CHAN KEI FUNG ERIC v. MATTHEW LEUNG AND OTHERS

HCAL 1044/2024

[2024] HKCFI 1881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1044 OF 2024

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REASONS FOR DECISION

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A.  Introduction

1.  The Applicant is a party to other litigation in the High Court.  He is plainly unhappy with the way in which that litigation has gone for him so far, including procedurally.  Hence these proceedings.

2.  By Form 86 dated 3 July 2024, the Applicant seeks leave to apply for judicial review in relation to certain court orders or decisions arising in the course of that litigation, and also to the appointment of one of the presiding judicial officers.

3.  At his request made in the Form 86, I granted the Applicant an oral hearing of his application, and fixed the date for 30 August 2024.  The Applicant appeared in person, with the benefit of a Chinese/English interpreter provided by the Court.

4.  He had previously filed additional – and lengthy – written submissions dated 23 August 2024.  They largely repeated what he had said beforehand (in the voluminous papers filed with the application), and covered additional matters which, insofar as it may be necessary or helpful, I can also canvass below.

5.  With the benefit of the full written submissions (which I informed the Applicant I had read, so that there was no need simply to repeat them), the Applicant was able to make short, focused and courteous oral submissions.

6.  At the end of the hearing, I dismissed the application for leave to apply for judicial review, for reasons which I said I would reduce into writing and hand down later (once interpreted from English to Chinese).  I also made no order as to costs.

7.  These are my Reasons for Decision.

B.  Background

8.  For the purposes of these proceedings, there is no need to go into all of the background information provided or asserted by the Applicant in his Form 86 and in his written submissions.  The following summary suffices.

9.  The Applicant is a registered social worker.  He was employed at the Chuk Lam Ming Tong Care and Attention Home for the Aged, which the Applicant describes as a subsidiary undertaking of Chuk Lam Ming Tong Limited (“Company”).

10.  A dispute arose as to whether, and if so when, the employment of the Applicant was terminated by the employer.  It is the Applicant’s position that he continued to be employed for at least a lengthy period after he received a notice of termination of employment contract in mid-August 2015.

11.  Litigation has apparently ensued as to the operation of the Company, and the validity of company resolutions to terminate, to cancel termination, or to confirm termination of the Applicant’s employment.  However, that litigation is not central to the present proceedings.

12.  The litigation relevant for present purposes is to be found in HCA 2782/2015 and HCA 142/2016 (consolidated).

13.  HCA 2782/2015 is a claim by the Company as plaintiff against the Applicant as defendant.  The claim is made in tort, seeking (amongst other things) (1) damages for harassment and nuisance caused by the Applicant, (2) an injunction to restrain the Applicant from causing and/or procuring harassment and nuisance to the Company and/or its servants and employees, (3) a declaration that the Applicant is not an employee of the Company, and (4) an order that the Applicant return certain items to the Company.  A Statement of Claim subsequently filed appears to have extended the claim (amongst other things) also to seeking damages for trespass.

14.  HCA 142/2016 is a case transferred from the Labour Tribunal.  The original Labour Tribunal proceedings, LBTC 3723/2015, comprised a claim made by the Applicant as claimant against the Company as defendant for arrears of wages and other employment allowances.  The transfer to the High Court was ordered on 30 December 2015.  The consolidation of the two High Court actions was ordered on 19 February 2016.

15.  The Applicant says that the “trial proper” of the consolidated actions was conducted over 2½ days between 24 and 27 May 2022. (Incidentally, I note that the Applicant has pointed out that the original time estimate was 4 days, in a way which suggests some criticism that it was dealt with more quickly.  If criticism was intended, it was probably misplaced. Parties to litigation have no right to take up all of the time originally estimated, where hearings can often be dealt with properly and efficiently in a shorter time.)

16.  In its decision after trial, the Court declared that the Applicant was not an employee of the Company after 17 August 2015, and further ordered him to return various items.  The Company’s other claims were dismissed, as was the Applicant’s counterclaim.  The Applicant was ordered to pay the Company’s costs, including costs reserved, which were to be taxed on the party and party basis.

17.  I think that there has been no appeal from that decision.  In any event, this Court exercising its judicial review jurisdiction does not act as an appellate court.  Nor is it the court which was, or is, tasked with resolving the matters in the underlying litigation.  Instead, the Applicant’s complaints stem from what followed.

