requested to address the issue of alternative remedy in light of his appeal to the Court of Appeal in CACV 275/2015 against a decision of Au-Yeung J in HCA 309/2015 where she held that the two contempt cases in question constituted criminal offences as defined under the Constitution of the HKIE.

8.  As directed by the Court, all the parties had filed and served written argument before the oral hearing.  The putative respondent and putative interested party had requested that they be excused from attending the hearing which was granted.  The applicant took issue with the HKIE being made a putative interested party and the non-attendance of the Appeal Committee as the putative respondent at the oral hearing.  There is no substance to the complaint.  Clearly the HKIE has an interest in the judicial review proceedings being the professional body that instituted the disciplinary proceedings against the applicant.  The parties were invited at the direction of the Court to participate in ex parte proceedings to assist the Court in addressing the question of the applicant’s leave application having determined that leave should be refused on the papers. 

9.  In any event, the Court granted the parties leave not to attend the oral hearing in light of the written submission that they had filed. 

The regulatory scheme of the HKIE

10.  Before I address the applicant’s substantive application, I will provide a brief description of the regulatory scheme that is in place by the HKIE in addressing misconduct of its members. 

11.  The HKIE was incorporated under the Hong Kong Institute of Engineers Ordinance, Cap 1105.  The governing body of the HKIE is the Council which is established under section 7 of the Ordinance.  The Council has adopted a constitution under section 10 of the Ordinance.

12.  I will highlight the relevant articles in the Constitution but it should be noted that the HKIE is referred to as “the Institution”. 

13.  Article 13(4) reads:

“(a) The Council shall, at its first meeting after each Annual General Meeting, appoint a panel from which Boards of Inquiry may be formed for the purpose of considering and making recommendations to the Council in regard to any case of improper conduct of a member.

…

(d)    If a member of any class shall be found by the Board of Inquiry to have been guilty of improper conduct, the Council may, by a resolution passed at a meeting of the Council at which at least three-fourths of the Members thereof present and voting vote in favour of the resolution…, order him to be expelled from the Institution, or that his membership be suspended for any period, or that he be reprimanded or admonished and/or that he be removed from the Roll.”

14.  By Article 13(4), the Council may take disciplinary action as specified against a member upon a finding by a Board of Inquiry that he has been guilty of improper conduct. 

15.  “Improper conduct” is broadly defined under Article 13(5) and reads:

“(5)   For the purposes of this Article “improper conduct” shall include:­

(a)  the making of any false representation or untrue or misleading statement in applying for election or transfer to any class of membership of the Institution or inclusion on the Register; or

(b)  any breach of this Constitution or of any regulation, rule or direction made or given thereunder; or

(c)  conviction by a competent tribunal of a criminal offence which in the opinion of the Council renders a member unfit to be a member; or

(d) any conduct injurious to the Institution.”

16.  Included under the definition of improper conduct is a conviction of a criminal offence which in the opinion of the Council renders a member unfit and any conduct injurious to the HKIE.

17.  The Council is also empowered under Article 13(6) to make regulation for the purpose of regulating the procedure of proceedings, investigations and inquiries relating to any members alleged improper conduct.  Accordingly, the Council has promulgated Disciplinary Regulations.

18.  Under Article 13(4A), an appeal against an order by the Council for improper conduct shall lie to an Appeal Committee and the decision of the Appeal Committee shall be final.

The background facts

19.  The applicant has been a registered member of the HKIE since 1983.  He is well known to the courts and has been the subject of restrictive orders as a litigant as I have already mentioned. He has also been found guilty of contempt of court on two occasions.  First, in S for J v Choy Bing Wing, HCMP 4694/2003, 25 October 2005, unreported, (Hartmann and Suffiad JJ), and secondly, in S for J v Choy Bing Wing, HCMP 1313/2010, 7 January 2011, unreported, (McMahon and Macrae JJ), where he was sentenced to 6 months’ and 4 months’ imprisonment respectively. 

20.  Following the first contempt, the Executive of the HKIE appointed an Investigating Commission under its Disciplinary Regulations in respect of the applicant’s conduct.  It appears the matter was placed in abeyance but later resurrected after the second contempt when the applicant was formally informed of the investigation by way of letter from the HKIE dated 16 December 2011. 

