LAM AR FU PETER v. BUILDING AUTHORITY

CAMP 284/2023, [2024] HKCA 131

On An Intended Appeal From [2022] HKCFI 3712 &

[2023] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 284 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2259 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 5 December 2023, this Court gave its judgment (“the CA Judgment”)  dismissing the Applicant’s application for leave to appeal or, alternatively, an extension of time to appeal, against the decision of Wilson Chan J dismissing the Applicant’s application for a review of a taxing master’s decision on costs under Order 62, rule 35 of the Rules of the High Court , Cap 4A.

2.  The basic facts of this case and the Court’s reasons for dismissing the Applicant’s application have been set out in the CA Judgment and will not be repeated here.  Unless the context indicates otherwise, the expressions and abbreviations as defined in the CA Judgment will continue to be used in this judgment.

3.  By Notice of Motion dated 29 December 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal.  Attached to the Notice of Motion is a document titled “Application for Leave to Appeal to the Court of Final Appeal”.  Insofar as one can make out from that document, the Applicant appears to be seeking leave to appeal on the following grounds:

(1)  the “court orders” are “impracticable” and cannot be enforced;

(2)  infringement of the fundamental constitutional rights of Hong Kong people;

(3)  the Taxing Master is not required to follow the costs order made by the Court of First Instance; and

(4)  the Respondent’s conduct in revoking the “2^nd DO” should be reviewed during the course of taxation and/or the appeal proceedings.

4.  In accordance with the usual practice under paragraph 3 of Practice Direction 2.1, the Notice of Motion is determined on paper.

5.  Under s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The matters raised by the Applicant in his document “Application for Leave to Appeal to the Court of Final Appeal” are either new points not previously raised, or repetitions of points which have been rejected by the Court of Appeal.  They are also not reasonably arguable. In particular, we fail to see how it can be reasonably be argued that:

(1)  the Costs Orders made by the Court of First Instance in HCAL 2259/2018, or the order made by Master Hui upon taxation of the Costs Order, are impracticable or unenforceable;

(2)  the Costs Orders, or the taxation of those orders, have resulted in any infringement of any fundamental or constitutional rights of the Applicant;

(3)  the Taxing Master is not bound to follow, or give effect to, the Costs Order made by the Court of First Instance; or

(4)  the Respondent’s subsequent conduct, which the Applicant contends amounted to a decision to “revoke”, “withdraw” or “abandon” the building order dated 10 December 2010 or the previous proceedings, has been overlooked or neglected by the courts, or can affect the validity or enforceability of the Costs Order.

7.  The Applicant has not raised any viable ground of appeal against the CA Judgment.  His intended appeal based on the matters raised in the Notice of Motion and the accompanying “Application for Leave to Appeal to the Court of Final Appeal” has no merits and no reasonable prospect of success.  We are not satisfied that the Applicant’s intended appeal raises any question of great general or public importance which ought to be submitted to the Court of Final Appeal for decision.  There is also no basis to grant leave to appeal based on the “or otherwise” limb in s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance.

8.  Lastly, we note that in a document titled “Application for Leave to Appeal to the CFA ‘Submission of New Discovery’” dated 18 January 2024 and attached to the Applicant’s “Leave to accept ‘Submission of New Discovery’” of the same date, the Applicant applies for an order that Chow JA should recuse himself from dealing with the present application on the ground that the Costs Orders in HCAL 2259/2018 were made by him as a judge of the Court of First Instance.  We can see no valid basis for this application, in view of the fact that (i)  the subject matter of the Applicant’s summons dated 14 August 2023 in CAMP 284/2023 was the order of Wilson Chan J dismissing the Applicant’s application for a review of a master’s decision on taxation of the Costs Orders, not the Costs Orders themselves, (ii)  as mentioned in §5 of the CA Judgment, the Costs Order were not disturbed by the Court of Appeal in the Applicant’s previous appeals ([2019] HKCA 1019, [2021] HKCA 756 and [2021] HKCA 1596), and (iii)  the Costs Order were not open for review by either the Taxing Master or Wilson Chan J.  In the circumstances, when the Court of Appeal determined the Applicant’s summons dated 14 August 2023 in CAMP 284/2023, it was not called upon to decide on the correctness of the Costs Order.  The same considerations apply to the Applicant’s current application for leave to appeal the CA Judgment to the Court of Final Appeal.

9.  For the above reasons, the Notice of Motion is dismissed with costs to the Putative Interested Party.  The costs claimed by the Putative Interested Party in the costs statement dated 11 January 2024, in the amount of HK$9,506, are reasonable, and are allowed in full upon summary assessment.