LEONG YUET WAH AND ANOTHER v. WONG WEI LIN AND OTHERS

HCMP428/2006, CACV397/2006 & CACV412/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 428 OF 2006

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D E C I S I O N

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1. This is the respondents’ appeal against the decision of Master Ko, sitting as a taxing master, dated 5 January 2009 whereby he ordered that items 211 and 212 of the respondents’ bill of costs be taxed off entirely.

2. The respondents took out this appeal under Order 58 as if it is an ordinary appeal against a master’s decision.

3. However, under Order 62, there is a specific review procedure dealing with challenges by a party who is dissatisfied with a decision of the taxing master.  Put simply, he should first apply for a review to the taxing master under rules 33 and 34 and if necessary for a further review of the taxing master’s decision made on review under rule 35 to a judge in chambers.

4. Mr Lam, for the respondents, argued that although this specific review procedure in Order 62 is not followed, the court can still hear the appeal.  He took essentially two points.

5. First, he argued that there is nothing in the rules which prevent the respondents from appealing the taxing master’s decision by Order 58.  I disagree.  Order 62, rule 2(4) provides that the powers and discretion of the court as to costs shall be exercised subject to and in accordance with Order 62.  The powers and discretion as to costs covered by that rule must include the powers and discretion exercisable by a taxing master on review of his own decision on taxation and the court on review of the master’s decision.  It follows that a party who wishes to challenge a decision made by the taxing master must follow the specific review mechanism in rules 33 to 35.  He cannot avail himself of his general right to appeal to a judge in chambers under Order 58.

6. Mr Lam referred to a decision of the Court of Appeal in CFK v. LLL, HCMP4738/2002, unreported, 21 January 2003 where Cheung JA observed in paragraph 15 of the judgment that a judge of the Court of First Instance may review the taxation even if there was no review by the taxing master.  This observation, as accepted by Mr Lam, is obiter, as the Court of Appeal was then dealing with a taxation brought in the District Court.  It is therefore not binding on me.  And speaking for myself, it is my view that a party must follow the specific review procedure in Order 62 if he is dissatisfied with a decision of the taxing master.

7. Mr Lam further submitted that there is nothing in the rules to stop a reviewing party, who lost before a judge, from brining the matter to the Court of Appeal.  It therefore shows that the review mechanism in Order 62 is not obligatory.  This submission is misconceived because the jurisdiction of the Court of Appeal in hearing appeals from the Court of First Instance is set out in sections 13 and 14 of the High Court Ordinance, which plainly covers an appeal from a judge’s decision made on review under Order 62, rule 35.

8. Mr Lam also referred to the provisions in the Lands Tribunal Rules which deal with the procedure on review and appeal.  I do not think it takes the matter further as those rules concern different subject matters.

9. The second point taken by Mr Lam is this.  He submitted if there is any procedural irregularity in not following the review mechanism in Order 62, the court can still exercise the discretion under Order 2 to cure the defect.  He submitted that the error made by the taxing master involved a simple point of law.  The master had already given his reasons.  The petitioners will not suffer any prejudice if the appeal is to be heard now.  I disagree.  As I have pointed out in the course of the submissions, there exists a very good reason for the review mechanism.  When the matter is brought before the master again on review, he can revisit his decision with the benefit of further submissions.  If persuaded, he may change his mind.  If that happens, the reviewing party will achieve what he wants there and then.  If the master confirms his decision and the reviewing party brings the matter further, the master will have to give full reasons for his decision made on review, which will be placed before the judge when the matter goes before him.  When the review mechanism is not followed, the taxing master will be deprived of the opportunity of re-considering his decision and the court, his full reasons for the decision that he made on review.  This deficiency cannot be remedied by the court’s exercising the discretion under Order 2.

10. For the above reasons, this appeal is misconceived.  It must be dismissed accordingly.