SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP 2671/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2671 OF 2013

(ON AN INTENDED APPEAL FROM HCMP NO. 260 OF 2013)

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

1.  This is an application of the defendant for leave to appeal against the judgment of A Chan J on 20 August 2013 (“Judgment”), in which the judge dismissed his appeal against the decision of Master M Wong on 18 June 2013. By his decision, the Master dismissed the defendant’s application to strike out the originating summons of the plaintiff to enforce the costs orders made against him in three sets of proceedings (being HCA 2351/2005, HCA 125/2005 and HCA 2468/2007) and the defendant’s application for the Master to recuse himself.

2.  The defendant applied to the judge for leave to appeal against the Judgment to the Court of Appeal.  This was refused in a decision handed down on 2 October 2013 (“Decision”).

3.  The defendant renewed his leave application to this court by a summons in the present proceedings issued on 11 October 2013.  He contended there are five important questions on points of law involved in the intended appeal as set out in para 1 of his summons.  We note that these are the same five questions set out in his summons for leave to appeal heard by the judge.  He has filed an affirmation in support of the present application exhibiting his written submissions at the hearings before the judge on 7 August 2013 and 24 September 2013, a statement of the reasons why leave should be granted, and his skeleton arguments dated 11 October 2013.

4.  We exercise our power under Order 59 rule 2A(5) of the Rules of the High Court to determine this application on paper without an oral hearing.

5.  It is provided in section 14AA(4) of the High Court Ordinance, Cap 4 that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 at §17).

6.  There is plainly no basis for the defendant to strike out the originating summons of the plaintiff to enforce the costs orders in the three sets of proceedings.  As the judge has said in the Judgment at §6, the defendant has not appealed against any of the costs orders so he must abide by them.

7.  As for his recusal application, his allegations of dishonesty and actual bias against Master M Wong are simply unfounded.

8.  The five points of law raised by him in para 1 of his summons have no bearing to the strike out application, the recusal application or the Judgment being the subject of the intended appeal.

9.  In his statement of reasons why leave to appeal should be granted, the defendant stated that there is “pressing need” to analyse the true ambit of the terms “sentenced to prison” and “committed to prison” in criminal proceedings, and “whether quasi-criminal proceedings” are in fact not criminal proceedings.  These questions would appear to arise from a remark made by the judge at the hearing in August 2013 to the effect that the defendant had previously been convicted.  The defendant took exception to this at the time and brought up the matter again when he applied to the judge for leave to appeal, see the Decision at §4.  He pointed out to the judge that he has not been convicted of any criminal offence and that he was committed to prison for contempt of court.  We do not think the remark of the judge that the defendant had been “convicted” has any relevance to the Judgment being the subject of the intended appeal.

10.  No arguable grounds of appeal have been raised.  There is no other reason in the interests of justice why the intended appeal should be heard.  We dismiss the defendant’s application for leave to appeal.

11.  As the application is wholly without merit, we make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

12.  We make an order nisi that the defendant is to pay the plaintiff’s costs of this application, which we assess summarily on a gross sum basis at $10,000.  Any party who seeks to vary the order nisi shall lodge a written submission within seven days hereof, failing which the order shall become absolute.