Case Detail

HCMP 613/2010

in the high court of the

hong kong special administrative region

court of appeal

MISCELLANEOUS PROCEEDINGS no. 613 of 2010

(on AN INTENDED appeal from HCMP NOs. 4694 of 2003, 129 of 2007
and cacv nos. 11 of 2004, 193 of 2005)

________________________

HCMP 4694/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003

________________________

BETWEEN

	SECRETARY FOR JUSTICE	Judgment Creditor
	and
	CHOY BING WING	Judgment Debtor

AND

HCMP 129/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2007

________________________

BETWEEN

	THE SECRETARY FOR JUSTICE	Judgment Creditor
	and
	CHOY BING WING	Judgment Debtor

AND

CACV 11/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 11 of 2004

(on appeal from HCMP NO. 4694 of 2003)

________________________

BETWEEN

	CHOY BING WING	Applicant (Judgment Debtor)
	and
	THE SECRETARY FOR JUSTICE HONG KONG SAR	Respondent (Judgment Creditor)

AND

CACV 193/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 193 of 2005

(on appeal from HCMP NO. 129 OF 2007)

________________________

BETWEEN

	THE SECRETARY FOR JUSTICE HONG KONG SAR	Applicant (Judgment Creditor)
	and
	CHOY BING WING	Respondent (Judgment Debtor)

(Heard Together)

Before: Hon Le Pichon and Kwan JJA in Chambers

Date of Decision: 30 April 2010

________________________

D E C I S I O N

________________________

Hon Le Pichon JA:

1. This is an application by Choy Bing Wing (“the applicant”) for leave to appeal the judgment/order of Deputy High Court Judge Carlson dated 22 January 2010. The matter before the judge were appeals from 2 charging orders nisi made by Master B Kwan on 16 July 2008 and 2 charging orders nisi made by Master de Souza on 27 August 2008.

2. The applications for the charging orders nisi were based on unpaid costs orders made in favour of the judgment creditor (the respondent to this application) made in HCMP 4694/2003, HCMP 129/2009, CACV 11/2004 and CACV 193/2005 which costs have been taxed and allocaturs issued in respect of such costs.

3. It is clear from the charging orders nisi that the applicant had to show cause why the charging orders should not be made absolute.

4. On 8 October 2009, the judge’s clerk wrote to the applicant. Inter alia, the letter directed the applicant’s attention to the applicable principles stated in Order 50/9A/23 of the Rules of the High Court and to section 20(3) of the High Court Ordinance. The last paragraph of (12) explained that

“…on an application for a charging order to be made absolute the court is concerned with execution of an order of the court. It is not and will not allow a judgment debtor, Mr Choy in this instance, to re-open matters which led to the making of the orders, which in this case also resulted in the making of orders for costs against him.”

5. On 22 January 2010 the judge heard the judgment creditor’s application that the charging orders be made absolute. From the evidence filed by the applicant for the hearing below, it is clear that the evidence was directed at reopening matters that led to the making of the orders. At the conclusion of the hearing, the judge exercised his discretion and made the charging orders absolute.

6. On 16 March 2010, the judge refused the applicant leave to appeal from his order.

7. By summons dated 27 March 2010 the applicant applied for leave to appeal. The grounds were set out in the statement filed pursuant to O.59 r.2A(1) of the Rules of the High Court. In the supporting affirmation filed on 27 March 2010, the applicant exhibited his seventh affirmation made in HCMP 4694/2003 which was his substantive affirmation for showing cause below.

8. Thus, the papers filed in support of his application for leave from this court were largely directed at reopening matters that led to the making of the orders which resulted in the making of the costs orders against him. They do not set out any substantive ground to show that the judge had erred in the exercise of his discretion. It is also to be noted that although the applicant is a litigant in person, his attention was drawn to the applicable legal principles governing the making of charging orders absolute. In my view, any appeal in this matter would be quite futile.

9. In the circumstances, I would refuse this application for leave to appeal. It is so devoid of merit that I would also make an order under O.59 r.2A(8) that the applicant may not request that this determination be reconsidered at an oral hearing inter partes.

