CHOY BING WING v. HONG KONG INSTITUTE OF ENGINEERS

HCA 309/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 309 OF 2015

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D E C I S I O N

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I. Introduction

1. The Hong Kong Institution of Engineers (“Institution”) was incorporated under The Hong Kong Institution of Engineers Ordinance Cap 1105. Under the Ordinance, the Institution was established as a body corporate, and its management was vested in its Council.[1] The plaintiff (“Choy”) is a member of the Institution.

2. Choy had been committed for contempt of court on 2 occasions under Judgment dated 25 October 2005 in HCMP4694/2003 and under Judgment dated 7 January 2011 in HCMP1313/2010 for which Choy was sentenced to 6 months’ and 4 months’ imprisonment respectively.[2]

3. In HCA1994/2012, Choy commenced proceedings against the defendant therein, named as “President of the Hong Kong Institute of Engineers (HKIE)” (“President”) for an injunction to prevent the President from inter alia continuing disciplinary proceedings against Choy. On 31 May 2013, Master M Wong struck out Choy’s claim in HCA1994/2012. On 1 August 2013, Mimmie Chan J dismissed Choy’s appeal against such decision, and handed down Reasons for Decision on 12 August 2013. On 19 February 2014, the Court of Appeal dismissed Choy’s appeal against the decision of Mimmie Chan J. On 13 June 2014, the Court of Appeal dismissed Choy’s Notice of Motion for leave to appeal to the Court of Final Appeal against their decision of 19 February 2014.

4. On 5 February 2015, Choy commenced the present action against the Institution. In the Statement of Claim,

(a) Choy complained that the Institution in breach of various provisions of the Police Force Ordinance Cap 232, the Basic Law and the Hong Kong Bill of Rights Ordinance Cap 383 wrongfully charged him twice by way of disciplinary proceedings arising out of convictions of alleged criminal offence by competent tribunals in HCMP4694/2003 and HCMP1313/2010, but deprived/violated Choy’s rights by reason of non-disclosure of criminal records of convictions and sentences, and by ignoring Choy’s complaints which led Choy to commence HCA1994/2012 against the President.

(b) The Institution in violation of its Disciplinary Regulations (“Regulations”) and principles of natural justice and without any ground at all condemned and penalised Choy with “3 years suspension as a member ordered in the disciplinary hearing held on 17/1/2013, a delay of over 65 days from the purported hearing day of 9/11/12 as previously fixed prior to the writ issued on 24/10/12 [in HCA1994/2012] in the total absence of [Choy]”.

(c) The Institution did not make any decision in the disciplinary proceedings before Choy commenced HCA1994/2012 on 24 December 2012 to claim for injunctive relief under article 35 of the Basic Law, so Mimmie Chan J’s decision made on 1 August 2013 to strike out Choy’s claim in HCA1994/2012 and her Reasons for Decision handed down on 12 August 2013 were totally wrong and erroneous.

(d) Choy also complained of the “courts’ refusal to release tape recordings for appeals to verify the authenticity of court documents required under Order 59 r 9 Cap 4A, Section 54 of Cap 4”. Choy contended he had made submissions to the Standing Committee of the National People’s Congress of the People’s Republic of China (“Standing Committee”) for interpretation of article 35 of the Basic Law “to resolve the issue of [Choy’s] constitutional rights under the Basic Law (Law) for tape recordings treated as legal proceedings under CFAO of Chapter 484 (law) in CFA’s direction ruling dated 7/6/2014”, and he was awaiting reply from the Standing Committee as to his right to tape recordings of hearings “to verify the authenticity of court documents for issues such as the perjuries committed by the [President] in his affirmation dated 11/12/2012 and the omissions of [Choy’s] submissions for the judicial remedies provided to HK residents under Article 35 of the Basic Law”.

5. In the Statement of Claim, Choy claimed for (a) a declaration that the Institution’s order of 3 years’ supervision dated 9 November 2012 was null and void, (b) “[any] judicial remedies as the court thinks fit”, and (c) costs.

6. On 18 February 2015, the Institution’s solicitors filed acknowledgment of service giving notice of intention to defend.

