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

CACV 172/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2013

(ON APPEAL FROM HCA NO. 1994 OF 2012)

________________________

________________________

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1. The Plaintiff commenced proceedings against the Defendant in October 2012 to challenge the disciplinary proceedings by the Hong Kong Institute of Engineers against him. His claim was struck out by a master on 31 May 2013. The Plaintiff appealed against that decision. That appeal was heard and dismissed by Mimmie Chan J on 1 August 2013. Reasons for Decision were handed down by the judge on 12 August 2013.

2. On 19 August 2013, the Plaintiff, acting in person, served a Notice of Appeal, appealing against the decision of the judge. At the time of the lodging of Notice of Appeal, the Plaintiff received the following set of standard directions from the Registrar of Civil Appeals:

“1. Within 14 days of the setting down of an appeal, an appellant is to submit to the Registrar of Civil Appeals an appeal bundle containing only the documents relevant to the hearing of the appeal.

2. The above time limit shall be strictly followed. An application for an extension of time for lodging an appeal bundle shall be made to the Registrar of Civil Appeals by letter, setting out the reason for the extension sought.

3. In the event that an appellant fails or refuses to comply with any of the directions given by the Registrar in relation to the preparation and lodging of the appeal bundle, the Registrar may vacate the date fixed for the hearing of an appeal or refer the matter to the Vice President of the Court of Appeal or a single Justice of Appeal for his or her further directions.

4.  The above directions are without prejudice to any other directions the Court of Appeal or the Registrar of Civil Appeals may give in accordance with Practice Direction 4.1.”

3. Though he filed a Notice of Setting Down of an appeal on the same date, he wrote to the Chief Judge and the Registrar on 21 August 2013 in the following terms:

“ I refer to the step to file the Draft Index within 14 days of setting down of the Appeal and point out that the same is not meaningful unless and until a really just and proper appeal can be held. Almost all of the Judges have encounters with me before and have acted against me without regard to the spirit of the law in their conspiracies to defraud Choy Bing Wing.

2.  Please wait till I have only honest and fair Appeal Judges to handle my subject appeal.  Otherwise, I cannot proceed further in accordance with my rights guaranteed under the Basic Law, the safeguards of my rights, copy of such safeguards enclosed.”

4. In view of the intimation by the Plaintiff, the Registrar replied as follows on 30 August 2013:

“1. If the Appellant needs more time to prepare draft appeal bundle, the Appellant can make the application for extension of time by way of letter with supporting reasons for the consideration of Registrar of Civil Appeals.

2. The Appellant should note that the Registrar of Civil Appeals will not grant leave to the Appellant to fix date for the appeal hearing until draft appeal bundles have been approved.

3.  The Appellant should also note that when he is granted leave to fix date for the appeal hearing, if he has any objection to the composition of the Court, he can make the application for the Court’s consideration.”

5. On 2 September 2013, the Plaintiff wrote to the Registrar about several appeals, one of which is the present one.  On the present appeal, he made a request for the transcript and tape for the hearing before the judge.  He also advanced serious and abusive attacks against various judges in the letter. 

6. On 10 September 2013, a master directed that the time for the Plaintiff to submit draft appeal bundles be extended to 30 September 2013.

7. On 11 September 2013, the Plaintiff wrote to the Registrar reiterating that he needed to have the transcript and tape of the hearing before the judge for the preparation of the appeal bundle. 

8. There was then a series of correspondence over the release of the transcript.  It is not necessary to recite the correspondence in this judgment.  It is sufficient to highlight the following,

(a) The transcript was not made available by 30 September 2013;

(b) The Plaintiff did not produce the draft appeal bundle by 30 September 2013.

9. In the meantime, solicitors for the Defendant wrote to the court asking the appeal be dismissed due to the non-compliance with the directions of the Registrar.

10. The matter was brought to the attention of Lam VP who gave the following directions on 29 October 2013:

“1. Transcript of the hearing of 1 August 2013 be produced and copy be supplied to Choy Bing Wing on payment of prescribed charges. The Court shall notify him when the transcript is ready for collection.

2. Time for Choy Bing Wing to comply with the Registrar’s direction for submission of draft bundle be extended to 21 days from the date when he is notified of the availability of the transcript.

3. On default of compliance by Choy Bing Wing with para 2 above, the appeal shall be listed for consideration as to whether it should be struck out for want of prosecution, estimated length of hearing: ½ hour.”

11. On 11 November 2013, the Registrar notified the Plaintiff that the transcript was available for collection on payment of the prescribed fees of $412.40.

