CHOY BING WING v. PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)

HCA 1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1994 OF 2012

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D E C I S I O N

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1.  At the hearing I dismissed the 2 summonses issued by the plaintiff, namely the summons dated 9 April 2013 for leave to appeal against my orders made on 20 March 2013 and the summons dated 24 April 2013 for recusal of myself from “any further involvement in these proceedings regarding the plaintiff”.  I now give the reasons for my decision.

2.  So far as the summons for leave to appeal is concerned, the plaintiff contends that there are 4 “important questions on points of law” involved in his intended appeal which are stated in paragraph 1 of the summons.  The plaintiff also contends that “public interest and justice require” leave to be granted.

3.  I do not consider these are valid grounds for seeking leave to appeal.

4.  The so-called “important questions on points of law” are no more than repetition of the arguments raised by the plaintiff in his appeal against the order of Master A Ho dismissing his application to strike out the affirmation filed by the defendant on 10 December 2012.  I have in paragraphs 10 to 18 of my Decision dated 28 March 2013 dealt with the plaintiff’s arguments and set out the reasons for rejecting them.

5.  Having considered the arguments raised by the plaintiff again, I am not satisfied that the plaintiff’s intended appeal has a reasonable prospect of success.  Nor do I consider there is any other reason in the interests of justice why intended appeal should be heard.  As the plaintiff has failed to satisfy the threshold for leave to appeal against interlocutory orders stipulated in s 14AA of the High Court Ordinance (Cap 4), the application must be dismissed.

6.  I now turn to the plaintiff’s application to recuse me from having further involvement in this action.  The grounds for seeking recusal were set out in the plaintiff’s 4^th Affirmation.  In essence, the plaintiff alleged that I had “deliberately turned blind eye” to his submissions made at the hearing on 20 March 2013, which he repeated in paragraphs 4 to 8 of his 4^th Affirmation.  The plaintiff went so far as to allege that I had “agreed to commit the crime of Conspiracy to defraud after Sakhrani DJHC refused to be the judge after reading [his] skeleton legal submission dated 19 March 2013”.

7.  I have no hesitation in rejecting the plaintiff’s arguments.

8.  There was absolutely no basis in support of the alleged “conspiracy to defraud” which I consider to be scandalous and vexatious. The allegation was made by the plaintiff in the many letters sent to me (and the other judges) after my Decision had been handed down on 28 March 2013, and repeated in the plaintiff’s 4^th Affirmation where he referred to and relied on the letters.  It is clear that the plaintiff made this allegation with a view to intimidate the court which I consider to be wholly improper.  

9.  As for the plaintiff’s argument that I had “deliberately turned blind eye” to his submissions made at the hearing on 20 March 2013, I agree with the submission of Ms Ma, solicitor for the defendant, that it is not a ground for recusal.

10.  As pointed out by Ms Ma, the test on recusal is “reasonable apprehension of bias” (see Deacons v White & Case Ltd Liability Partnership (2003) 6 HKCFAR 322 at §§18-24).  This requires the court to first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, and then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

11.  Applying this test to the present case, it is clear that the Plaintiff’s suggestion that I had not considered his arguments raised at the previous hearing, even if correct (which it is not), is not a matter which would lead a fair-minded and informed observer to conclude that there was a real possibility of bias on the part of this court.

12.  It follows that no valid ground for recusal has been made out.   

13.  At the hearing, I ordered the costs of the 2 summonses to be paid by the plaintiff to the defendant and directed the defendant to lodge a statement of costs for summary assessment within 7 days.  The defendant lodged the statement of costs on 9 May 2013 seeking a total amount of $50,387.  As the arguments raised by the plaintiff are largely identical to those raised at the previous hearing, I consider the number of hours claimed by the main fee earner of the defendant’s solicitors (15.25 hours) to be excessive and would only allow 10 hours.  The total costs payable by the plaintiff is assessed at $34,637.