7. On 23 March 2015, the Institution filed its Defence to dispute Choy’s claim without prejudice to its alleged right to apply to the court to strike out Choy’s claim and/or for further and better particulars of the Statement of Claim and/or to reply to Choy’s allegations when particularised, if appropriate. It is unnecessary for the present purpose to set out the fullness of the Institution’s defence save to highlight that the Institution claimed inter alia that:

(a) On 7 January 2006, the Investigating Commission was appointed pursuant to Regulation 3.1 of the Regulations (June 2005) of the Institution to consider if the matters in paragraph 2 above appeared to have disclosed a prima facie case of improper conduct (“Case”) under articles 13(4)(d) and 13(5) of the Constitution of the Institution.

(b) On 27 March 2012, the Investigating Commission unanimously resolved to refer the Case to a Board of Inquiry pursuant to Regulation 3.6 of the Regulations.

(c) On 6 July 2012, the Executive of the Institution appointed a Board of Inquiry pursuant to Regulation 4.2 of the Regulations to further investigate the matter.

(d) At the inquiry hearing on 9 November 2012 in which Choy was absent, the Board of Inquiry found Choy guilty of improper conduct under articles 13(5)(c)-(d) of the Constitution of the Institution.

(e) On 17 January 2013, the Council of the Institution ordered Choy’s membership with the Institution to be suspended for 3 years with effect from 18 January 2013 to 17 January 2016 pursuant to article 13(4)(d) of the Constitution (“Suspension Order”).

(f) On 21 January 2013, Choy served on the Institution an appeal notice against the Suspension Order. An Appeal Committee had been appointed to consider the appeal pursuant to Regulation 5.2 of the Regulations. The Suspension Order was not yet in force pending the decision of the Appeal Committee.

8. On 27 March 2015, Choy in his Reply claimed the averments in the Defence were irrelevant except there was no basis for the Institution “to assert “sentence” of “conviction” to justify any course of action taken by its Council or so”, and that all along the Institution acted contrary to the Police Force Ordinance Cap 232 and Hong Kong’s “Penal Code”, so the Institution committed perjury by making false accusations against Choy in the Defence. Choy made clear that his Reply was without prejudice to his rights to apply for further and better particulars of the Defence and/or for specific discovery.

9. The Case Management Summons filed on 2 June 2015 was heard before Registrar KW Lung on 20 July 2015. The learned Registrar ordered that:

“1. The matter is adjourned to a date to be fixed by the parties as [Choy] has left the Court without leave, with the following directions:

a. The defendant shall, within 14 days from the date hereof, take out an application for striking out of [Choy’s] claim, if so advised;

b. Liberty to apply.

2. Costs of this application be [the Institution’s] costs in the cause.”

10. On 22 July 2015, Choy issued a summons for an order that “[no] bailiff shall be present beside [him] at any hearing”, and for costs of the summons to be costs in the cause (“Summons”). On 24 July 2015, the Institution’s solicitors wrote to the court to indicate that the Institution took a neutral stance in respect of the Summons and would leave it to the court to give any directions as it thought fit for the purpose of maintaining order in any future hearings and facilitating the conduct of proceedings in a smooth and judicious manner. The Institution’s solicitors therefore sought indulgence for their attendance at the hearing of the Summons to be excused with no order as to costs of the Summons.

11. The Summons came before Master K Lo on 29 July 2015 (“Master Hearing”). At the Master Hearing, Master K Lo refused the application by the Summons with no order as to costs (“Order”).

12. On 6 August 2015, Choy filed Notice of Appeal against the Order (“Appeal”), and sought an order that (a) the Order be set aside in its entirety and (b) costs of the Appeal and costs below be paid by the Institution to Choy to be taxed if not agreed. The Appeal was scheduled to be heard before this court on 7 September 2015 (“Hearing”).

13. On 7 August 2015, Choy wrote to Master K Lo to request for “Decision/records” for the appeal against the Order made at the Master Hearing. The learned master subsequently allowed for release of the transcript of the Master Hearing to Choy (“Transcript”).

14. On 13 August 2015, the Institution’s solicitors wrote to the court to indicate the Institution took a neutral stance in respect of the Appeal and would leave it to the court to give any directions as it thought fit for the purpose of maintaining order in any future hearings and facilitating the conduct of proceedings in a smooth and judicious manner. The Institution’s solicitors therefore sought indulgence for their attendance at the hearing of the Appeal to be excused with no order as to costs of the Appeal.

