CHOY BING WING v. PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)

HCMP 3353/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3353 OF 2015

(ON AN INTENDED APPEAL FROM HCA 1994/2012)

(ON AN INTENDED APPEAL FROM HCMP 1097/2013)

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D E C I S I O N

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Hon Barma JA (giving the Decision of the Court):

1. This was an application by Mr Choy Bing Wing for leave to appeal in respect of orders made by Chow J on 22 October 2015, in two sets of proceedings, HCA 1994/2012 and HCMP 1097/2013. In each of those proceedings, charging orders had been made by a Master over Mr Choy’s interest in four properties owned by him in order to secure payment of orders for costs which had been assessed, together with interest thereon, against Mr Choy in favour of the President of the Hong Kong Institute of Engineers. Each of those proceedings had been brought by Mr Choy as plaintiff against the President of the Hong Kong Institute of Engineers. Mr Choy appealed against the making of those charging orders, but his appeal was dismissed by Chow J. It is against those dismissals that Mr Choy now seeks leave to appeal from this court.

2. For the purposes of this application, Mr Choy has filed a summons seeking leave to appeal, setting out the grounds of the proposed appeal, and an affirmation with exhibits consisting of the decisions and skeleton arguments, and certain correspondence, in the proceedings below. The defendant has not filed any submissions in response, nor does it suggest that it has incurred any costs in dealing with this application for leave.

3. Before Chow J, Mr Choy had argued that his appeal should be allowed because:

(1) That the charging orders had been obtained by fraud or perjury, in that the defendant had falsely alleged in an affirmation that Mr Choy had been convicted of criminal offences and sentenced to imprisonment on two occasions, whereas he had never been convicted of any criminal offence, although he had been committed to prison twice for contempt of court.

(2) According to Mr Choy, a number of judges and judicial officers had been guilty of impropriety in various proceedings in which Mr Choy had been involved.

4. Chow J dismissed Mr Choy’s appeal, holding that:

(1) What had been stated in the defendant’s affirmation was that Mr Choy had been sentenced to prison twice, and that (having been imprisoned twice for contempt of court) this statement appeared to be correct as a matter of fact.

(2) In any event, Mr Choy’s imprisonment on two occasions was irrelevant to the making of the charging orders, so that even if there was some inaccuracy (which Chow J did not consider there was) as to the statement, this was immaterial and could not affect the making of the charging orders.

(3) The allegations against judges and judicial officers were clearly without substance and could not be the basis of any challenge to the charging orders made by the Masters.

5. Having been refused leave to appeal by Chow J on 4 December 2015, Mr Choy now renews the application before us.  Having considered the papers filed by Mr Choy, we are satisfied that the proposed appeal has no reasonable prospects of success, and that leave should be refused.

6. Mr Choy’s draft notice of appeal suggests that there are three “important questions on points of law” that arise, which justify leave being given.  These are:

(1) whether a judge may use the words “appears to be correct” in his fact finding process;

(2) whether, where perjury is alleged against a party, the judge may decline to deal with that issue; and

(3) whether it is contrary to legal principles and precedent for a judge to ignore a decision as to the law contained in a judgment of the Court of Appeal.

7. He also suggests that public interest and justice require that leave be given.

8. As to the first suggested point of law, there is, to our mind, nothing objectionable in the use of the phrase complained of when making factual findings.

9. As to the second suggested point of law, Chow J dealt with the issue by his conclusion (at paragraph 8 of his Decision dated 22 October 2015) where he concluded that the statement that Mr Choy had been sentenced to prison twice appeared to be correct, in the light of the fact that Mr Choy had in fact been imprisoned twice for contempt.  That was a finding that there was no inaccuracy, and hence no perjury, in the statement complained of.  But even if Chow J had not dealt with the point, he was correct in concluding additionally that this statement had no bearing on the making of the charging orders and was irrelevant.

10. As to the third suggested point of law, Mr Choy has not condescended to identify what binding precedent Chow J is said to have overlooked, and this ground is therefore also bound to fail.

11. We can see no basis for the suggestion that either public interest or justice require that leave to appeal be granted in this case.

12. Accordingly, we are satisfied that none of Mr Choy’s proposed grounds of appeal have any prospect of success.  His application for leave to appeal must therefore be dismissed.  Moreover, we are satisfied that the proposed appeal is totally without merit, and will therefore make an order pursuant to RHC Order 59 rule 2A(8) that no party may request this determination to be reconsidered at an oral hearing.

13. As the defendant does not appear to have incurred any costs in relation to this application, we shall make an order nisi that there is to be no order as to costs.