18.  It seems that there was the filing of the skeleton bill of costs for taxation, and the Applicant’s list of objections, and an application was made to list the hearing for taxation of the bill of costs.

19.  At the first hearing of taxation, Matthew Leung, Deputy Registrar (i.e. the 1^st Putative Respondent) adjourned the matter to 8 April 2024 for a one-hour hearing to deal with two preliminary issues raised by him, namely (a) whether the receiving party’s claim of costs was in contravention of the indemnity principle, and (b) whether it was necessary for the receiving party to disclose the receipt and agreement for the fees the solicitor’s firm charged its client.  As the Applicant has identified, the oral hearing was held precisely so that the Master could hear the Applicant’s submissions/views.

20.  After the adjourned hearing, which in fact apparently lasted far longer than the one hour set aside for it, the Deputy Registrar (a) held that the Applicant had failed to prove that the Company’s claim was in contravention of the indemnity principle, and (b) refused disclosure of the documents requested by the Applicant.  The Deputy Registrar ordered the Applicant to pay costs, which he summarily assessed at HK$92,600, payable within 28 days.

21.  The full taxation was adjourned for hearing by a Master on 7 May 2024, when it was then ordered that the taxation be further adjourned to a date to be fixed, with two days reserved.

22.  On 14 May 2024, the Company’s solicitors informed the Applicant of an appointment made at 11:30am on 22 May 2024 before Ms Rita Chow, Senior Judicial Clerk at the High Court Registry (i.e. the 2^nd Putative Respondent) to fix the date for taxation, with two days reserved.

23.  As the Applicant had lodged an appeal on 20 May 2024 against the 7 May 2024 order – which the Applicant complains was never filed or served on him – the Applicant chose to inform Ms Chow that he would not attend the listing appointment, and asked her not to list the hearing on “an ex parte basis”.

24.  However, the appointment went ahead and Ms Chow did fix/list the taxation hearing for two days commencing 15 October 2024.

25.  On 15 May 2023, the Applicant filed new proceedings in the Labour Tribunal, LBTC 1554/2023, claiming salary in arrears, sickness allowance, additional wages, interest, final unpaid payment, and an order for resumption of duty or to be re-employed.

26.  That matter came on for review on 24 May 2024 before Ms Jennifer Ng, Deputy Presiding Officer.  Ms Ng was gazetted as having been appointed for the period from 9 March 2024 to 7 June 2024, by the Chief Justice (i.e. the 3^rd Putative Respondent) in the exercise of powers conferred to him under section 5A of the Labour Tribunal Ordinance Cap 25 (“LTO”).  However, the Applicant says that on 21 May 2024 he checked the Hong Kong Bar Association’s List of Barristers and the Law Society of Hong Kong’s Law List of members with or without practising certificates, but neither contained Ms Ng’s information.  The Applicant says that when asked Ms Ng at the hearing why he could not find her name on those lists, she declined to answer his question, and she went on to give her findings/orders in respect of the review hearing.

27.  In the meantime, on 20 May 2024, the Applicant wrote to the Deputy Registrar seeking CDs of the digital audio recordings of the hearings held on 21 December 2023, 8 April 2024 and 7 May 2024 for the purpose of legal proceedings.  By letter dated 24 May 2024, the Deputy Registrar requested the Applicant to “provide detailed reasons as to why full audio recordings of the hearings are required and clarify what ‘legal proceedings’ they are for”.  The Applicant points out this is in contrast to a different Master granting recordings of the hearings on 7 May 2024 and 18 June 2024, upon his request.

C.  Intended Grounds for Review

28.  I would first point out that, by way of introduction to his written submissions, the Applicant has stated that this application is a “professional procedure for [him] to carry out ‘social work’ independently in order to realise Part 1 - Basic Values and Beliefs of the Code of Practice for Registered Social Workers”.

29.  This is a point the Applicant also sought to emphasize in his oral submissions.  The Applicant stressed that he has brought his application acting in his capacity of a registered social worker, under and in accordance with the Code of Practice – seeking to ensure proper governance of the Judiciary for the benefit of all court users.  Whilst I am prepared to accept that stated motivation for these proceedings, that does not of itself identify the necessary basis for the grant of leave to apply for judicial review.  Indeed, as the Applicant also correctly recognised, the Court will be concerned to see whether there are any identified reasonably arguable public law wrongs which can demonstrate a realistic prospect of success as might justify the grant of leave to apply for judicial review.