21.  The applicant took issue with the investigation and in a letter dated 19 December 2011 alleged that contempt of court was not a criminal offence that would constitute improper conduct as defined under Article 13(5). 

22.  By letter dated 3 October 2012, the HKIE informed the applicant, amongst other things, that the case had been referred to the Board of Inquiry and that a hearing had been arranged to be held on 9 November 2012. 

23.  Prior to the hearing on 24 October 2012, the applicant instituted proceedings in HCA 1994/2012 against the President of the HKIE for an injunction to prevent the hearing of the Board of Inquiry on 9 November 2012.  The action was struck out by a Master on 31 May 2013. 

24.  The applicant embarked on a series of appeals against the decision which were all dismissed.  First to the Court of First Instance (dismissed by Mimmie Chan J on 12 August 2013), then to the Court of Appeal (dismissed on 5 March 2014) and finally to the Court of Final Appeal for an application for leave to appeal (dismissed on 13 June 2014). 

25.  The hearing of the Board of Inquiry took place on 9 November 2012 but the applicant did not attend.  The Board proceeded in his absence and found that he had been guilty of improper conduct by reason of his criminal contempt in HCMP 4694/2003 and HCMP 1313/2010 under Article 13(5)(c) which was also held to be conduct injurious to the HKIE as provided under Article 13(5)(d).

26.  On 17 January 2013, pursuant to the finding of the Board of Inquiry, the Council of the HKIE ordered that the applicant’s membership with HKIE be suspended for 3 years with effect from 18 January 2013 to 17 January 2016. 

27.  On 21 January 2013, the applicant appealed the suspension order to the Appeal Committee pursuant to Article 13(4)(a) of the Constitution.  The suspension order was put on hold pending the outcome of the decision of the Appeal Committee. 

28.  By various decisions and appointments throughout 2014, the Appeal Committee was constituted.  In a letter dated 21 January 2015 from the Chief Executive and Secretary of the HKIE, the applicant was informed of the constitution and the membership of the Appeal Committee to which no objection was raised by him.  Draft procedures were also submitted to him but he made no comment on them. 

29.  On 5 February 2015, the applicant instituted proceedings in the High Court in HCA 309/2015 against the HKIE seeking a declaration that the suspension order issued on 17 January 2013 was null and void.  The HKIE later took out a summons to strike out the applicant’s claim and to determine a question of law, namely “whether the references to a person being ‘convicted of a criminal offence’ in the Defendant’s Constitution and Disciplinary Regulations include the situation where a person was found guilty of criminal contempt of court”.  It was heard on 18 November 2015 before Au-Yeung J, who on 27 November 2015 handed down her decision striking out the applicant’s claim and answering the question of law in the affirmative. 

30.  During this period, there were a series of letters from the applicant to the Appeal Committee raising jurisdictional and other issues. 

31.  In a letter dated 3 July 2015, the Appeal Committee through its clerk informed the appellant that it had not received any submissions from him in support of his appeal or in response to the written submissions from the respondent dated 18 June 2015. 

32.  The applicant was advised by letter dated 21 July 2015 that the Appeal Committee would conduct a hearing of his appeal on 24 August 2015.  A reminder letter dated 17 August 2015 was also sent to him.  The applicant did not attend the hearing and the Appeal Committee proceeded to deal with the appeal in his absence.

33.  On 18 December 2015, the Appeal Committee handed down its written decision, dismissing the appeal.  It was noted by the Appeal Committee that during the hearing the legal adviser for the HKIE mentioned that the applicant had commenced a High Court action, HCA 309/2015, against the HKIE in which he sought a declaration that the suspension order of 3 years be declared null and void and where a request had been made for the court to determine whether references to a person being convicted of a criminal offence in the Constitution and Regulations of the HKIE include the situation where a person had been found guilty of criminal contempt of the court. 

34.  It was also noted that the legal adviser mentioned that there was only one ground on which the applicant was relying on for the appeal which was that the applicant considered that his application to the court for an injunction against the Board of Inquiry should be disposed of before the HKIE could carry out the disciplinary proceedings.  He noted, however, that these proceedings had been disposed of on 13 June 2014 when leave to appeal to the Court of Final Appeal had been refused. 

35.  The Appeal Committee described in detail the history of the case and the submissions and issues raised by the applicant before setting out its decision in the following paragraphs:

“35. The Appeal Committee notes that the Appellant did not submit any grounds of appeal nor written submissions in support of his Appeal. The Appellant has been given sufficient notice to attend the Hearing to present his Case but he chose not to be present.

