CHOY BING WING v. OFFICIAL RECEIVER

CACV 78/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 2003

(ON APPEAL FROM BANKRUPTCY PROCEEDINGS NO. B242 OF 1992)

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REASONS FOR JUDGMENT

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Hon Woo VP:

Preliminary matter

1. At the hearing of this matter on the morning of 19 February 2004, the applicant was absent. After hearing Mr Sakhrani, for the respondent, we dismissed the application with costs and announced that we would hand down our reasons the following day at 10 am.

2. Shortly before the hearing on 19 February, my clerk received three copy letters from the respondent's legal representative. Chronologically, they are:

(a) A letter of 13 February 2004 from the applicant to the clerk to the Hon the Chief Justice with a copy to the CJHC and the respondent's solicitors. The letter objected to Rogers VP, before whom and me this application was originally listed, sitting in this case on the ground of alleged "dishonesty" on the part of Rogers VP.

(b) A letter of 18 February 2004 from the respondent's solicitors to the applicant informing him that the application was listed to be heard before Chu J and me.

(c) A letter of 19 February 2004 from the applicant to the respondent's solicitors, with a copy to the Chief Justice and CJHC, stating that his letter of 13 February 2004 to the Chief Justice had remained unanswered and that "there is no point and no way for me to attend the Court hearing at 10.00am this morning in the circumstances."

3. On my instructions, my clerk telephoned the applicant who indicated to her that he would not attend the hearing because he had no time to get prepared.

4. We then went into court. While we were hearing Mr Sakhrani, my clerk handed me a letter which was apparently faxed by the applicant to the court at 10:44 am. This appears to be an office copy of the letter mentioned in para 2(c) above.

5. We refused to delay the proceedings further. It was the applicant who made this application and he should have been prepared to attend the hearing to prosecute his application. Even if the hearing had remained listed before Rogers VP, the applicant should have attended the hearing and made an application for any relief as he thought fit, eg to adjourn the hearing. Not attending the hearing would not be the proper thing to do and could only delay proceedings. In any event, the applicant did not appear before us to apply for an adjournment. We therefore proceeded with the hearing and dismissed his application. Our reasons for dismissal appear below.

Background

6. The applicant had been bringing a number of applications and appeals in this case against the respondent in the Court of First Instance, Court of Appeal and Court of Final Appeal. Those applications and appeals were unsuccessful with the consequence of a number of costs orders made against him. A part of those costs that had been taxed came to $444,866.

7. On 24 March 2003, Deputy High Court Judge To ordered a property of the applicant to be charged with the sum of $497,818.38, comprising the said taxed costs and interest. The property was further charged with interest on the taxed costs on 17 January 2003 until payment. Against the charging order, the applicant appealed.

8. The respondent sought security for costs of the appeal. On 30 May 2003, Cheung JA, sitting as a single judge of the Court of Appeal, ordered the applicant to pay into court within 14 days $75,000 as security for costs of the appeal, staying the appeal until the sum was paid into court, and in default, the appeal was to be dismissed with costs to the respondent.

9. On 11 June 2003, the applicant sought an extension of time to apply to the Court of Appeal to discharge Cheung JA's order. That application was not grounded on any mistake made by Cheung JA, but based on Cheung JA's alleged bias and injustice against the applicant. The application came before the Court of Appeal (Rogers V-P and Le Pichon JA) on 18 July 2003. The applicant absented himself from the court. The Court of Appeal dismissed the application.

The present application

10. On 14 August 2003, the applicant made an application for leave to appeal the Court of Appeal's order of dismissal to the Court of Final Appeal. This was the application before us.

11. The ground of application is that the intended appeal involves questions "which by reason of their great general or public importance or alternatively to, at least, a section of the public, or otherwise, ought to be submitted to the Court of Final Appeal for decision". Six such alleged questions are set out in the application, consisting of the first four questions relating to the conduct of judges and the two last questions relating to the propriety of the costs orders and the effect of sections 83 and 84 of the Bankruptcy Ordinance, Cap 6.

12. The last two questions can be disposed of very quickly. They were questions that had been dealt with respectively by the Court of First Instance, the Court of Appeal and the Court of Final Appeal and the applicant was unsuccessful throughout. Those proceedings resulted in the costs orders against him parts of which were taxed to amount to the $444,886 for which his property was charged by the charging order. As the involved issues had already been decided by all those courts, it is clear beyond peradventure that they are res judicata. Allowing the applicant to raise them again would be permitting an abuse of the court process.

13. The other four questions relate to the prejudice that a number of judges had allegedly exhibited against the applicant and that demonstrated injustice. The factual basis appears to be that the applicant had heated exchanges with the judges during the hearing of his applications when he accused the judges of being incompetent, reckless or dishonest, which resulted in bad experiences between him and the judges. He asked them to disqualify themselves from hearing his cases because he alleged that the judges' integrity had been at stake. He absented himself from the Court of Appeal on 18 July 2003, which dismissed his application to reverse Cheung JA's order. He specifically alleged that Cheung JA was biased against him.

14. He has now sought leave to appeal to the Court of Final Appeal on the ground that these four questions raised by him are of great general or public importance that should be determined by the highest court of Hong Kong. All these questions are plainly not directed at any error made by Cheung JA when he made the order for security for costs of the appeal or at any error of the Court of Appeal when it dismissed the application for reversing Cheung JA's order. The crux of the matter before Cheung JA was whether security for costs of the appeal should be ordered. Cheung JA's decision was based on the correct principles applicable to the issues necessary to be decided by him. I do not find any error in it.

15. Returning to the four questions, I do not consider this is a proper case for the questions to be raised before the Court of Final Appeal. If every time when a litigant had asked the lower courts to disqualify themselves from sitting on his cases on the basis of the judge or judges being biased against him and by attacking their integrity and failed, and he were allowed to raise this kind of questions before the Court of Final Appeal, that would have the effect of delaying and abusing the legal process. From what I have read in the court file, these attacks by the applicant on judges were wantonly made and without any proper factual basis. Some of all of these four questions might well be of great general and public importance, but I do not consider it legitimate or proper to allow the legal process to be so employed in all the circumstances of this case. I would not hesitate to refuse to exercise my discretion to grant leave conferred on this court by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

16. Therefore, in agreement with Chu J, I announced that we dismissed the application with costs.

Hon Chu J:

17. I agree and have nothing to add.