LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

CAMP 114/2020

and CAMP 177/2020

[2021] HKCA 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 114 AND 177 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 1016/2017)

_________________

BETWEEN

_________________

_________________

JUDGMENT

_________________

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

1.  On 25 September 2020, the Applicant filed a Summons in CAMP 177/2020 for leave to appeal to this Court against Chow J’s judgment of 16 September 2020, [2020] HKCFI 2377.

2.  By that judgment, Chow J dismissed (1) the Applicant’s application to strike out and dismiss the Electoral Affairs Commission (“EAC”) bill of costs and notice of commencement of taxation and to set aside Chow J’s order for costs made on 9 February 2018, and (2) dismissed the Applicant’s application to adjourn the hearing of the first application.  Chow J awarded costs of HK$13,708 to the EAC for those applications.

3.  The relevant background was succinctly summarized at [2] – [20] of that judgment.  The matter concerns the taxation of costs pursuant to an order for costs of 9 February 2018. Previous attempts by the Applicant to appeal against the costs order had been dismissed.

4.  On 29 September 2020, the Applicant issued a Summons at the Court of First Instance to apply for leave to appeal to this Court against Chow J’s judgment of 16 September 2020. By a judgment of 11 November 2020, [2020] HKCFI 2811, Chow J dismissed the Applicant’s application for leave to appeal.

5.  Prior to Chow J’s judgment of 16 September 2020, the Applicant issued a Summons in CAMP 114/2020 on 31 July 2020 for leave to apply directly to this Court pursuant to Order 59 Rule 2B(1) and (4) of the Rules of the High Court, Cap 4A, for the following relief:

(1) the taxation proceedings be set aside;

(2) stay of execution of costs orders;

(3) vary and discharge Master J Wong’s decision of 17 July 2020 ([2020] HKCFI 1498) as well as the taxation hearings listed on 23 and 30 June 2020 before Master J Wong;

(4) set aside all costs orders under HCAL 1016/2017 and CACV 47/2018; and

(5) DOJ’s Law Officer be ordered to pay costs incurred by the Applicant.

6.  The application in CAMP 114/2020 is obviously bad and unmeritorious.  First, there is no valid reason why this Court should entertain challenge to or application for stay of the costs orders made in HCAL 1016/2017 (on 9 February 2018) and in CACV 47/2018 (pursuant to the unless order of 17 August 2018) when the Applicant had exhausted the avenue of appeal in those regards.  Second, in respect of the taxation proceedings, this Court would not entertain any application regarding the same when the Applicant did not make the necessary applications to the Master or the Court of First Instance.

7.  For these reasons the Summons of 31 July 2020 is dismissed with costs.   

8.  Coming back to CAMP 177/2020, the Applicant has filed the following Summonses and Supplementary Notices of Appeal without the leave of the Court:

(a) 1^st Supplementary Notice of Appeal, filed on 22 October 2020;

(b) Summons to apply to stay the taxation hearing call over fixed for 27 October 2020, filed on 23 October 2020;

(c) 2^nd and 3^rd Supplementary Notices of Appeal, filed on 27 October 2020;

(d) Amended Summons filed on 28 October 2020 to apply to stay all taxation proceedings in lower court proceedings pending appeal and to set aside Master Lai’s direction of 19 March 2020 that application by letter is not entertained and that the Applicant must apply in accordance with statutory provisions; and

(e) 4^th Supplementary Notice of Appeal, filed 3 November 2020.

9.  These documents were filed in breach of paragraph 15 of Practice Direction 4.1.  This Court will not entertain the same when it is not minded to give leave to appeal under CAMP 177/2020.  The above Summonses are dismissed.  It is procedurally impermissible for supplementary notices of appeal to be filed when leave to appeal has yet to be granted.  Such documents should be expunged from the court files.

10.  The Applicant lodged her written submissions on 20 November 2020.

11.  In his decision refusing leave on 11 November 2020, Chow J explained why the intended appeal against his decision of 16 September 2020 has no prospect of success. 

12.  We agree.

13.  Having read the judgment of 16 September 2020 and having considered the Applicant’s submissions in light of that, we fully agree with Chow J’s conclusion that the taxation was commenced within time.  Alternatively, if extension of time is required, it is appropriate for extension to be granted.

14.  For these reasons, the Summons of 25 September 2020 in CAMP 177/2020 is also dismissed with costs.

15.  Though the Putative Respondent did not file any documents in CAMP 114/2020 and CAMP 177/2020, we do not know if it has incurred costs in perusing the documents filed by the Applicant which were quite voluminous.  We will therefore order the Putative Respondent’s costs be taxed if not agree. 

16.  We are of the view that the applications in CAMP 114/2020 and CAMP 177/2020 are totally without merit. Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.