15. On 25 August 2015, this court granted liberty to the defendant to decide whether or not to attend the Hearing.

II.    Appeal

16. At the beginning of the Hearing, this court invited Choy to make oral submissions to support the Appeal. Choy asked whether this court had received his letters dated 28 August and 2 September 2015 (with enclosures) sent to a number of addressees including this court. This court did receive such letters. In the course of the Hearing, he also handed up to this court a copy of a letter dated 18 August 2005 by Ma CJHC (as he then was) to him in respect of HCA424/2005.

17. Choy complained that the Transcript did not record “Choy’s conduct” as the reason for the Order. He suggested there were omissions in the Transcript, but Master K Lo refused to release the tape-recording of the Master Hearing to him. Choy submitted that the Appeal would be meaningless without the tape-recording of the Master Hearing to demonstrate the omissions in the Transcript. Choy said he would follow the practice set out in the letter dated 18 August 2005 from Ma CJHC (as he then was) to apply to the appeal court (ie this court) for release the tape-recording of the hearing in the lower court (ie the Master Hearing), and he made such oral application accordingly at the Hearing.

18. Choy in his letters urged Ma CJ to give clarification in respect of his complaint, and asked also for release of the tape-recording and transcript of hearings before Master H Au-yeung, Master M Wong and Registrar KW Lung in HCA1994/2012 and in the present action. Choy also complained of (a) fabrication by A Cheung J (as he then was) of transcript of proceedings in HCA424/2005, (b) failure by the court to release full transcript of the proceedings before A Cheung J (as he then was) in HCA424/2005 for his appeal in CACV263/2005,[3] (c) fabrication by Lam J (as he then was) of judgment/orders in HCA2351/2005, and (d) failure of the court to release tape-recording to show co-fabrication of orders by Messrs Wilkinson & Grist and Master H Au-yeung in HCA1994/2012.

19. After this court refused Choy’s oral application at the Hearing for the aforesaid transcript and tape-recording of the aforesaid proceedings, Choy left the courtroom of his own accord. Since Choy was leaving the courtroom, I reserved decision including reasons to be handed down on 10 September 2015.

20. After the Hearing, Choy wrote to Ma CJ and this court by letters dated 7 and 8 September 2015 to ask for inter alia (a) reasons for refusal of Choy’s oral application for transcript and tape-recording to be given in this Decision to be handed down on 10 September 2015, and (b) release of the tape-recording and transcript of the Hearing to him.

III.   Appeal from Master

21. It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[4]

22. Notwithstanding Choy’s complaint about the Transcript, since (as explained in the above paragraph) an appeal from the master to judge is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him/her for the first time, the tape-recording of the Master Hearing is unnecessary for the purpose of the Appeal. This is sufficient to justify refusal of Choy’s request for the tape-recording of the Master Hearing.

23. I am also not persuaded that Choy’s requests in his letters for transcript and tape-recording in respect of proceedings in other court actions would be pertinent to the present Appeal in the present action, which dealt with the limited issue of whether or not this court should grant Choy’s application for an order that “[no] bailiff shall be present beside [him] at any hearing”. I am unable to see how the proceedings in HCA424/2005 and CACV263/2005 would be pertinent to the present Appeal. In any event, Choy’s appeal against the order of Master M Wong dated 31 May 2013 in HCA1994/2012 had been dismissed, and such dismissal is now final (see paragraph 3 above). As regards Choy’s complaints against the orders of Master H Au-yeung in HCA1994/2012, they had been rejected by DHCJ Linda Chan SC in paragraphs 19-25 of her decision dated 28 March 2013, and Choy’s application for leave to appeal against such decision was dismissed by DHCJ Linda Chan SC on 20 May 2013 and subsequently by the Court of Appeal on 24 June 2013 (and such dismissal is now final). I am unable to see any relevance of those proceedings to the present Appeal, and this is sufficient reason for this court to refuse Choy’s application for release the transcript and tape-recording of hearings in the other actions as he requested.

24. For the above reasons, I have refused Choy’s request for transcript and tape-recording in his letters dated 28 August and 2 September 2015 for the purpose of the Appeal.

IV.  Discussion

25. Choy complained that Registrar KW Lung arranged for a Bailiff to be present in the court room behind him at the hearing of the Case Management Summons on 20 July 2015. Choy submitted he should be able to make fearless submissions at court hearings, and placing a Bailiff “beside [him]” at the court room at the hearings would inhibit him from making fearless submissions to the court, including his outspoken condemnation of judges who had done injustice to him. Choy asked for the relief that the Bailiff should not be present at future hearings that he participates in the present action.

