CHOY BING WING v. BUILDING AUTHORITY OF THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, CHINA AND OTHERS

HCA 2458/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2458 OF 2007

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REASONS  FOR  DECISION

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1.  The Plaintiff is appealing the decision of Master Ho on 24 June 2008 in taxation hearing with the 5^th defendant as receiving party ordering that the documents sought by the Plaintiff from the 5^th defendant for the purposes of preparation of objections to the sum allowed on provisional taxation be limited to inspection by the Court.

2.  At the hearing, the Plaintiff requested that I recuse from sitting and I refused to do so.  I also dismissed the appeal with costs.  I now give my reasons.

Recusal

3.  The Plaintiff said he did not have confidence in my honesty and/or reliability by reason of his honest opinion, rightly or wrongly, based on what he gathered from a recent appeal by defendants previously convicted by me sitting in the District Court.   The prosecution case involved the ICAC evidence and the Plaintiff had no trust in the ICAC.  The judgment of the Court of Appeal has been reserved.

4.  Mr. Lui, for the 5^th Defendant, submitted that there was no basis for my recusal.

5.  Three classes of cases call for disqualification of a judge from sitting:

(1) actual bias;

(2) presumed bias;

(3) apparent bias.

6.  There is no evidence of actual bias.  The Plaintiff’s ground is based his perception rather than fact.

7.  There is no presumed bias as I have no interest, pecuniary or proprietary, in the outcome of the case.

8.  As to apparent bias, the test is usually stated as follows:

“A particular judge is qualified from sitting if the circumstances are such as would lead a reasonable, fair-minded and well informed observer to conclude that there is a real possibility that the judge would be biased.”

9.  Applying the test, any reasonable, fair-minded and well informed observer must have regarded the Plaintiff’s apprehension as tenuous or frivoulous.

10.  Hence, I refused to recuse myself.

Background

11.  The Statement of Claim alleged, inter alia, that the 5^th Defendant conspired with the Government in trying to disqualify him as a professional engineer as a result of his “conviction” (of contempt of court) and imprisonment.  He did not accept the findings of the Court, and queried whether there was any conviction.   He sought disclosure of papers and files containing injurious falsehoods and sought damages to his livelihood.

12.  The Plaintiff discontinued the action against all the Defendants, and costs of the action were ordered to be paid by the Plaintiff to the 1^st to 5^th Defendants, to be taxed on party and party basis if not agreed.  The Registrar allowed on provisional taxation the sum of $63,903.  The Plaintiff objected and sought a hearing. 

13.  He sought “all documents and records and details of meetings for the Plaintiff to bridge the gap of 2 to 3 hours to that of 14.5 hours” in order to prepare the list of objections.  Master Ho ordered that the correspondence between the 5^th Defendant, his solicitor and counsel be produced for the Court’s inspection only.

Plaintiff’s grounds

14.  The Plaintiff alleged there was a conspiracy referred to above.  He sought all documents and files containing the communications between the Secretary and the 5^th Defendant.  He submitted that the 5^th Defendant’s lawyers could not have spent 14.5 hours without looking at those documents.

15.  The Plaintiff submitted that by instructing counsel to suppress the disclosure, there must have been a conspiracy by the 5^th Defendant.

Defendant’s grounds

16.  Mr. Lui submitted as follows:

(1) The 5^th defendant is willing to deposit with the taxing master all papers and vouchers relating to all items contained in the bill of costs (including solicitor’s correspondence and counsel’s advice) in compliance with O.62, r.23, RHC;

(2) There were no documents between the Secretary of Justice and the 5^th Defendant;

(3) The documents to be produced are under legal professional privilege until waived (Hong Kong Civil Procedure 2008, Vol. 1, para. 24/5/22);

(4) The Plaintiff is not entitled to the documents under the rules or PD 14.3 on taxation of costs;

(5) The Court must be careful in ordering disclosure of privileged documents to non-legally represented party (see Goldman v Hesper [1988] 1 WLR 1238 (CA)).

Discussion

17.  Under O. 62, r. 23(1), RHC, the person whole filed his bill of costs for taxation shall deposit with the taxing master all papers and vouchers relating to the items contained in the bill of costs.  PD 14.3 stipulates the lodging of the bundle of all documents relating to the items objected to with the Court 2 clear days before the hearing.

18.  No specific document is listed out in the rules or the Practice Direction, but as a matter of practice, privileged documents such as solicitors’ correspondence and counsel’s advice are produced to the taxing master without disclosure to the other party unless otherwise ordered by the taxing master.

19.  In Goldman v Hesper, the English Court of Appeal referred to the previous O.62, r.29, RSC (the not entirely similar counterpart of our O. 62, r. 23(1), RHC) stipulating the production of the “requisite documents” at the appropriate taxing office, which unless the taxing master otherwise ordered, included solicitor’s correspondence and attendance notes, and cases to counsel to advice and the advice and opinion.

20.  Taylor LJ said at p. 1243 B-G:

“It is therefore clear that there is now a statutory requirement on a claimant for costs to disclose privileged documents to the court.  Normally, where privilege exists it applies to protect disclosure not only to the opposing party, but also to the court. So the rule clearly makes inroads into that general protection.  It follows that once a party puts forward privileged documents as part of his case for costs some measure of their privilege is temporarily and pro hac vice relaxed.  In most cases, as Hobhouse J observed in Pamplin’s case [1985] 1 WLR 689, 695, no problem would arise on taxation about privilege.  However, when the problem does arise the taxing officer has the duty of being fair to both parties: on the one hand, to maintain privilege so far as possible and not disclose the contents of a privileged document to the paying party unnecessarily; on the other hand, he has to see that that party is treated fairly and given a proper opportunity to raise a bona fide challenge.  The contents of documents will almost always be irrelevant to considerations of taxation which are more concerned with time taken, the length of documents, the frequency of correspondence and other aspects reflecting on costs…

It would not be practicable or helpful for this court to seek to lay down any firm criteria as to the circumstances in which such an extreme course may be necessary. All will depend on the facts of the individual case. One factor which may affect the course taken by the taxing officer may be whether the party is represented by a lawyer or costs clerk, or whether he appears in person. Clearly in the former case there would be more opportunity for flexibility in the approach adopted by the taxing officer. He might, for example, think it appropriate to allow disclosure of privileged documents to the paying party's lawyer, but not to be divulged to his client.”

21.  It is obvious that the Plaintiff is trying to seek disclosure of documents which went beyond the necessary consideration for the purpose of taxation, and in a way, to seek the documents alleged to be in existence and prayed for in the action now discontinued.  The action has not gone past the initial stages and no detailed consideration of the contents of the documents is expected to be necessary.  The consideration that the Plaintiff is not represented by any lawyer or law costs draftsman is also relevant.  In any case, I am quite sure that taxing master upon seeing the documents will strike the right balance and see to it the rights of the opposing parties be protected.

22.  In the premises, the appeal is dismissed.

Costs

23.  I awarded the costs of the appeal to the 5^th Defendant as no convincing argument was made as to why costs should not follow the event. 

24.  Mr. Lui asked for gross sum assessment.  The sum proposed was $45,100 inclusive of counsel’s fee and solicitor’s time costs.

25.  Having considered the issues and documents involved, I am of the view that counsel’s fee claimed was reasonable, and I allowed it in full.  I considered that the solicitor’s costs should be less than counsel’s fee by reason of the nature of the work reasonably expected to be involved.  I allowed the gross sum of $25,000.