30.  In the Form 86, the Applicant has divided his intended grounds for review by reference to the individual putative respondents.  In summary, those grounds are as follows:

The Deputy Registrar

(1)  Ground 1: The 8 April 2024 hearing violated duties of candour and procedural justice, and the requirements of the judicial oath, because of collusion between the Deputy Registrar with counsel for the Company to conceal correspondence between solicitors in relation to the bill of costs and discussions on the disputes between solicitors from a mention/call over on 21 December 2023 to 8 April 2024, of which the Applicant has no knowledge.

(2)  Ground 2: The Deputy Registrar unlawfully and unreasonably refused to comply with the principle of judicial transparency and Order 42 rule 5B, which required reasons to be given in respect of the order made at the substantive hearing on 8 April 2024.

(3)  Ground 3: The Deputy Registrar unlawfully and unreasonably refused to allow the Applicant more than 15 minutes to read the statement of costs for summary assessment, required him to make oral objections on the spot, and immediately gave a summary assessment of costs in the sum of HK$92,600.

(4)  Ground 4: The Deputy Registrar unlawfully and unreasonably imposed disproportionate and inconsistent conditions refusing the Applicant’s application for complete CD audio recordings of the hearings on 21 December 2023 and 8 April 2024.

The Senior Judicial Clerk

(5)  Ground 5: Ms Chow unreasonably and unlawfully abused power by listing the two-day taxation hearing on an ex parte basis in the absence of the Applicant.

The Chief Justice

(6)  Ground 6: The Chief Justice unlawfully exercised the power conferred by section 5A of the LTO in appointing Ms Ng as a Deputy Presiding Officer in contravention of Basic Law Articles 48(6), 88, 92 and 104.

31.  Most of the forms of relief sought by the Applicant relate to quashing of the various orders or decisions, though he also seeks mandatory orders relating to the production of solicitors’ correspondence and the CDs of the digital audio recording of the hearings on 21 December 2023 and 8 April 2024.  Lastly, the Applicant seeks a ‘protective costs order’.

32.  I can deal with the intended Grounds, each in turn.  As will be seen, none of them have any merit.  There are no reasonably arguable grounds for review with any realistic prospect of success as might justify the grant of leave to apply for judicial review.

D.  No Merits in Intended Grounds of Review

D.1  Grounds 1 to 4

33.  This Court exercising its judicial review jurisdiction does not act as an appellate court from decisions of the Deputy Registrar.

34.  If the Applicant was dissatisfied with any decision made by the Deputy Registrar, he might have appealed from those decisions, and it would have been open to him to include as possible grounds of appeal his complaints about the way in which the hearings were conducted and/or the decisions reached.

35.  In other words, at least as to Grounds 1 and 2, there was an available alternative remedy open to the Applicant, and/or the Deputy Registrar’s decisions are not amenable to judicial review. Similarly, if complaints amount to a criticism of general conduct, there are established means for making complaints about judicial conduct.  In any event, I see no reasonably arguable public law grounds of complaint under any of the heads which the Applicant identified overall of illegality, Wednesbury unreasonableness or procedural impropriety.

36.  As to the complaint in Ground 2 about lack of reasons, there is no obligation on the Deputy Registrar to give written reasons for a decision, and if a decision is given immediately after argument at the hearing itself attended by the parties – as the relevant decision in this case was – the reasoning for the decision may be obvious, and may be explained simply from brief reasons delivered orally.

37.  As to Ground 3, it was plainly open to the Deputy Registrar to make a summary assessment of costs at the hearing, and appropriately to invite the Applicant to make any objections to the statement of costs put forward, with the benefit of a short adjournment to consider what objections he might make.  As its name identifies, a summary assessment of costs is intended to be dealt with summarily, that is relatively quickly and adopting a reasonably broad-brush approach, obviously informed by the Deputy Registrar’s significant experience of dealing with questions of costs.

38.  As to Ground 4, the Applicant’s complaint is also based upon a misreading of the Deputy Registrar’s response to the Applicant’s request for the audio recording of the hearings.  The Deputy Registrar merely asked the Applicant to provide reasons why a full audio recording of the hearing was required, and to clarify what “legal procedural purposes” it served.  It seems that the Applicant decided not to provide those reasons or clarification, but instead chose to make this challenge – apparently partly on the erroneous basis that another High Court Master approved the provision of an audio CD of recordings of hearings on another occasion.