36. The Appeal Committee noted the Respondent pointed out that the only ground of the Appellant for the Appeal was pending the disposal for his action of application to the Court for injunction. This can be seen in the Appellant’s letter dated 21 January 2013. The Appeal Committee also noted that the case HCA 1995/2005 was mistakenly stated as set out in the same Appellant’s letter. The Respondent had rightly pointed out that no other ground of appeal had been raised by the Appellant.

37. Based on the facts and information laid before the Appeal Committee, the Appeal Committee notes that the Respondent has followed the provisions as laid down in the Constitution and Regulations in processing the initiation, investigation and hearing of the Case of the Appellant to form the Order of the Council.

38. The Appeal Committee also notes that there is no substantive information about the content, merits and arguments of the Appeal could be provided by the Appellant to support his Appeal.

39.     Therefore, the Appeal Committee considers that there is no basis for the ground of Appeal relied on by the Appellant.  The Appeal is dismissed.”

36.  The Appeal Committee dismissed the applicant’s appeal and referred the matter to the Council of the HKIE.  The Appeal Committee also addressed the issue of costs to which the applicant was invited to respond but he chose not do so.  In consequence, the Appeal Committee ordered that the applicant pay the HKIE the amount of $25,235 as the costs of and incidental to the proceedings of the appeal. 

37.  Following the decision of the Appeal Committee, the HKIE formally informed the applicant on 22 January 2016 of the order of the Council at its meeting on 21 January 2016 that his membership would be suspended for 3 years with effect from 19 December 2015 to 18 December 2018.  An invoice was also submitted for payment of the amount of $25,235 for the HKIE’s costs. 

38.  The applicant in a letter to the HKIE dated 25 January 2016, made a series of complaints but essentially argued that the actions and the decisions of the HKIE were without jurisdiction because contempt of court was not a criminal offence that can invoke Article 13(5)(c).  I should note that the applicant throughout this matter has ignored the fact that the finding of improper conduct by the Board of Inquiry was also on the basis that his conduct was injurious to the HKIE under Article 13(5)(d).

39.  In order to put matters in their proper perspective, I should briefly describe the events surrounding HCA 309/2015.  After the Appeal Committee hearing on 24 August 2015, the applicant’s High Court action for a declaration that the suspension order was null and void was the subject of a decision of Au-Yeung J which was handed down on 27 November 2015, having been heard on 18 November 2015.  The judge struck out the applicant’s claim and dismissed the action and found that contempt of court in the present case is a criminal offence within the terms of the Constitution of the HKIE.  She also ordered that the applicant pay the HKIE’s costs in the sum of $150,000.

40.  On 9 December 2015, the applicant filed a Notice of Appeal against the decision of Au-Yeung J on the ground that she erred in law in answering affirmatively the question whether a contempt of court was a criminal offence in the circumstances of the present case. 

41.  I am informed that the hearing of the appeal has yet to be fixed. 

The basis of the judicial review

42.  The basis of the applicant’s challenge of the Appeal Committee’s decision by way of judicial review is that contempt of court is not a criminal offence in accordance with the provisions of the Constitution to invoke the disciplinary proceedings that had been taken by the HKIE.  In consequence, the steps taken in relation to the disciplinary proceedings were void ab initio for want of jurisdiction, and in particular the Appeal Committee acted without valid invocation of Article 13(5)(c) and 13(4)(d).

43.  The applicant also complains that the decision of the Appeal Committee had been grossly unreasonable and had violated the rules of natural justice.  No specific particulars have really been provided to support this complaint and as far as I am concerned from what I have before me there is no evidence to support it.  In fact, all the evidence is to the contrary. 

44.  A reading of the decision of the Appeal Committee sets out in detail a history of the matter and the exchanges that had taken place between the applicant and the HKIE, as well as listing the numerous opportunities that were given to the applicant to address matters relating to the appeal. 

An alternative remedy

45.  The applicant also mentions in his application the decision of Au-Yeung J in HCA 309/2015 in which she ruled that a contempt of court is a criminal offence in the circumstances of the present case.  He has appealed the decision.

