LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

CACV 47/2018

[2018] HKCA 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 47 OF 2018

(ON APPEAL FROM HCAL 1016/2017)

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JUDGMENT

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

Introduction

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 17 August 2018 (“the Unless Order”).  By the Unless Order, she was required to serve the appeal bundle and written submissions on the Department of Justice (“DOJ”) by 4:30 pm on 23 August 2018, failing which her appeal would be dismissed automatically without further notice immediately after 4:30 pm on that day.

2.  Having considered the materials before us, we are of the view that this application can be disposed of on paper without a hearing.

Procedural history

3.  A brief chronology leading to the making of the Unless Order is as follows:

 (a) On 20 February 2018, the applicant filed an “(Ex parte) Notice of Appeal” against two decisions of Chow J dated 9 February 2018 and 15 February 2018.

 (b) The decisions of Chow J were made after reading, inter alia, the submissions of the putative respondent and included an award of costs in favour of the putative respondent, the Court considered that the appeal should not be proceeded on an ex parte basis and gave directions to the applicant to serve notice of appeal and to copy index of appeal bundle to the putative respondent.

 (c) The applicant repeatedly defaulted in compliance with such directions.  Unless orders had to be made by the Court on 24 May 2018 and 15 June 2018 before the applicant served the notice of appeal on DOJ (acting for the putative respondent) on 31 May 2018 and lodged draft appeal bundle with the Civil Appeal Registry.

 (d) Meanwhile, the applicant repeatedly made unmeritorious challenges to the directions given by the Registrar of Civil Appeals.  Such challenges were dismissed respectively by Poon JA on 9 April 2018, by Lam VP and Poon JA on 10 August 2018.  At the same time when two summonses of the applicant were dismissed on 10 August 2018, the Court made the following observations and gave these directions at para 5:

“ The applicant has repeatedly made vexatious and hopeless applications in this appeal generating satellite litigations wasting judicial resources. To facilitate the proper consideration of the appeal, we direct as follows,

(a) The draft appeal bundle lodged at 10:30 pm on 27 July 2018 shall be treated as the appeal bundle;

(b) The applicant shall indicate by 16 August 2018 if she would agree to the processing of the appeal on papers without any oral hearing;

(c) If the applicant does not agree to the processing of the appeal on the papers, the appeal will be heard on 4 September 2018 at 10:00 am (estimated time: 1 hour);

(d) In any event, the applicant must lodge skeleton submissions (3 sets) and statement of costs and serve the same on the putative respondent by 23 August 2018. The applicant shall also lodge 3 sets of appeal bundles by 23 August 2018;

(e) If the applicant does not comply with (d) above, the hearing date of 4 September 2018 shall be vacated and she shall be deemed as waiving her right to oral hearing. The appeal shall be processed on the papers based on the materials already before the Court;

(f) Upon the applicant complying with (d), the putative respondent shall lodge and serve skeleton submissions and statement of costs by 30 August 2018.”

  (e) Thus, it was obvious that a strict timetable was laid down by the Court to facilitate the speedy resolution of the appeal.  The putative respondent has to lodge submissions by 30 August 2018 and the appeal (if oral hearing were not waived) would be heard on 4 September 2018.

 (f) On 15 August 2018, DOJ on behalf of the putative respondent notified the Court that the applicant had yet to serve the appeal bundle on them.

 (g) On 16 August 2018, the applicant issued a summons seeking to delay the process by seeking extension of time to lodge submissions and adjournment.

 (h) To avoid further delay occasioned by the applicant which would frustrate the speedy determination of the appeal in accordance with the timetable laid down on 10 August 2018, the Unless Order was made on 17 August 2018.  The Court observed and directed on 17 August 2018:

“ 1) The applicant persists in making vexatious applications despite the order and directions of 10 August 2018.

2) The summons of 16 August 2018 is an attempt to delay the appeal and it is dismissed.

3) The Court shall not entertain further summons by the applicant pending the hearing the of the appeal on 4 September 2018 or otherwise determination of the appeal in accordance with the directions below.

4) Unless the applicant serves the appeal bundle and her skeleton submissions on the Department of Justice and lodge 3 sets of appeal bundle and skeleton submissions with the Court by 4:30 pm on 23 August 2018, the appeal shall be dismissed automatically without further order immediately after 4:30 pm on 23 August 2018.