D.2    Ground 5

39.  This proposed Ground 5 is utterly without merit.  The Applicant was invited to participate in the fixing of the two-day taxation hearing, and notified of the listing appointment made for that purpose.  The Applicant chose not to attend the appointment, and it does not matter for what reasons he chose not to attend.  It is irrelevant that the Applicant has launched an appeal by which he seeks to set aside what he says is the unsealed order dated 7 May 2024 mentioned in the letter inviting the Applicant to attend the listing appointment.  Nor does the fixing of dates conflict, as the Applicant suggests they do, with the appeal hearing scheduled for 10 September 2024 for a request to grant him a protective costs order.

40.  Nor was there any ex parte decision.  Instead, Ms Chow took the administrative step of listing a hearing which a Master had apparently ordered to be fixed.  Ms Chow was not required to wait for the Applicant if, as happened, he chose not to attend.  Nor was she required to accede to his request not to proceed with the fixing of the hearing in his absence.

41.  The absence of merit in this proposed Ground is also evident from the fact that the Applicant has made no particular complaint about the dates which were actually fixed for the two-day taxation hearing in October later this year.

D.3    Ground 6

42.  As to Ground 6, the Applicant’s argument on “unconstitutionality” was based upon his misinterpretation of the cited Articles of the Basic Law, and of section 5A of the LTO.

43.  Articles 48(6) and 88 of the Basic Law concern the Chief Executive’s powers and functions to appoint and remove judges in accordance with legal procedures and the appointment of judges by the Chief Executive on the recommendation of an independent commission.  Article 104 sets out the mandatory requirement that, when assuming office, the Chief Executive, principal officials, members of the Executive council, judges and other members of the judiciary swear to uphold the Basic Law and swear allegiance to the HKSAR.  On the facts of the present case as set out above, these Articles of the Basic Law are of no relevance.

44.  Insofar as the Applicant is seeking to argue that Deputy Presiding Officers of the Labour Tribunal must be appointed by the Chief Executive, that is incorrect.  Presiding Officers must be appointed by the Chief Executive, under section 4 of the LTO.  But Deputy Presiding Officers may be appointed by the Chief Justice under section 5A.

45.  Even leaving aside the Applicant’s contention on contravention of Articles 48(6), 88 and 104 of the Basic Law, his claim that the Chief Justice unlawfully exercised the power conferred by section 5A of the LTO in appointing Ms Ng as a Deputy Presiding Officer in contravention of Article 92 of the Basic Law cannot be substantiated.

46.  First, Article 92 of the Basic Law stipulates that judges and other members of the judiciary shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions.

47.  Second, section 5A(1) of the LTO empowers the Chief Justice to appoint any person who is eligible under section 4A to be appointed as a Presiding Officer to be a Deputy Presiding Officer for such period and on such terms as he thinks fit.  In particular, section 4A(1)(a) of the LTO sets out the professional qualifications requirement for being eligible to be appointed as a presiding officer, stating that “he is qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters”.

48.  With respect, the Applicant’s contention that Ms Ng may not or does not have the professional qualification as required under section 4A(1)(a) of the LTO (on the Applicant’s claimed basis that he could not find Ms Ng’s name on the Bar List of the Hong Kong Bar Association or the Law List of the members of the Law Society of Hong Kong) is a matter of speculation – and it is wrong.  Ms Ng’s name is on the Bar List and it identifies that she was called to the bar in Hong Kong in 1997. There is no basis to suggest that she has not practised as a barrister in Hong Kong for periods totalling more than five years.

49.  Hence, whilst it may be that there has been identification of an alleged public law error under the heading of “unconstitutionality”, the allegation is made without any reasonably arguable basis.

E.  Result

50.  For the above reasons, the Applicant’s application for leave to apply for judicial review was dismissed.

51.  As noted above, the Applicant requested the making of a ‘protective costs order’ – on the basis that the conditions for making such an order had been met.  However, the application was dealt with on the ex parte basis, and there are simply no other costs from which the Applicant might be protected (even if, which I have not decided, the conditions for making such an order had been met).  Therefore, I made no order as to costs.