46.  This is crucial matter.  It is why the Court invited the applicant to address the issue of alternative remedy. 

47.  It is well recognised that judicial review is a remedy of last resort and it is therefore incumbent on a person wishing to bring judicial review proceedings to exhaust all alternative effective remedies before doing so.  If that point has not been reached, the court will normally decline a remedy in judicial review.  For the court to depart from this general rule, it is necessary to show exceptional circumstances.  See Kwok Cheuk Kin v Secretary for Transport and Housing and Others, HCAL 136/2015, 4 January 2016, unreported, at §§98 to 102. 

48.  The applicant argues that the relief sought in the civil appeal and the judicial review is different.  He submits that the remedies in the judicial review are the removal of the suspension order made on 21 January 2016 and the removal of the order as to costs, whilst in the civil appeal they are a declaration that the suspension order made on 17 January 2013 was null and void and the removal of the costs order. 

49.  This argument is fatuous for two principal reasons.  First, both proceedings centre on the same suspension order made on 21 January 2016 except in the judicial review it is after the applicant has exhausted his avenue of appeal under the Constitution. Secondly, and most importantly, the substance of both proceedings is the same and turns on the question whether contempt of court is a criminal offence. This is the basis of the applicant’s leave application to judicially review the decision of the Appeal Committee.  He argues that the Appeal Committee should not have upheld the 3 years suspension order because it was wrongly based on treating contempt of court as a criminal offence.  He has also instituted an appeal against the decision of Au-Yeung J where she has held that the applicant’s two contempt cases are criminal offences in the present case.

The principal ground for review

50.  The principal ground for review is that the decision of suspension upheld by the Appeal Committee wrongly treated the two contempt cases as criminal offences as defined under Article 13(5)(c) of the Constitution.  More specifically, the applicant submits that the Appeal Committee failed in its duty not to quash the suspension order for being void ab initio by failing to consider Re Kennedy (No3) [2009] 1 HKC 57.

51.  In addressing this ground, I will put aside the issue as to whether the subject matter was properly before the Appeal Committee as the applicant refused to attend the hearing and failed to file any written argument in support of the appeal. 

52.  The applicant contends that the two contempt cases were not criminal but a civil cause or matter and therefore not caught by Article 13(5). 

53.  Central to the applicant’s submission is the determination of the Appeal Committee of the Court of Final Appeal in Re Kennedy (No.3).  That case concerned an application by the directors of the company for an order of committal against the liquidator for contempt on the ground that he had supplied transcripts of their private examinations order under section 221 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32, to the police without leave of the court. 

54.  The questions framed for the leave of the court sought to have addressed the function and duties of a liquidator in investigating and reporting suspected criminal conduct, the provision of information or materials obtained under its powers to the police without first obtaining the approval of the court, and the ambit of liability to committal for contempt of court by officers under the legislation because of the breach of subsidiary legislation where there is no express prohibition. 

55.  The court in deciding to grant leave under section 22(1) of the Court of Final Appeal Ordinance, Cap 484, held that the proceedings in that case were a civil cause or matter, having particular regard to the winding up proceedings being the underlying matter involved.

56.  As submitted by the HKIE, to which I agree, it is incontrovertible that the applicant was found guilty of criminal contempt in HCMP 4694/2003 and HCMP 1313/2010.  This is reflected in each instance by the nature and degree of the contempt found by the court in each instance, constituting a serious interference with the administration of justice, and the nature and severity of the sanction imposed by the court.

57.  The court in HCMP 4694/2003 found that the applicant’s conduct constituted “a serious contempt of court”, one which had the real risk to interfere with the administration of justice.  In fact, the applicant argued before the court that the contempt of which he stood accused in those proceedings was a criminal contempt.  He submitted that the court lacked jurisdiction because it was a criminal contempt and he should be tried in a criminal court.  The court agreed that the contempt was a criminal contempt but disagreed that it did not have jurisdiction to deal with it: HCMP 4694/2003, 7 December 2005, unreported, Ruling As To Penalty, at §§9 to 16. 

58.  In HCMP 1313/2010, the court concluded that the conduct of the applicant “so scandalised the court by his action as to be in contempt of court”. 

59.  In both case he received a penalty that was punitive and deterrent by the imposition of a term of imprisonment of 6 and 4 months respectively. 