5) Upon her compliance with para 4 above, the appeal shall be heard on 4 September 2018 at 10:00 am.

6) Insofar as further provisions are made on the processing of the appeal in these directions, they superseded the directions given at para 5(d) and (e) of the directions of 10 August 2018.

7) In the meantime, the Department of Justice is granted leave to obtain a copy of the appeal bundle from the court file.

 (i) The applicant failed to serve the appeal bundle and skeleton submissions as directed and the appeal was accordingly dismissed pursuant to the Unless Order on 23 August 2018.

The applicant’s submissions

4.  The applicant filed two affidavits dated 4 September 2018 and 5 October 2018 in support of her application for relief from sanction. In so far as we can comprehend, the applicant argues that:

 (a) the DOJ’s letter to the court dated 15 August 2018 was “not necessary and extremely unreasonable and non-professional” and the Court should not have acted upon it, citing AXA China Region Insurance Co Ltd v Leong Fong Cheng CACV 113/2016, unreported, 28 October 2016 at [43] – [55];

 (b) it follows that the Unless Order based on the said letter of DOJ was “irregular” and should be set aside;

 (c) the delivery of the appeal bundle and submissions was only 15 minutes late.  The delay was short, and was neither intentional nor contumelious.  It should also be excused because of the difficulty encountered by the applicant in photocopying the court documents at the High Court Building on 21 August 2018;

 (d) the applicant had mistakenly believed that the QGO address was the service address of the DOJ because the DOJ had previously accepted service of other court documents thereat;

 (e) in refusing to accept service at the QGO address, the staff of DOJ evaded service;

 (f) in these circumstances, even if the service of the appeal bundle and submissions was irregular, the court should rectify the irregularity by extending the time of service; and

 (g) there was no prejudice to the DOJ because the hearing fixed for 4 September 2018 could be adjourned to another date.

5.  On 20 September 2018, the putative respondent through DOJ lodged written submissions opposing the applicant’s application for relief from sanction.  It was submitted that the applicant gave no good explanation for the default, that the default was both intentional and a blatant disregard to comply, that there was prejudice caused by the default, and that the appeal was devoid of merits.

Legal principles

6.  The court has a discretionary power to grant relief from the consequence flowing from the failure to comply with an unless order under Order 2, rule 5 of the Rules of the High Court (Cap 4A).  In The IncorporatedOwners of Yue Sun Mansion v Lake Side Elderly Centre Ltd HCMP 556/2017, unreported, 25 October 2017, the proper approach in exercising the discretion in deciding whether relief is to be granted was explained as follows:

“ 12. Order 2 Rule 5 directs the court to have regard to all the circumstances of the case including the matters set out at Rule 5(1) in an application for relief. Those matters, though helpful as a checklist of relevant factors, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-facet balancing exercise with no single factor being conclusive. Counsel referred us to several cases in which the courts had to consider the operation of Order 2 Rule 5. We derive some guidance from the judgments of Fok J (as he then was) in Top One International (China) Property Group Co Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606, Kwan JA in Tso Yuk Yin v Yiu Ngai Interior Design & Decoration Co Ltd CACV 245 of 2009, 12 Sept 2011 and Chu JA in Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd CACV 250 of 2010, 3 August 2012. However, as we said, much depends on the facts and circumstances of the case in question.”

Discussion

7.  In light of the circumstances leading to the making of the Unless Order and the procedural steps envisaged by the directions of 10 August 2018, the timely service of the appeal bundle was essential.  It is in such context we should consider the default on the part of the applicant.  Further, given that the index of the appeal bundle had been settled, there was ample time for the applicant to prepare and send a set of the bundle to the DOJ well before 23 August 2018.  There was no reason why she had to wait until 21 August 2018 to photocopy the documents.

8.  Though the applicant acted all along in person, as she said in her own submissions, she had received legal training and she should have no difficulty in understanding the terms of the Unless Order.

9.  We do not find the applicant’s default excusable.

10.  Further, we cannot accept applicant’s submission that the making of the Unless Order was irregular.  The case of AXA China, supra, does not prevent the court from taking heed of information set out in a letter in any circumstance: see [44] thereof.  In the circumstance set out in [3] above, in light of the deadline for DOJ to lodge submissions and the hearing date of 4 September 2018, it was reasonable for the Court to act upon DOJ’s letter dated 15 August 2018 to make the Unless Order.