12. Despite such notification, the Plaintiff did not collect the transcript and took no step in producing the draft appeal bundle for the approval of the Registrar.  Instead, he wrote a letter of 18 December 2013 addressed to the Registrar accusing the directions given as without authority and cheating, and the judge as “criminal judge”.  

13. Pursuant to paragraph 3 of the directions of 29 October 2013, the appeal was listed for considering whether it should be struck out for want of prosecution.

14. The power of the Registrar to give directions on the preparation of appeal bundles is expressly provided for under Order 59 Rule 9(3).  As stated in that rule, the power is to be exercised for the purpose of securing the just, expeditious and economical disposal of the appeal.  It is in line with the court’s duty to manage cases under Order 1A Rule 4 that these directions should be given.  It is also the duty of a litigant (as well as his legal representative) to comply with such directions as the fulfilment of his duty under Order 1A Rule 3. 

15. Though case management directions for appeals are usually given by the Registrar (or a master), judges in the Court of Appeal also have the power to case-manage appeals.  Prior to the Civil Justice Reform, such power stems from the inherent jurisdiction of the court to regulate proceedings before it and the power under Order 59 Rule 10(1); see Final Report of the Chief Justice’s Working Party on Civil Justice Reform paras 673-675.  Nowadays, this power is reinforced by Order 1A Rule 4 and Order 1B Rule 1.  The court’s duty on active case management is equally applicable to appeals as in first instance cases.  The expeditious and efficient disposal of appeals is important in the proper administration of justice. 

16. The role of the Vice-President and a Justice of Appeal in case management of appeals is also recognised in Practice Direction 4.1 paras 35 and 36. 

17. Therefore, Lam V-P did have the power and authority to issue the directions on 29 October 2013.  The Plaintiff has a duty to comply with such directions.  The non-compliance with such directions in the circumstances of the present case is clearly a contumelious default on the part of the Plaintiff.  If his real concern was about the lack of the transcript, it is difficult to understand why he did not collect the same after it became available.  No explanation has been offered by him as to his default in this regard.  It is also a deliberate attempt by the Plaintiff to delay the disposal of the appeal because his refusal to produce the draft appeal bundle for approval hampered the listing of the appeal proper for final hearing.  From his correspondence, it seems he is reluctant to have the appeal heard because of his misguided perception as to the impartiality of the members of the Court of Appeal.  The Plaintiff has no proper basis for his allegations of “judicial cheatings” and “collusions”.  What he is trying to do is an abuse of the process of the court which has caused unnecessary costs to be incurred by the Defendant.  It also caused a wasteful drain on valuable judicial resource which should be more profitably deployed on other cases.  We are satisfied that no fair minded and informed observer would consider that there is any risk of his appeal not being heard by an impartial Court of Appeal.  The biased and irrational views of the Plaintiff (even if they are expressed in the most inappropriate and virulent languages) cannot give him the right to choose the composition of the Court of Appeal hearing his case. 

18. The Court of Appeal has the power to strike out an appeal on the ground of abuse of process, see Hong Kong Civil Procedure 2014 para 59/3/6; Hong Kong Civil Court Practice Vol 1A, para 5476.3.  It includes a striking out for want of prosecution (see Incorporated Owners of Tuen Mun Hung Cheung Industrial Center v United HK Ltd CACV 652 of 2000, 12 July 2001; Interasia Bag Manufacturers Ltd v Commissioner of Inland Revenue CACV 400 of 2004, 6 Nov 2009; Re Pattini Kuttige Sampath Thushara Nonis CACV 49 of 2013, 4 Sept 2013; Re Raman Muthuchamy CACV 51 of 2013, 5 Sept 2013), which is a form of abuse of process (see Liquidators of Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935).

19. On the facts of the present case, in view of the abusive conducts of the Plaintiff towards the court and his refusal to comply with proper directions designed for the expeditious and efficient disposal of the appeal and his avowed refusal to have the appeal being heard by a court not of his choice, we are of the view that his appeal is liable to be struck out as an abuse of process.  But we would give him one more chance to comply with the directions with the hope that he might repent in light of what we have said in this judgment. 

20. We would grant him an extension of time up to 5 March 2014 to produce the draft appeal bundle to the master for approval. Unless he does so, his appeal will be struck out without further order. 

21. We would also make a costs order nisi that the Plaintiff shall pay the costs of the Defendant in respect of the striking out of the appeal, such costs to be taxed and payable forthwith.