THE LEGISLATIVE COUNCIL COMMISSION v. SIXTUS LEUNG CHUNG HANG

DCCJ 4497/2017

[2021] HKDC 711

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4497 OF 2017

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DECISION

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1.  The Intended Party took out two ex-parte applications on 20 December 2019 for:-

a) leave to appeal against the decision of this court dated 18 December 2019 (“the Decision”); and

b) costs order nisi in the Decision to be varied.

2.  Pursuant to the direction of His Honour Judge Ko dated 31 October 2018 and paragraph 29 in Tsang Wing Kwai v Tsang Wing Fai [2018] HKCA 759, the Court regards it appropriate to deal with application a) by adopting the procedure of paper disposal. Application b) will be dealt with by an inter-partes oral hearing at a later date.

Application (a) Leave to appeal against the Decision

3.  The background of this case has been discussed at length in the Decision and needed not to be repeated here.

4.  The legal principle for granting leave for appeal is specified under section 63A(2) of the District Court Ordinance (Cap. 336) which provides:

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

5.  The court has perused the Affidavit of the Intended Party made in support of the application and the “Notice of Motion” both of 20 December 2019.

6.  In short, the Intended Party did not put forward any specific grounds that the Decision has erred in any findings of facts or findings in law: she was essentially repeating the same arguments which have already been submitted in details and at considerable length during the hearing on 9 December 2019.

7.  As such, the Court is not satisfied that the appeal has any reasonable prospect of success. Further, as discussed in paragraphs 17, 18 and 19 of the Decision, the Court has already found that there is no public interest in this application and any argument based on any alleged “private” “beneficial interest” has no merit. There is simply no reason in the interests of justice why the appeal should be heard.

8.  Accordingly, the application for leave to appeal against the Decision be dismissed with no order as to costs.

Application (b) Cost order nisi of the Decision

9.  In the Decision, this Court stated its disapproval of the vexatious nature of the Intended Party’s various applications and made an order nisi for the Intended Party to pay the Plaintiff’s costs on an indemnity basis to be taxed if not agreed.

10.  The Intended Party sought to “vary, set aside and discharge” the order nisi.

11.  The Court has directed for the Cost order application to an inter-partes basis on 14 April 2020. Upon consulting both the Plaintiff and Intended Party, this Court further directed for the application to be dealt with by paper disposal on 27 April 2020.

12.  The Intended Party is wholly unsuccessful in her 1^st and 2^nd Ex-parte Summonses. The Plaintiff is wholly successful in its Cross Summons.

13.  The Intended Party appears to suggest that there should be no order as to costs because she only took out “ex-parte” applications. This Court has already ruled that taking out an “ex-parte” application to appeal against an “inter-parte” decision was entirely misconceived and was an abuse of process.

14.  The Court notes, with great regret, that the Intended Party has ignored this Court’s very ruling in the Decision and repeated the same abuse of process by again having taken out “ex-parte” summons in the current applications.

15.  This Court has, on many occasions, expressed its concern over the Intended Party’s ignorance of basic legal procedures and suggested that she should consider seeking legal advice. It is very clear that she has chosen to persist in her own way regardless.

16.  The Intended Party also raised a rather mystifying allegation that the Plaintiff’s solicitors were unfairly evading service of her “ex-parte” summons. Of course, being an “ex-parte” summons, the Intended Party did not serve the summons. The Plaintiff was not aware of the applications until informed by the Registrar in a letter dated 27 July 2019. Another allegation was that the directions made by this Court in the case management hearing on 27 September 2019 was inaccurately drafted in a draft order. However, that order was self-evidently accurate given that it was subsequently sealed by this Court.

17.  The principles applicable to ordering indemnity costs are well settled, as summarised by To J in KJ v KMLM, unreported, HCMC 4/2010, decision dated 21 May 2014 at paragraphs 21 and 22:

“21. …The starting point for taxation in hostile litigation is that costs should be taxed between party and party…To qualify for costs on an indemnity basis, the successful party should show some special or unusual feature in the case. The proceedings must be instituted or prosecuted in circumstances as to constitute an affront to the court. Usually there must be something disgraceful in the conduct of the losing party or his legal representatives such as to cause the court to feel a proper sense of indignation. Normal litigious hostility would not suffice….

22. If unreasonable conduct is relied on, the losing party’s conduct would need to be unreasonable to a high degree. In this context, “unreasonableness” does not mean merely wrong or misguided in hindsight…”

18.  In the context of this case, the Court noted many “special or unusual features” and “unreasonable conducts” which were not “merely wrong or misguided in hindsight”. Many of such were already stated in the Decision, for example:

a.   The Intended Party seeking to re-open the DC Appeal on the basis that order for dismissal has not been sealed when this was due to her own failure;  

b.   Whilst the Intended Party was all along seeking to adduce evidence in the main action, she was unable to tell the Court what evidence she had that was relevant to the action;

c.   the repeated abuse of using “ex-parte” applications; and

d.   the serious and inordinate delay in proceeding with the DC Appeal.

19.  The Intended Party has clearly prosecuted these proceedings in a classically vexatious manner which constitute an affront to this Court, not to mention offending the underlying the many objectives of Order 1A, r1 of the Hong Kong Civil Procedure.

20.  As such, the Court would order that the cost order nisi in the Decision be made absolute.

Costs of application (b)

21.  For the reasons as stated above, the Court would also order the costs of this limb of the Intended Party’s applications to be paid by the Intended Party to the Plaintiff on an indemnity basis to be taxed if not agreed.