LEE CHICK CHOI v. THE HONG KONG GOLF CLUB

CAMP 313/2022

[2024] HKCA 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 313 OF 2022

(ON AN INTENDED APPEAL FROM DCEO NO. 11 OF 2019)

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JUDGMENT

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The Court:

1.  By a decision dated 8 August 2023 (“the Decision”), [1] this Court dismissed the claimant’s application for leave to appeal against an order dated 12 July 2022 made in a pre-trial review by HH Judge Jonathan Wong (“the Judge”), refusing the claimant’s application, in his claim against the respondent for disability discrimination, to issue subpoenas on a number of individuals. On 5 September 2023, the claimant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Decision.

2.  The trial of the disability discrimination claim commenced on 14 September 2022, with the Judge refusing the claimant’s application to vacate the trial pending the appeal to this Court against his order. The trial eventually concluded against the claimant in a judgment by the Judge on 20 April 2023.[2] Soon after the trial commenced, the claimant took the stance that his leave application against the Judge’s order should be dismissed without costs. It was accordingly dismissed by this Court in the Decision. There then remained the outstanding issue of costs, as the respondent argued that it should be awarded costs on an indemnity basis. In the end, the respondent was awarded, under the Decision, costs on a party to party basis, summarily assessed at HK$80,000.

3.  Insofar as the claimant’s intention is to appeal against the dismissal of his leave application against the Judge’s order, it is trite that dismissal by the Court of Appeal of an application for leave to appeal is final and not subject to further appeal (Lam Sin Yi Sandy v Leung King Wai William [2021] HKCA 1236). However, it is stated in the Notice of Motion that this Court erred in awarding costs against the claimant. Insofar as the claimant may appeal against the costs order made in the Decision, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484 provides that an appeal shall lie to the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  The claimant attached five exhibits (exhibits 1 to 5), of numerous pages, to the Notice of Motion. The Registrar of Civil Appeals directed that, pursuant to Practice Direction 2.1, the Notice of Motion should be determined on paper, with written submissions to be filed by the parties. The Registrar accordingly further directed, in our view correctly, that the numerous pages of exhibits attached to the Notice of Motion were not to be considered. Nevertheless, paragraph 3(1) to (4) of the Notice of Motion contained references to exhibits 1 to 4, and in these references the claimant respectively set out four questions said to be of great general or public importance.

5.  The parties duly filed their written submissions, with the claimant filing a reply submission. The claimant set out in his written submission seven questions (relating to matters arising in his application for subpoenas in the court below, and in the application for leave to appeal against the Judge’s order), and ten further questions (relating to his disability discrimination claim and other connected matters). In his reply submission, he asserted that these questions were of great general or public importance, and added a last question (in paragraph 7). Having considered the parties’ written submissions and the materials properly before us, we think it is appropriate to determine this application on paper and proceed to do so.

6.  It is unnecessary to set out fully each of the questions set out by the claimant in his Notice of Motion and written submissions. For the following reasons, none of them are of great general or public importance; and they are not reasonably arguable or are not relevant to the Decision dismissing his leave application with costs, which dismissal was final and could not be made subject to further appeal in any event.

7.  The question set out in paragraph 3(1) of the Notice of Motion argued that this Court erred in ordering costs against the claimant. It was said that there should be no order as to costs, given both parties had agreed to the dismissal of the leave application against the Judge’s order.

8.  The making of the costs order arose from and is necessarily confined to the particular circumstances of the claimant’s own case. It does not give rise to any question of great general or public importance. Further, the general principle is that costs should follow the event. The claimant’s leave application was dismissed in the Decision. The dismissal was the event to which costs followed. The fact that parties had agreed to the dismissal did not relieve the claimant’s costs liability, as the respondent did not agree on costs. His point that it was a non-event because of the agreement was not reasonably arguable.

9.  The question set out in paragraph 3(2) the Notice of Motion related to the evidence of a witness whom the claimant asserted had committed perjury in the trial of the disability discrimination claim. This concerns the particular circumstances of the claimant’s case and is not of great general or public importance. Further, it was not a question relevant to the Decision dismissing his leave application with costs.

10.  The question set out in paragraph 3(3) of the Notice of Motion related to an online video featuring a solicitor speaking about the judgment in the claimant’s disability discrimination claim. The solicitor was not involved in the trial. The video was not a matter with which the Decision was concerned, and no question of great general or public importance arose from it.

11.  The question set out in paragraph 3(4) of the Notice of Motion related to individuals in respect of whom the claimant had applied for subpoenas but was refused by the Judge. The relevance of the evidence of potential witnesses is confined to the claimant’s own case and does not give rise to any question of great general or public importance. Furthermore, the dismissal of leave application against the Judge’s refusal was final and could not be made subject to further appeal.

12.  Of the seven questions set out in the claimant’s written submission, questions 1 to 4 related to matters arising in his application for subpoenas, and in the application for leave to appeal against the Judge’s order. These matters are only relevant to the claimant’s own circumstances and give rise to no question of great general or public importance. In any event, the dismissal of the leave application against the Judge’s order is final and not subject to further appeal.

13.  Questions 5 to 7 related to the costs order awarded against the claimant. The order, including costs quantum, was made having considered the particular circumstances of the claimant’s own case. It does not give rise to any question of great general or public importance.

14.  The ten further questions set out in the claimant’s written submission, and the last question set out in paragraph 7 of his reply submission, related to matters arising from or connected to the claimant’s disability discrimination claim, including delivery of judgment by the Judge and the online video featuring the solicitor. These matters were case specific, not giving rise to any question of great general or public importance, and were not relevant to the Decision.

15.  As the questions set out are not of great general or public importance, and no other basis is advanced for submission to the Court of Final Appeal, the claimant’s Notice of Motion is dismissed.

16.  The respondent submits that the claimant’s application is completely unmeritorious and should never have been brought, and seeks costs on an indemnity basis in the total sum of HK$132,340 as per the statement of costs filed. The questions raised by the claimant clearly do not give rise to any question of great general or public importance, many were not even relevant to the Decision, were not reasonably arguable, or were concerned with the dismissal of his leave application which was final and not subject to further appeal. We agree that the present application is completely unmeritorious and should never have been brought, and indemnity costs should follow (Huge Dragon Corp v Lung Mun Oasis (IO) [2014] 3 HKLRD 286). We order the claimant to pay the respondent the costs of this application on an indemnity basis, assessed on a gross sum basis at HK$132,340.