11.  The applicant did not have any basis for adopting the QGO address as the address for service.  As pointed out by Ms Tsao, Government Counsel, in the correspondence between her and DOJ, it was made clear by DOJ that service should be effected at the office at Justice Place.

12.  In the present case, the applicant chose to effect service after the expiry of the deadline prescribed by the Unless Order.  She also refused to serve the documents at the proper service address after she was told to do so. In our view, the way in which the applicant effected service was a deliberate act of defiance.  It is particularly so in light of the stringent time frame for the DOJ to lodge its submissions in response.  The staff of DOJ at QGO cannot be blamed for refusing to accept service of these court documents.

13.  The applicant’s argument that the Court might adjourn the hearing date for the appeal is indicative of her intention to delay the appeal when the Court had fix an expedited date for good reasons in light of the vexatious conducts of the applicant as set out in [3] above.

14.  Turning to the merits of the appeal, we find the appeal to be wholly unmeritorious and vexatious.  According to the “(Ex parte) Notice of Appeal” the grounds of appeal are as follows:

 (a) At the leave stage, an application for judicial review was ex parte. Accordingly, the judge should not have made any costs order against the applicant (§§6 and 7).

 (b) The applicant had “direct and obvious interests in the subject matter of the application” and the judge erred in holding that she lacked standing in the matter (§8).

 (c) The putative respondent erred in relying on section 36(1)(e)(ii) of the Legislative Council Ordinance (Cap 542) (§9).

 (d) Section 21 of the Oaths and Declarations Ordinance (Cap 11) is unconstitutional.  The Appeal Committee had wrongly dismissed the application of Mr Leung and Ms Yau to appeal to the Court of Final Appeal and the applicant had referred the matter to the European Court of Human Rights (§§10 – 13).

15.  We have read and considered the two judgments of Chow J dated 9 February 2018 ([2018] HKCFI 255) and 15 February 2018 ([2018] HKCFI 359). 

16.  First and foremost, we agree with Chow J the applicant has no standing to launch this application for judicial review.  Chow J had dealt with the issue of the applicant’s lack of standing at [17] of the judgment of 9 February 2018.  The law on standing has recently been discussed in 郭卓堅 v 立法會主席梁君彥 [2018] HKCA 672, see also the judgment ofChow J in Kwok Cheuk Kin v Commissioner of Police HCAL 55/2017 at [34].  The applicant failed to demonstrate any ground that she should be allowed to advance the present challenge given that Mr Leung and Ms Yau had already done so unsuccessfully.

17.  For the reasons given by Chow J at [14] of the judgment of 9 February 2018, the applicant’s interpretation of section 36(1)(e)(ii) of the Legislative Council Ordinance (Cap 542) is plainly wrong.  There is also no reasonably arguable basis for the applicant to challenge the determination of the Court of Final Appeal in Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390.   

18.  Chow J’s decision on costs was clearly explained in [19] – [21] of the judgment of 9 February 2018.  The judge applied the principles laid down in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 in ordering costs against the applicant.  The applicant failed to persuade us that there is any proper basis for this Court to disturb such exercise of discretion. 

19.  Accordingly, we are of the firm view that the appeal is totally unmeritorious.  The re-opening of the appeal is futile.

20.  The default had occasioned the vacation of the original hearing date which, as explained above, had been fixed for expedited determination of the appeal to prevent further exploitation by the applicant of this appeal as a platform of her vexatious applications.  Granting relief to the applicant and re-opening the appeal would frustrate that purpose.

21.  In the circumstances, though the application was made within the time prescribed under Order 2, rule 4, we are not satisfied that there is any reason in the interests of the administration of justice that relief from sanction should be granted in the present case.

Disposition

22.  For these reasons, we refuse to exercise discretion to grant relief from sanction under Order 2, rule 5 to the applicant. We dismiss the applicant’s summons dated 4 September 2018 accordingly.

23.  The applicant did not advance any effective argument to resist a costs order against her; nor can we find any reason why she should not bear the costs of the putative respondent.  We therefore order that the costs of the putative respondent of and occasioned by this application be paid by the applicant.

24.  Having considered the statement of costs lodged by the DOJ on 20 September 2018, we fix the costs of the putative respondent at HK$45,000.