Hon Kwan JA:

10. I agree with the decision of Le Pichon JA.

Hon Le Pichon JA:

11. Accordingly, there will be an order in terms of § 9 above.

(Doreen Le Pichon)
Justice of Appeal

(Susan Kwan)
Justice of Appeal

HCMP 4694/2003, HCMP 129/2007,
CACV 11/2004 and CACV 193/2005

HCMP 4694/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003

_______________

BETWEEN

	SECRETARY FOR JUSTICE	Judgment Creditor
	and
	CHOY BING WING	Judgment Debtor

AND

HCMP 129/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2007

_______________

BETWEEN

	THE SECRETARY FOR JUSTICE	Judgment Creditor
	and
	CHOY BING WING	Judgment Debtor

AND

CACV 11/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 11 OF 2004

(ON APPEAL FROM HCMP NO. 4694 OF 2003)

_______________

BETWEEN

	CHOY BING WING	Applicant (Judgment Debtor)
	and
	THE SECRETARY FOR JUSTICE	Respondent
	HONG KONG SAR	(Judgment Creditor)

AND

CACV 193/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2005

(ON APPEAL FROM HCMP NO. 129 OF 2007)

_______________

BETWEEN

	THE SECRETARY FOR JUSTICE	Applicant
	HONG KONG SAR	(Judgment Creditor)
	and
	CHOY BING WING	Respondent (Judgment Debtor)

_______________

(Heard Together)

Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 22 January 2010

Date of Ruling: 22 January 2010

__________

R U L I N G

__________

1. This is an application by Mr Bing Choy for me to recuse myself from hearing a number of summonses brought by the Secretary of Justice to make a charging order nisi absolute, and Mr Bing Choy really has two grounds. Some years ago now I was the judge at first instance in a case called Ng Yat Chi v Max Credit which involved Mr Bing Choy, in which I made what is known as a Grepe v Loam order, or I think is now referred to as a Restricted Application Order, which had the effect of preventing him from making any applications to the court without first obtaining the leave of a judge of the Court of First Instance. He appealed that decision. I was upheld in the Court of Appeal and he renewed his appeal to the Court of Final Appeal. In its judgment the Court of Final Appeal upheld the original decision made by me and affirmed the judgment of the Court of Appeal.

2. From that, as I understand Mr Bing Choy, he says that where I ruled against him and having made such a strong order against him, to hear these applications today would not be right because it would give the appearance of bias and that any well-informed and reasonable observer at the back of the court listening to these proceedings might say that it simply would not be right that I should hear the matter.

3. But he goes further than that inasmuch as he is now saying that I am not an independent judge. He says I am a judge who would do my master’s bidding, whoever that may be, that my mind is shut and that if allowed to hear these applications for a charging order absolute, I would not bring an independent mind to bear and for that reason as well I should discharge myself.

4. I think that I am not disposed to discharge myself in this matter.

5. So far as the original judgment some years ago now, that was a matter which dealt with completely different issues to what I have before me today, which really is a rather limited jurisdiction and for that reason I do not think it can properly be said that a well-informed neutral observer might say that if I were the judge today, having been the judge on that previous occasion, this would somehow give the appearance of bias.

6. On the much more grievous charge that I simply am not fit to be a judge because I am someone who would do his master’s bidding, I am not going to make any further comment about that. I merely reiterate the fact that I am an independent judge who will bring my own judgment to bear on any matter which is before me.

7. And so for all of these reasons, Mr Bing Choy, I am going to refuse your application, and I propose to now go on and hear the application which is for the charging order to be made absolute. Now, I very much hope that you will stay in court and that you will assist me in respect of that, but I would like to hear counsel for the Secretary for Justice first because it is his application.

	(Ian Carlson)
	Deputy High Court Judge

Louie Wong GC, of the Department of Justice for the Judgment Creditor

The Judgment Debtor in person, present

Application for leave to appeal to Court of Appeal refused. Please refer to CACV11/2004 & CACV193/2005 dated 30 April 2010

HCMP 4694/2003, HCMP 129/2007,
CACV 11/2004 and CACV 193/2005

HCMP 4694/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003

_______________

BETWEEN

	SECRETARY FOR JUSTICE	Judgment Creditor
	and
	CHOY BING WING	Judgment Debtor

_______________

AND

HCMP 129/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2007

_______________

BETWEEN

	THE SECRETARY FOR JUSTICE	Judgment Creditor
	and
	CHOY BING WING	Judgment Debtor

_______________

AND

CACV 11/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 11 OF 2004

(ON APPEAL FROM HCMP NO. 4694 OF 2003)

_______________

BETWEEN

	CHOY BING WING	Applicant (Judgment Debtor)
	and
	THE SECRETARY FOR JUSTICE HONG KONG SAR	Respondent (Judgment Creditor)

_______________

AND

CACV 193/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2005

(ON APPEAL FROM HCMP NO. 129 OF 2007)

_______________

BETWEEN

	THE SECRETARY FOR JUSTICE HONG KONG SAR	Applicant (Judgment Creditor)
	and
	CHOY BING WING	Respondent (Judgment Debtor)

_______________

(Heard Together)

Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 22 January 2010

Date of Ruling: 22 January 2010

__________

R U L I N G

__________

1. Well, in these circumstances it seems to me that it’s entirely proper that the orders nisi should now be made absolute, and that is the order that I propose to make, with costs to be taxed if not agreed.

