THE LEGISLATIVE COUNCIL COMMISSION v. SIXTUS LEUNG CHUNG HANG AND ANOTHER

CACV 333/2018

[2018] HKCA 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2018

(ON APPEAL FROM DCCJ NO 4497/2017)

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JUDGMENT

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

1.  By a notice of appeal of 23 July 2018, the applicant sought leave to appeal against certain decisions of the Registrar of District Court in DCCJ 4497 of 2017 of 13 November 2017, 12 and 26 June 2018 and asked this Court to set aside those decisions.

2.  The applicant is not a party to DCCJ 4497 of 2017.  She, however, wanted to adduce evidence “in support of the defendants”.  On 13 November 2017, the Registrar refused to entertain her ex parte application of 10 November 2017.  On 16 May and 11 June 2018, she applied by summonses which the Master adjourned on 12 June 2018 to be dealt with on 26 June 2018.  On 26 June 2018, the Master dismissed both summonses. 

3.  Insofar as the applicant intended to seek leave to appeal, she should not apply by a notice of appeal.  Instead she should have applied by summons.  A notice of appeal filed before leave is obtained is an abuse of process because such appeal is incompetent and liable to be struck out.

4.  Further, for reasons given below, the application for leave is also incompetent.

5.  The Registrar of Civil Appeals [“RCA”] observed on 25 July 2018:

“ 1. The Notice of Appeal seeks to challenge 3 interlocutory orders/directions of the Registrar and a Master of the District Court.

2. Pursuant to Order 58 rules 1 and 2 of the Rules of the District Court (Cap.336H), appeals from the Registrar/Master of the District Court shall lie to a Judge of the District Court in chambers rather than to the Court of Appeal.

3. The Notice of Appeal is therefore liable to be struck out.

4.     If the Applicant objects to her Notice of Appeal being struck out, she may lodge written submissions (limited to 2 pages) on or before 10 August 2018 in support of her objection.  The Notice of Appeal will be referred to the Court of Appeal for consideration upon the Applicant’s lodgment of submissions or 13 August 2018, whichever is earlier.”

6.  Instead of lodging submissions as directed, the applicant issued a summons on 9 August 2018 seeking to vary and set aside the directions of the RCA and asking for leave to appeal under Order 58 Rule 2(a)of the Rules of the High Court.  She also lodged a statement in support of the summons on the same date and a set of supplementary statement on 13 August 2018, which we have read and treated as her submissions.

7.  It does not appear that she has served any of the documents lodged in this appeal on the parties in DCCJ 4497 of 2017 even though the summonses at the court below were heard inter partes.  In these circumstances, the non-service of these documents is by itself an abuse of the process.

8.  By reason of the obvious vexatious nature of her appeal and application, we do not deem it necessary to direct her to serve the notice of appeal and the summons of 9 August 2018. Instead, we will proceed to dispose of the same as an abuse of process as discussed below.  A copy of this judgment will be given to the parties in DCCJ 4497 of 2017 for their information.

9.  Since the decisions in the lower court are decisions from the Registrar and a Master of the District Court, the applicable Order 58 should be the Order 58 in the Rules of the District Court.  Under that Order 58, the position is as follows.

10.  Rule 2(2) provides for appeal from certain specified kinds of judgment or decision from a Master of the District Court to the Court of Appeal, subject to leave being obtained in accordance with the provisions of Order 58.

11.  Order 58 Rule 2(4) further stipulates that leave to appeal should be obtained from the Master before the appeal can be brought.  Rule 2(4A) further stipulates that if such leave is refused, a further application can then be made to the Court of Appeal for leave.

12.  The applicant had not applied for leave from the Registrar or the Master of the District Court.  Hence, no further application can be made and Rule 2(4A) is not engaged.

13.  In any event, the decisions in question do not come within any of the provision in Order 58 Rule 2(2) which reads:

“ (2) Subject to the provisions of this rule, an appeal lies to the Court of Appeal from—

(a) a judgment, order or decision of a master on any cause, matter, question or issue tried or assessed before him under Order 14, rule 6(2), Order 36, rule 1, Order 37 or Order 84A, rule 3; (L.N. 100 of 2014)

(b) a judgment, order or decision (other than an interlocutory judgment, order or decision) of a master given or made under Order 49B; and (L.N. 153 of 2008; L.N. 100 of 2014)

(c)   a judgment of order of a master given or made under Order 17, rule 11(2). (L.N. 100 of 2014)”

14.  As such, they are not decisions which is appealable to the Court of Appeal.

15.  The further references to section 63(1B) of the District Court Ordinance and Order 17 Rule 11(2) in the summons of 9 August 2018 cannot take the applicant case further.  Her reliance on section 63(1B) is subject to the same flaws as discussed above in respect of Order 58 Rule 2.  We cannot discern any relevance of Order 17 in the present case as DCCJ 4497 of 2017 is not a case within the scope of Order 17.    

16.  For these reasons, we dismiss the summons of 9 August 2018 and strike out the appeal as an abuse of process.