60.  The HKIE in its written submission put forward a number of authorities which stand for the proposition that a criminal contempt of court is a criminal offence.  See Cobra Golf Inc v Rata (No.2) [1998] Ch 109 at 137C-F; Balogh v St. Albans Crown Court [1975] 1 QB 73 at 85H, 87C and 91E; and Morris v Crown Office [1970] 2 QB 114, at 123H to 124B. 

61.  This was addressed by Au-Yeung J in her decision where she held that the contempt of court in this instance was a criminal offence and that reference to a person being convicted of a criminal offence in the Constitution and Disciplinary Regulations of HKIE includes the situation where a person was found guilty of criminal contempt of court.  She also reaffirmed at §24 that an intention and act to interfere with or impede the due administration of justice is criminal contempt, which is a common law offence punishable by imprisonment.  See Chiu Luen Public Light Bus Co Ltd v Persons Unlawfully Occupying or Remaining on the Public Highway [2014] 6 HKC 298 at §124, per Au J.

62.  The applicant in the meantime has appealed the decision of Au-Yeung J and it is yet to be heard. Thus the very issue that the applicant seeks to run in these judicial review proceedings is the subject of an appeal by him to the Court of Appeal. 

63.  On this ground alone, the application for leave to apply for judicial review should be refused because the applicant has an alternative remedy to address the very issue he wishes to raise in these judicial review proceedings which is to be determined by an Appellate Court.  However, I am satisfied for the foregoing reasons that there is no substance to this ground of review.

The further grounds for review

64.  The written argument of the applicant goes beyond the grounds for review as set out in the application.

65.  The applicant argues that the Appeal Committee committed an error of law in dismissing the appeal of the applicant “for the wrong legal entity of the Respondent of the appeal by taking the President of HKIE, a natural person as Defendant in HCA 1994/2012, in lieu of the body corporate established under Cap 1105, HKIE, the legal person as the Respondent stated in the appeal for against the 2013 Suspension Order issued for want of jurisdiction by HKIE.”

66.  I agree with the respondent as stated in its written argument that it is unclear what the applicant is suggesting was the error of law committed by the Appeal Committee.  He seems to be arguing, either the appeal committee committed an error of law in relying on the dismissal of HCA 1994/2012 when dismissing the appeal of the applicant or the appeal committee committed an error of law in dismissing the applicant’s claim in HCA 1994/2012 because the applicant proceeded against the wrong party.  You will recall that HCA 1994/2012 was the applicant’s action in the High Court seeking an injunction against the President of the HKIE to stop the disciplinary proceedings against him.

67.  If the applicant is suggesting that the Appeal Committee committed an error of law by relying on the dismissal of HCA 1994/2012 when dismissing the appeal of the applicant, this is without substance because the dismissal of HCA 1994/2012 was not a reason why it dismissed the appeal. 

68.  The Appeal Committee in dismissing the appeal found that the HKIE had followed the proper provisions laid down in the Constitution and Regulations in bringing the disciplinary action against the applicant and that there was no substantive information or argument from the applicant in support of his appeal.  In other words, the Appeal Committee found that the applicant’s appeal lacked merit and dismissed the appeal accordingly.  The dismissal of the applicant’s claim in HCA 1994/2012 was not the reason why the Appeal Committee dismissed the applicant’s appeal.

69.  If the applicant is suggesting that the Appeal Committee committed an error of law in dismissing the applicant’s claim in HCA 1994/2012 because the applicant had instituted the proceedings against the wrong party, this argument is misconceived.  It is not the function of the Appeal Committee to strike out the applicant’s claim in HCA 1994/2012.  That is the function of the court seized of the action.  On 12 August 2013, Minnie Chan J found the claim “unsustainable, is frivolous and vexatious, and should be struck out.”

70.  In the course of oral submissions, the applicant complained about the submissions of the legal adviser to the HKIE as recorded in §34 of the written decision of the Appeal Committee, when commenting on HCA 309/2015, said he was not sure whether the court had given a determination on the issue of whether the suspension order was null and void and that leave had been refused by the Court of Final Appeal on 13 June 2014 in relation to the applicant’s application in HCA 1994/2012 for an injunction preventing the holding of the Board of Inquiry. 

71.  What is not appreciated by the applicant is that the hearing of the appeal by the Appeal Committee took place on 24 August 2015 and the Appeal Committee handed down its decision on 18 December 2015.  So what is contained in §34 is correct because as at the date of the hearing, the decision in HCA 309/2015 had yet to be heard.  It was heard on 18 November 2015 and the decision was handed down on 27 November 2015.