	(Ian Carlson)
	Deputy High Court Judge

Louie Wong GC, of the Department of Justice for the Judgment Creditor

The Judgment Debtor in person, present

CACV 193/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2005

(ON APPEAL FROM hcmp nO. 4694 OF 2003)

_______________________

IN THE MATTER of an application by the Secretary for Justice for leave to apply for an Order of Committal

and

IN THE MATTER of Civil Proceedings in CACV Nos. 303, 306, 414 of 2002

BETWEEN

	SECRETARY FOR JUSTICE	Applicant
	AND
	CHOY BING WING	Respondent

_____________________

Before: Hon Yeung JA & Tang JA

Date of Hearing: 9 August 2005

Date of Judgment: 9 August 2005

Date of Handing Down Reasons for Judgment: 18 August 2005

_____________________________

reasons for judgment

_____________________________

Hon Yeung JA (giving reasons for judgment of the Court):

1. On 9 August 2005, we dismissed the appeal by the Respondent (Mr Choy Ping Wing) with costs. We indicated that we would give our reasons in writing and this we now do.

2. The Applicant (the Secretary for Justice) obtained an ex parte order for committal against the Respondent from Hartmann J on 29 October 2003. Pursuant to such order, a Notice of Motion (the Notice of Motion) was issued on 10 November 2003, seeking to commit the Respondent for contempt of court.

3. On 10 December 2003, Ma CJHC gave directions relating to the further conduct of the contempt proceedings and a hearing date was fixed.

4. On 12 December 2003, the Respondent applied to strike out the Notice of Motion, which application was dismissed by Ma CJHC with costs on 14 January 2004.

5. The Respondent appealed; and the Court of Appeal, after a hearing on 26 November 2004, dismissed his appeal on 3 December 2004.

6. The original hearing date had to be put off due to the aforesaid interlocutory proceedings.

7. On 8 June 2005, Hartmann J, in the absence of the Respondent who chose not to appear, again set down the hearing of the Notice of Motion and gave directions on the filing of evidence.

8. The Respondent appealed against Hartmann J’s directions.

9. The Respondent contended that the Applicant, together with her counsel, had committed fraud in obtaining the ex parte order from Hartmann J on 29 October 2003 and the order from Ma CJHC on 14 January 2004.

10. He suggested that the Applicant had concealed an important decision from the Court and had misled the Court by presenting the case against him as a civil contempt when it should be a criminal contempt.

11. The Respondent also suggested that the Applicant had deceived the Court of Appeal by adducing hearsay evidence when such evidence was inadmissible. The Respondent referred to the Notice of Motion originally dated the 10 November 2003 to point out that the Applicant had intended and did rely on hearsay evidence in obtaining the ex parte order from Hartmann J.

12. The Respondent repeated the suggestion that as the proceeding against him was a criminal contempt, Order 52 of the Rules of the High Court had no application and hearsay evidence should not have been admitted to support the leave application before Hartmann J.

13. In the circumstances, the direction by Hartmann J on 8 June 2005 was made without jurisdiction and was the result of fraud.

14. The Respondent claimed that when the Court of Appeal ruled, in its decision on 3 December 2004, that the question of admissibility of evidence would only be dealt with at the substantive hearing, the Applicant was in fact allowed a “second bite of the cherry” and had resulted in double jeopardy to him.

15. The Respondent further suggested that Hartmann J was not suitable and indeed unfit to give the directions and/or to sit at the hearing after he made “the fundamental fault in granting an ex parte order on the basis of totally inadmissible evidence which in effect amounted to total absence of evidence”.

16. The Court of Appeal had, in its judgment dated 3 December 2004, dealt with the Respondent’s allegation of fraud and his suggestion of wrongful admission of hearsay evidence. Leave to appeal to the Court of Final Appeal was rejected by the Appeal Committee on 27 April 2005.

17. The judgment of the Court of Appeal dated 3 December 2004 was binding on the Respondent; whether he accepted it or not.

18. We wish to adopt the following paragraphs from the judgment of the Court of Appeal:

“ 63. At this early stage, the court is not concerned with the admissibility of evidence or whether the Applicant can successfully prove her allegations against he Respondent nor is the court concerned with the possible defence of the Respondent or whether such defence will succeed.

64. Order 52 Rule 2 stipulates the requirement to obtain leave to apply for committal in the following terms:

‘ An application for such leave must be made ex parte to a single judge, and must be supported by a statement setting out the name and description of the applicant, the name, the description and address of the person sought to be committed and grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.’

65. The purpose of the statement in support of an application for leave is simply to provide the person sought to be committed with enough information to enable him to meet the charge. Sir John Donaldson MR said in no uncertain terms in Chiltern D.C. v Keane [1985] 1 WLR 619 at 622C:

‘ Every notice of application to commit must be looked at against its own background. The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge?’

