CHOY BING WING v. BUILDING AUTHORITY OF THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, CHINA AND OTHERS

HCMP 2467/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2467 OF 2011

(ON AN INTENDED APPEAL FROM HCA NO. 2458 OF 2007)

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BETWEEN

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DECISION

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Hon Kwan JA (giving the decision of the Court):

1.  This is an application of Choy Bing Wing for leave to appeal a decision of Deputy Judge Au-Yeung given on 4 October 2011. In that decision, the judge dismissed Mr Choy’s application for her to recuse and dismissed his appeal against a decision of Master Ho made on 26 July 2011. The master’s decision was (1) the dismissal of Mr Choy’s application for him to recuse and (2) to make absolute a charging order against Mr Choy’s property in Queen’s Road Central in favour of three judgment creditors who were the 1^st to 3^rd defendants in the proceedings below (HCA 2458/2007). Mr Choy was the plaintiff in that action.

2.  Mr Choy applied for leave to the judge to appeal her decision to the Court of Appeal. The judge refused leave on 15 November 2011 for the reasons she gave in a detailed judgment on the same day. He renewed his application to this court by a summons issued in the present proceedings on 29 November 2011, supported by his affirmation of the same date exhibiting some correspondence between him and the court from September to November 2011, a “statement of reasons why leave should be granted” and “skeleton arguments as to why leave to appeal should be granted.”

3.  No statement in opposition was filed by the 1^st to 3^rd defendants to the present application.

4.  Pursuant to Order 59 rule 2A(5) of the Rules of the High Court, the Court of Appeal may determine this application without a hearing on the basis of the papers before the court. Having considered the documents filed in these proceedings and the relevant documents in the proceedings below, we think it appropriate to deal with the application without a hearing.

5.  The background giving rise to the application may be summarised as follows.

6.  On 21 November 2007, Mr Choy issued the writ in HCA 2458/2007 against five defendants. All the defendants took out applications to strike out the statement of claim. On 19 December 2007, Registrar Au-Yeung (as she then was) adjourned all the strike out applications to a judge in chambers for argument and gave directions for the filing of evidence in those applications. On 28 December 2007, Mr Choy filed a summons for an order that the action be discontinued, that all pending interlocutory applications be withdrawn by consent, and that there be no order as to costs.

7.  On 7 January 2008, having heard Mr Choy, government counsel for the 1^st to 3^rd defendants, the solicitors for the 4^th defendant and the solicitors for the 5^th defendant, the registrar ordered that the action be discontinued against all five defendants, all pending interlocutory applications be withdrawn by consent, and that the costs of the action be paid by Mr Choy to the 1^st to 5^th defendants, to be taxed on a party and party basis if not agreed. The costs of the 1^st to 3^rd defendants were taxed at $61,566 under an allocatur dated 18 February 2009.

8.  As the taxed costs were not paid by Mr Choy, on 13 December 2010 government counsel acting for the 1^st to 3^rd defendants applied to court for a charging order on his beneficial interest in a property registered in his sole name. A charging order nisi was made by a master on 22 December 2010. Mr Choy opposed the application to make absolute the charging order, contending that the order giving rise to the taxed costs was not final but interlocutory and was under appeal, so the court should not grant a charging order absolute against his property at that stage. That application was adjourned to Master Ho for argument.

9.  Mr Choy objected to Master Ho hearing the application and sought the master’s recusal on the ground that the master had dealt with certain matters in the action, in particular that the master had refused to release certain documents requested by him in taxation proceedings. At the hearing on 26 July 2011, Master Ho dismissed the recusal application and made the charging order absolute.

10.  Mr Choy appealed the decision of Master Ho. This was heard by the judge on 4 October 2011. Mr Choy also sought the recusal of the judge on the ground that the judge had been involved in certain hearings attended by him and when acting as the registrar she had refused to release to him tapes and transcripts of proceedings as he had requested.

11.  Mr Choy walked out of the court room when the judge was preparing reasons of her decision on his application for recusal and did not return to pursue his appeal. The judge dismissed his application holding that nothing advanced by him would suggest any possibility of bias and that a fair minded and informed observer would not have concluded there would be a real possibility of bias on the part of the judge in the circumstances. The judge went on to deal with his appeal in his absence. She held there was no sufficient basis for alleging that Master Ho was or could be biased against him, and the argument that the order giving rise to the taxed costs was not final but interlocutory on the basis it was under appeal was misconceived. Mr Choy had not shown cause why the charging order should not be made absolute. She therefore dismissed his appeal from the decision of Master Ho.

12.  In seeking leave to appeal the judge’s decision of 4 October to the Court of Appeal, Mr Choy contended that important points of law are involved and that public interest and justice would require that leave be given. He formulated these three questions of law in his summons:

“(a) Whether it is contrary to legal principles for a Judge to refuse release of transcripts and/or tape records to a party for hearings conducted on 19 December 2007 and on 4 October 2011 for appeals;

(b) Whether it is contrary to legal principles and against public interest for a Judge who had dealt with the same case of a party previously and being prima facie found of judicial wrongdoing, to refuse to recuse and to continue to deal with the same case on subsequent and consequential matters; and

(c) Whether a Judge can make a Charging Order Absolute by obstruction of justice in turning a blind eye to complaints of hearsay affirmations without recusal but pressing ahead hearing the party concerned with hearsay affirmations for the complaints against her.”

13.  There is no evidence of the judge “being prima facie found [guilty] of judicial wrongdoing”. None of these questions would have any reasonable prospect of success on appeal. In her decision in refusing leave to appeal on 15 November 2011, the judge has dealt with each of these questions comprehensively. We fully agree with her reasons.

14.  Insofar as Mr Choy has not mentioned his earlier request for the transcript and tape recording of the hearing on 19 December 2007 when he argued question (a) before the judge on 15 November 2011, we have perused the earlier correspondence with regard to the relevant circumstances and see no merit or valid complaint in the registrar’s refusal to release the transcript and tape recording by letter dated 21 December 2007.

15.  There is also nothing in Mr Choy’s contention that the judge had given different reasons in October 2011 and November 2011 for not responding to his letters to the court.

16.  We dismiss the application for leave to appeal to the Court of Appeal. As this application is wholly without merit, we make a further order under Order 59 rule 2A(8) that Mr Choy may not pursuant to rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes. We make no order as to the costs of this application.