72.  The applicant further argues that the Appeal Committee failed in its duty not to take notice of the legal effect of the suspension order issued by the HKIE on 17 January 2013.  He said that the “Suspension Order had actually rendered the judicial remedy, injunction, as sought in HCA 1994/2012 eliminated.  As such, the Appeal Committee committed another error of law for the reason of its Decision of dismissal of the appeal based upon the HCA 1994/2012 case which had been dispensed with by the Respondent on 17/1/2013.  As a matter of fact, no proceedings had ever been carried out by the CFA for the reason of dismissal of the appeal given by the Appeal Committee.” 

73.  The applicant seems to be arguing that the suspension order nullified his application for an injunction in HCA 1994/2012.  This misunderstands what took place.  The proceedings were struck out by an order of the court and it had nothing to do with the Appeal Committee.  Nor did the suspension order nullify or prevent the relief sought by the applicant.  As pointed out, the court found that the applicant’s claim in HCA 1994/2012 did not have any merit and was struck out.  The suspension order was issued on 17 January 2013, whereupon on 21 January 2013 the applicant appealed the order to the appeal committee. The order was put on hold pending the outcome of the appeal.

Conclusion

74.  As I have indicated on the basis that the applicant has initiated an alternative remedy to address the very point he wishes to argue in the present judicial review proceedings, leave should be refused on this ground alone.

75.  However, I am of the view in light of the foregoing that there is no substance to the principal ground for review he has sought to advance in relation to the two contempt cases of which he had been found guilty, as explained by Au-Yeung J they clearly arose in circumstances where he was found guilty of serious contempt which involved heightened disobedience and open disrespect for the court and resulted in him receiving the imposition of a criminal sanction of terms of imprisonment.  As found by Au-Yeung J, the applicant’s conduct towards officers of the court in the instances for which he was dealt with was contumacious and constituted a criminal offence under Article 13(5)(c).  I do not find that the applicant’s submissions on this issue are reasonably arguable. 

76.  As I have already mentioned, the applicant failed to consider that the finding of improper conduct by the Board of Inquiry was also based on conduct injurious to the HKIE under Article 13(5)(d).  There appears to be no challenge on the Board’s finding under this limb. 

77.  I am also of the view that for the reasons I have given that there is no substance to the other grounds for review he also sought to advance.

78.  The application for leave to apply for judicial review is therefore refused.

Costs

79.  The putative respondent and the putative interested party claim their costs in the sum of $44,926.  They claim that the leave application is without merit and amounts to an abuse of process as he is in effect re-litigating a point of law which has been determined in HCA 309/2015, rather than advancing or safeguarding any public interest or constitutional rights. 

80.  The question of costs at this stage of judicial review proceedings was addressed by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No2) (2014) 17 HKCFAR 841 at §17(1) to (6), where it was held that as leave applications for judicial review were meant to be ex parte, an unsuccessful applicant would generally not be ordered to pay the costs of a putative respondent or putative interested party saved in special or unusual circumstances.  It was explained that whilst the court retained a broad discretion as to costs as the particular circumstances of the case and justice warranted, such discretion should be sparingly exercised only for good reasons, which included the reason leading the opposing party to attend the hearing; whether the party’s attendance had been of material benefit to the court; and the underlying lack of merits of the application, bearing in mind the context that the court had refused to grant the leave sought.

81.  The applicant was put on notice of the possibility of being liable for costs, particularly because of the issue of the availability of an alternative effective remedy in the appeal he had instituted against the decision of Au-Yeung J in HCA 309/2015.

82.  The putative respondent and the putative interested party were invited to attend and participate in the oral hearing that had been requested by the applicant on the basis that leave was initially refused on the papers.  Whilst they did not attend the hearing they submitted a detailed written argument in response to the applicant’s written argument.  They were invited to assist the Court in providing a background to the case because of its history and the related proceedings.  The applicant sought to address the issue of alternative effective remedy but his arguments were unconvincing as they were for his grounds for review. 

83.  There is force in the costs submission from the putative respondent and putative interested party, I have decided to award costs against the applicant but in the sum of $30,000.  I do so principally because I invited the parties to participate in the ex parte proceedings to assist if they wished in providing a fuller background and picture to the matter which was necessary because of the content and state of the applicant’s application.