HKSAR v. KIT CHOY DEVELOPMENT LTD

HCMP2357/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2357 OF 2010

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J U D G M E N T

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1.  This is an appeal by the Defendant, Kit Choy Development Limited, against a decision of Master Levy given on 11 November 2011.

2.  The Defendant has been represented, today and throughout, by Mr Choy Bing-wing. The notice of appeal states, “That the interest rate applied and the interest charged by the Plaintiff and the bill of costs be allowed in full without regard to the fraudulent nature of the purported judgment debt.”

3.  The background to the case is lengthy and has been carefully and helpfully and clearly set out by Master Levy in her written decision.  The appeal, according to the notice, is confined to two narrow issues relating to interest and costs.  However, when I invited Mr Choy in court to outline the grounds of his appeal (which I did because nothing else had been received in writing save for a short letter the day before this hearing.)  Mr Choy embarked on a lengthy exposition of the background to this particular case, in which he has been involved since 2003, and also other litigation in which he has been involved over the same period.

4.  This particular litigation goes back to his company being fined by the Fire Department in 2003 for various breaches of the Fire Safety Regulations.  The fine at the time was some $2,800 and costs of $1,000.  That matter went to appeal, which was unsuccessful after a lengthy hearing in front of the late Mr Justice Gall.  The Appellant sought leave to apply to the Court of Final Appeal which was refused.  Finally, the Appeal Committee of the Court of Final Appeal itself also refused to give leave to appeal.

5.  Nonetheless, Mr Choy has not been satisfied with the decisions that have been made in this case or in the other matters to which he referred during his submission to me this morning.  I asked him on a number of occasions what he was asking this court to do in this particular hearing in relation to this particular notice of appeal. Each time I asked that question, Mr Choy continued to explain to me the background of this case, going back many, many years.  However, eventually, in answer to my question on, I think, the third occasion, Mr Choy informed this court that his purpose in being here today was to ask this court to reverse the decision of the late Mr Justice Gall when he gave his decision in the original Magistracy appeal.

6.  I indicated to Mr Choy that I was not in a position to do so, as I had no such power. With that statement Mr Choy strongly disagreed.  It was Mr Choy’s submission, and I hope I summarise his submission accurately when I say that he believed that any court could reverse any other court’s decision at any time if it thought it right and lawful to do so.  Upon informing Mr Choy that I did not believe that to be the law, he decided that he would leave the court, which he did in an orderly way, but not before I informed him that he would be given the opportunity to return and that I would adjourn for 15 minutes to give him that opportunity.  I informed him that my clerk would call the name of the case in the court lobby and that if he wanted to return, I would continue in his presence; if he chose not to return, I would continue with the case in his absence.  The case name was duly called in the court lobby.  He did not return, and I continued with the appeal and heard the submissions of Mr Cheung, who appeared on behalf of the Plaintiff.

7.  As far as the merits of the appeal are concerned, and reminding myself of the narrow compass in which the appeal is set out in the notice of appeal, I only need to say that I have considered Master Levy’s decision and reasoning for her granting the interest rate and interest amount and costs that she did charge.  It is apparent that all are entirely proper and appropriate, and there are no grounds for this court to interfere with them or amend them.

8.  Accordingly, I dismiss this appeal.

9.  As for the costs of today, Mr Cheung has provided an estimate of the Plaintiff’s costs which come to the very modest sum of $17,100, which I allow in full.  The costs therefore of today’s hearing will be to the Plaintiff in the sum of $17,100.

10.  I should add, for the sake of completeness, that after the last hearing in front of Master Levy, Mr Choy sent to the court a cheque for the sum of $203,713.63 which represented (a) the sum of the judgment debt arrears under the charging order absolute, a sum of $133,442, (b) the sum of $8,000 costs which had been awarded to the Plaintiff under the charging order absolute, and (c) a sum for interest on the judgment debt, being $62,271.63.  Thus Mr Choy had paid in full all that was required of him to discharge the charging order absolute with the exception of the $43,000 costs ordered by Master Levy by way of gross sum assessment.  That cheque for $203,713.63 has been kept by the Plaintiff and the cheque has cleared.  Therefore, for the avoidance of doubt and so that Mr Choy fully understands when he reads this decision, the only amounts now outstanding for him to pay before the charging order absolute can be discharged are the sum of $43,000 costs for the previous hearing, and $17,100 costs for this hearing.