26. At the Master Hearing, Master K Lo dismissed the summons on the ground that (a) Choy should not have involved the Institution by issuing an inter partes summons since it was the court and not the Institution that requested for presence of the Bailiff at previous court hearings, and (b) there was no legal basis (whether pursuant to statutory procedural rule or inherent jurisdiction of the court) for the relief sought, which was not a judicial matter.

27. Since the Appeal is by way of rehearing, I need not revisit the reasons given by Master K Lo. However, in fairness to Choy, I should say that I am not with the learned master in respect of the reason she gave in paragraph 26(a) above. Unless otherwise specified, court hearings in civil litigation are inter partes hearings. In dealing with the procedure and process of inter partes court hearings, it is not appropriate for a litigant to seek relief by unilateral application to the court. In my view, procedurally speaking (and in contra-distinction to the merits of the application discussed below), Choy is not wrong in making his application by the inter partes Summons. Likewise, on a matter of regulating court process and procedure, the Institution and its legal representatives had the good sense to save costs by asking for their attendance at the hearing of the Summons to be excused.

28. In my view, the court in the administration of justice possesses incidental and ancillary inherent powers to enable it to give effect to its jurisdiction, and such powers (which are procedural and “inherent”) are developed and utilised on the basis of the inherent jurisdiction of the court. Such inherent powers may be exercised where necessary in the interests of justice. The court has inherent power to regulate and protect its own procedures and processes and/or to prevent abuse of its processes. It has long been accepted the court’s inherent powers may be invoked to ensure the fairness, integrity and efficiency of its process. Alderson B in Cocker v Tempest (1841) 7 M & W 502 stated that the power each court has over its own process is unlimited. If the court did not have such a power, then “the Court would be obliged to sit still and see its own processes abused for the purpose of injustice” (see Cocker at 503-504). In my view, such inherent power may be more than a matter of discretion, and it may amount to a duty of the court.

29. It is therefore plain that in appropriate cases the court has inherent power to arrange for a bailiff to be present in the court room to facilitate the proper and effective conduct of proceedings and thereby protect the fairness, integrity and efficiency of the judicial process. Whilst the court should be mindful that as part of the judicial process litigants are entitled to make proper submissions at court hearings in support of their case, the court must also be alert to prevent abuse that would strike at the public confidence of the court’s process and so diminish the court’s ability to fulfil its function.

30. In the circumstances, it is obvious that the balancing exercise in deciding whether or not to arrange for a Bailiff to be present in the court room is hearing-specific, and a host of considerations relevant to the particular hearing, including the essential features or attributes of the relevant proceedings and litigants, are going to shape the exercise of the court’s inherent power for each hearing.

31. For the Hearing, this court did not see any need to arrange for a Bailiff to be present in the court room. However, it is not possible to visualise all the circumstances and developments in the present action as it progresses towards final disposal. As explained above, the balancing exercise is hearing-specific, and it is inappropriate to grant any blanket order that generally debars a Bailiff to be present at any court hearing in the present action. Where necessary, it is a matter that must be considered by the tribunal for each relevant hearing.

32. In the circumstances, the Order by Master K Lo to refuse the application under the Summons is correct although I agree with the result for different reasons. Since the Institution’s solicitors did not attend the Master Hearing, it was also appropriate for Master K Lo to direct that there be no order as to costs in respect of the Summons.

V.    Conclusion

33. I therefore dismiss the Appeal. I also order that there be no order as to costs in respect of the Appeal.

34. I further do not see any sufficient justification for release of the transcript and tape-recording of the Hearing to Choy, and his application by letter dated 7 September 2015 for such is dismissed. First, he attended the Hearing, but chose to absent himself in the course of it. Secondly, the Institution’s legal representatives did not appear to make any addresses at the Hearing. Thirdly, the Hearing lasted for a few minutes. Choy by his letters dated 7 and 8 September 2015 noted this court had refused his oral application and expressly asked for reasons for such refusal to be given in this written Decision. I have given my reasons above. Fourthly, the Hearing came to a close when Choy left the court room except for the court announcing the date and time for handing down this written Decision.

35. Each case must be considered on its own. For the present case, even if Choy wishes to appeal against this court’s refusal of his oral application (as indicated in his letter dated 7 September 2015) and/or dismissal of the Appeal, the fullness of the reasons for this court’s refusal/decision is set out herein for Choy to consider and for all to see.