SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP 1313/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1313 OF 2010

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D E C I S I O N

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1. The defendant appeals against a decision of Master Ho given on 11 September 2012. The decision was given in the course of taxation proceedings to tax the amount of costs payable by the defendant to the plaintiff pursuant to a costs order. The costs order was given in favour of the plaintiff and against the defendant on 11 February 2011 in connection with certain contempt proceedings the details of which need not be gone into here.

2. The plaintiff sent a draft bill of costs to the defendant on 27 June 2012 pursuant to the costs order.  The total sum in the draft bill was HK$534,087.30.  The defendant was asked to indicate whether he found the sum acceptable failing which the plaintiff would proceed to taxation.

3. The plaintiff on 17 July 2012 lodged with the court a bill of costs and a notice of commencement of taxation.  The documents were also served on the defendant.  The defendant was asked to file and serve a list of objection to the items in the bill within 28 days.  The defendant was also advised that if no list of objection was filed, the plaintiff would apply for the appropriate directions.  That was in line with paragraphs 19, 21(1) and 23 of Practice Direction 14.3.  These paragraphs provide:

“(c) Commencement of Taxation Proceedings

19. The proceedings for the taxation of costs is begun by the filing of the Notice of Commencement of Taxation (‘NOCT’) as per the format in Appendix D and the bill of costs.

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21. Unless the taxing Master directs otherwise, the following standard directions shall take effect:

(1) Within 28 days after service of the NOCT, the paying party shall file and serve a list of objections, failing which the receiving party may apply to the taxing Master for the bill to be taxed as drawn as provided for in paragraph 23 below.

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23. Upon the failure of the paying party to file and serve a list of objections in compliance with the standard directions or the directions approved by the taxing Master, the receiving party may apply for his bill to be taxed as drawn by:

(1) filling an affidavit to prove due service of the NOCT and the bill on the paying party; and

(2)  completing Section A of the Application to Set Down and filing the same in Court and serving it on the paying party.”

4. The defendant did not file or serve any list of objection within time.  The plaintiff then applied to set the bill down for taxation on 11 September 2012 before Master Hui.

5. The defendant then filed an affirmation on 5 September 2012 objecting to the application for taxation on the ground that the court has no jurisdiction to tax any purported costs arising from proceedings of contempt of court.  He asserted that the contempt proceedings and the order of imprisonment made pursuant thereto were in violation of various articles of the Basic Law.  He further asserted that the taxation proceedings for payment of costs arising from the contempt proceedings were unsustainable as they arose from earlier proceedings which contravened the Basic Law and the Master had no jurisdiction to tax the costs under the costs order.  He concluded his affirmation by saying that the plaintiff had been dishonest in taking the taxation proceedings which should be stopped and dismissed.

6. On 11 September 2012, the taxation proceedings were transferred to Master Ho who order that:

“1. In view of the objection by the Defendant, the matter be adjourned to a call-over hearing on 9^th October 2012 at 9:30 am before Master.

2. The defendant is to file and serve his List of Objection within 14 days from the date hereof.

 3.  If the Defendant fails to file and serve the List of Objection as ordered in paragraph 2 above and/or fails to attend the call-over hearing on 9^th October 2012, the Bill will be taxed as drawn”

7. The defendant appealed against this order.  He filed his 2nd affirmation on 17 September 2012 to support the appeal.  He said in the affirmation:

“2. The direction issued on 11/9/2012 by Master Ho in lieu of Master K.H. Hui is wilfully committed to deny justice to the Defendant turning a blind eye to the objections already submitted to the court on 5/9/2012. It is now produced and shown to me a copy of the relevant correspondence for the objection of the said Direction marked ‘CBW-2’.

3. For the rule of law in the administration of justice, the Plaintiff must reply to the objection submitted on 5/9/2012 and to be further replied by the Defendant before a hearing to be fixed as required under Articles 35 and 87 of the Basic Law for the safeguards of the rights of HK residents.

4. The Direction dated 11/9/2012 issued by Master Ho contravenes Articles 35 and 87 of the Basic Law for a Direction given in the Defendant’s absence and the omission of the objections already submitted.

5.  The Direction issued by Master Ho on 11/9/2012 must be set aside and a hearing after exchanges of replies before a court of law.”

8. In his amended written submissions, he also referred to articles 11, 18. 19, 48(3), 73(1), 73(8), 83 and 158 of the Basic Law. These articles are for safeguarding the fundamental rights and freedoms of the residents, providing for independent judicial power, stipulating the rights of the residents to have access to court, to have a fair trial by judicial organs and to be presumed innocent until convicted by judicial organs.

9. Having considered the defendant’s affirmations and amended written submissions, I do not think he has any ground to pursue this appeal.  None of the articles of the Basic Law he cited has any relevance to the taxation proceedings.  If he is dissatisfied with the costs order that was made in the contempt proceedings, he should have appealed against that order or the decision on the contempt proceedings.  The taxation proceedings are conducted to assess the amount of costs payable under the costs order.  There is no consideration of the merits of that order in these proceedings.  The defendant’s attacks, which are aimed at that order, cannot affect the conduct and progress of the taxation proceedings. 

10. In the premises, I dismiss the defendant’s appeal.  I also make a costs order nisi requiring him to pay the costs of the appeal.  These costs shall be assessed by me summarily.  The plaintiff shall file and serve a bill of costs outside the next 14 days but within the next 28 days.  The defendant shall file his list of objection, if any, within the next 14 days.  I will then summarily assess the costs on paper.