SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP 1313/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1313 OF 2010

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BETWEEN

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D E C I S I O N

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1.  There are two applications before me. The first in time is the defendant’s application filed on 12 October 2012 for leave to appeal against my decision given on 9 October 2012. The second application was filed on 24 October for an order for me to recuse from hearing the first application.

2.  My decision on 9 October was to dismiss the defendant’s appeal against the decision of Master Ho given on 11 September 2012. Master Ho’s decision on 11 September was to adjourn to 9 October at 9:30 am a call-over hearing of taxation of costs payable by the defendant, and to direct the defendant to file his list of objections to the items of costs claimed within 14 days from that day failing which the plaintiff’s bill be taxed as drawn.  The defendant filed his notice of appeal on 17 September seeking to overturn this order on appeal.

3.  I heard the appeal on 5 October and gave my decision on 9 October dismissing the appeal.  My reason was in para 9 of the decision which reads:

“9. Having considered the defendant’s affirmations and amended written submissions, I do not think he has any ground to pursue this appeal. None of the articles of the Basic Law he cited has any relevance to the taxation proceedings. If he is dissatisfied with the costs order that was made in the contempt proceedings, he should have appealed against that order or the decision on the contempt proceedings. The taxation proceedings are conducted to assess the amount of costs payable under the costs order. There is no consideration of the merits of that order in these proceedings. The defendant’s attacks, which are aimed at that order, cannot affect the conduct and progress of the taxation proceedings.”

4.  The defendant then filed the first application on 12 October seeking leave to appeal against my decision.  His grounds of appeal as mentioned in the application are that (1) it is contrary to legal principles for me to refuse to deal with his objections to the taxation proceedings on the ground that those proceedings are in contravention of the Basic Law; (ii) it is contrary to legal principles and public interest for me to turn a blind eye to his complaints of persecution against him, to ignore violations of the safeguards against the abuse of the right and freedom of Hong Kong residents provided in the Basic Law and to reach legal conclusions to cover up the persecutions; and (iii) whether I can in the exercise of the power and functions conferred by the Basic Law claim that taxation proceedings can be immune from the Basic Law.

5.  On 24 October, the defendant filed the second application seeking an order that I be recused from further involvement in these proceedings regarding the defendant and that his application for leave to appeal be heard by another judge that he may find agreeable.

6.  He filed his 4th affirmation in support of this application.  He said in the affirmation that on 8 October near close of business, my clerk telephoned his company and left message for him to collect from the court my decision on his appeal at 9:15 am on 9 October.  However, he chose not to collect the decision by hand, but to wait for it to come by post.  He later found out that the taxation proceedings, which had been adjourned to 9:30 am on 9 October by Master Ho but was subject to his appeal, did take place despite his absence.  Master Lai, who conducted that hearing, also taxed the bill as drawn at HK$545,694 (for want of objection from him).  He therefore concluded that there was a conspiracy to cheat him of his money.  He further said in his affirmation that I had no jurisdiction to carry out any judicial duty in this case and I had to recuse from my decision of 9 October.

7.  I deal with the application to recuse first.  The lodging of an appeal by the defendant against the direction of Master Ho given on 11 September did not operate as a stay of that direction.  The taxation

8.  Despite the appeal against Master Ho’s decision was to be heard on 5 October and the taxation call-over hearing was to take place on 9 October at 9:30 am, nobody saw it necessary to apply for the adjournment of the latter hearing.

9.  After hearing the appeal on 5 October, I was of the view that it had no merit and I decided to dismiss it.  In order to make it clear for the benefit of all parties that the taxation hearing on 9 October at 9:30 am would not be subject to the uncertainty of a subsequent decision on the defendant’s appeal from Master Ho’s direction, I further decided to hand down my decision on the appeal before the commencement of the taxation hearing though on the same day.

10.  In the premises, I see nothing improper in my handing down the decision at 9:15 am on 9 October.  My decision would have been the same whether I handed it down earlier or later.  There is therefore no ground in the defendant’s application for me to recuse from his application for leave to appeal.  I therefore dismiss this application. 

11.  I have also heard the parties’ arguments on the costs of this application.  I order the costs to follow the event; namely that the defendant do pay the costs of this application to the plaintiff.  I also assessed the amount summarily at $4,000 which is payable forthwith.

12.  Having decided that I should not recuse myself from the application for leave to appeal, I now deal with the application for leave to appeal.  I refer to para 9 of my decision as quoted above.

13.  I have made it clear that the decision of Master Ho made on 11 September in the course of taxation proceedings had nothing to do with the merits of the costs order itself.  The objections of the defendant addressed to the taxation proceedings were therefore misplaced.  The objections should have been addressed to the costs order itself. 

14.  This application for leave is made under section 14AA of the High Court Ordinance and Order 59 rule 2B of the Rules of the High Court.  Section 14AA(4) provides:

‘(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that —

(a)  The appeal has a reasonable prospect of success; or

(b)  There is some other reason in the interests of justice why the appeal should be heard.’

It has been explained in the case of SMSE v KL [2009] 4 HKLRD 125 at para 17 per Le Pichon, JA that “reasonable” means more than fanciful but without having to be probable.

15.  For the same reason given in my decision of 9 October, I do not see any prospect of success in the defendant’s proposed appeal.  I therefore dismiss this application. 

16.  I have also heard the parties’ arguments on costs of this application.  I also make the usual order that costs to follow the event and that the defendant should pay the plaintiff the costs of this application. I also assess these costs summarily at $4,000 which are payable forthwith. 

17.  I further take this opportunity to assess summarily the amount of costs payable by the defendant to the plaintiff under the costs order in my decision of 9 October.  Though the draft bill of costs filed by the plaintiff mistakenly stated the date of the order as 5 October, I have at the hearing on 7 November corrected this to 9 October and the defendant was told about the mistake. 

18.  I have also invited the defendant to submit on the costs claim in this bill.  The defendant submitted that I should better leave this taxation to a future day until after the exhaustion of his appeal against my decision.  I do not accept the defendant’s argument as the application for leave to appeal does not operate as a stay of execution of the decision. 

19.  I therefore proceed with the assessment.  I assess the amount of costs payable by the defendant under the costs order in my decision dated 9 October 2012 at $14,443.