LAM AR FU PETER v. BUILDING AUTHORITY

CACV 68/2019, [2024] HKCA 146

On appeal from [2019] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 68 OF 2019

(ON APPEAL FROM HCAL NO 2259 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 1 December 2023, the applicant filed a document in CACV 68/2019 headed “Leave to appeal to the Court of Final Appeal” from “the Registrar [of Civil Appeals] decision dated 15 November, 2023” (“December Application”). The background has been set out in our judgment of 9 January 2024 and will not be repeated.

2.  On 3 January 2024, this Court sent a Notice of Handing Down Judgment to the applicant informing him that judgment of this case will be handed down on 9 January 2024.

3.  On 5 January 2024, the applicant filed a Notice of Motion seeking essentially the same relief as the December Application together with his revised submissions. He also lodged on the same day a document headed “Urgent leave to withhold decision release and a leave to accept a ‘Leave to Appeal to the CFA (revised)’ package”.

4.  This Court handed down a judgment dismissing the December Application on 9 January 2024 as scheduled[1]. We held that the grounds stated in support of his leave application are not reasonably arguable and the December Application for leave to appeal to the Court of Final Appeal was dismissed.

Analysis and disposition

5.  In the latest documents lodged by the applicant, he stated that the recent decision of the Court of Appeal in CAMP 284/2023 on 5 December 2023[2] (“CAMP Judgment”) has a material impact on the December Application. He asserted that the CAMP Judgment “confirmed the undesirable situation that all levels of the High Court had neglected to review the impact of ‘Respondent’s conduct (行爲舉措) to revoke the 2^nd DO under litigation during the course of taxation and appeal proceedings’ towards the decision orders of HCAL 2259/2018”. This assertion is totally misconceived. To the contrary, the Court of Appeal held in the CAMP Judgment that the applicant’s intended appeal has no merit.

6.  He also argued that this Court is directed to evaluate the costs issue of HCAL 2259/2018 in the proceedings of CACV 68/2019 and the appeal proceedings in CAMP 284/2023 showed that the “cost issue” of HCAL 2259/2018 is not yet concluded. In fact, CAMP 284/2023 concerns the review of the taxing master’s decision, which is not an issue for determination in CACV68/2019 as the applicant had not filed a Notice of Appeal for this aspect under CACV 68/2019[3].

7.  The applicant sought to rely on Order 45 rule 11 of the Rules of the High Court. This rule concerns the stay of execution after a judgment has been given. It does not empower a party to seek to stay the handing down of a judgment or to make further submissions. In any event, there is nothing in the CAMP Judgment which would have any impact on the determination of the December Application as alleged.

8.  For the above reasons, the applications for leave to “withhold decision release” and to accept a “Leave to Appeal to the CFA (revised) package” are refused.

9.  The Notice of Motion filed on 5 January 2024 seeks essentially the same relief as the December Application and amounts to an abuse of process. Thus, the Notice of Motion is struck out.