66. In Aqua-Leisure Industries, Inc and another v Aqua Splash Ltd HCA 18928 of 1998, it was accepted that ‘the statement in support of an application is to be treated in similar manner as an indictment in criminal proceedings, having regard to the criminal nature of the sanctions for the contempt’.

67. The Indictment Rules under Cap 221 provide under Rules 3 that ‘every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

68. There can be no doubt that the statement dated 17 December 2003 filed by the Applicant pursuant to Order 52 Rule 2(2) contains detailed particulars of her allegations against the Respondent. Those particulars are clearly more than adequate to enable the Respondent to meet the contempt charge against him.

69. In the verifying affirmation of Wong Kin Man affirmed on 23 October 2003, court documents such as pleadings, affirmations, judgments and transcripts of hearings were exhibited together with news reports and magazine articles. It is such documents that the Respondent objects to on the basis that they are hearsay documents.

70. Technically, there was no need for the Applicant to exhibit those documents in the verifying affirmation. Order 52 Rule 2(2) only obliges the Applicant to verify the facts relied on, i.e. the contents of the statement containing the information to enable the Respondent to meet the charge.

71. The exhibited documents, including the newspaper reports and the magazine articles, contain further details of the Applicant’s allegations against the Respondent. The Applicant was only trying to provide the Respondent with as much information as possible.

72. How such allegations are to be proved and whether evidence tending to prove those allegations are admissible, as with all evidence in a criminal case, can and should only be dealt with at the substantive hearing.”

19. The nature of the evidence to be adduced by the Applicant and the admissibility of such evidence will be dealt with at the hearing and there is absolutely no basis for suggesting that the ex parte order dated 29 October 2003 was obtained by fraud.

20. The grounds of appeal advanced by the Respondent had already been dealt with and rejected by this Court on the earlier occasion. We agreed with the views expressed in the judgment dated 3 December 2004.

21. The Respondent could not revive and repeat those grounds in this appeal. He could not have “a second bite of the cherry”.

22. The allegation that Hartmann J’s direction on 8 June 2005 was made without jurisdiction, and was the result of fraud was completely unfounded.

23. The suggestion that Hartmann J was not suitable and unfit to give the directions and/or to sit at the hearing was again entirely without merit. It was a blatant attempt to remove a judge whom the respondent perceived, entirely without any foundation, to have erred in granting the ex parte order for committal.

24. We need only repeat the comment by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd and Anor [2005] 1 HKLRD 473 at 513:

“If the court itself is made the object of such a collateral attack, provided that the judge is satisfied that such attack is in substance no more than a vexatious attempt to re-litigate the exhausted matter, there ought generally to be no question of the judge having to disqualify himself from dealing with the matter. The test for disqualification is whether the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that that there is a real possibility that the judge would be biased in dealing with the matter…In the situation postulated, it would be plain to such an observer that the attempt to disqualify the judge is itself part and parcel of the abuse and not such as to give rise to any apprehension of bias. For a judge to recuse himself in such circumstances would be to give in to the abuse.”

25. We found no ground to interfere with Hartmann J’s directions at all. The Respondent’s appeal was therefore dismissed with costs to be taxed.

(W Yeung)
Justice of Appeal

(Robert Tang)
Justice of Appeal

Mr Wesley W C Wong of the Department of Justice for the Applicant.

Respondent: Present, In person.

THE SECRETARY FOR JUSTICE HONG KONG SAR v. CHOY BING WING

Related cases with same parties

Files (5)

“	63.	At this early stage, the court is not concerned with the admissibility of evidence or whether the Applicant can successfully prove her allegations against he Respondent nor is the court concerned with the possible defence of the Respondent or whether such defence will succeed.

	64.	Order 52 Rule 2 stipulates the requirement to obtain leave to apply for committal in the following terms:

		‘	An application for such leave must be made ex parte to a single judge, and must be supported by a statement setting out the name and description of the applicant, the name, the description and address of the person sought to be committed and grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.’

	65.	The purpose of the statement in support of an application for leave is simply to provide the person sought to be committed with enough information to enable him to meet the charge. Sir John Donaldson MR said in no uncertain terms in Chiltern D.C. v Keane [1985] 1 WLR 619 at 622C:

		‘	Every notice of application to commit must be looked at against its own background. The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge?’

	66.	In Aqua-Leisure Industries, Inc and another v Aqua Splash Ltd HCA 18928 of 1998, it was accepted that ‘the statement in support of an application is to be treated in similar manner as an indictment in criminal proceedings, having regard to the criminal nature of the sanctions for the contempt’.

	67.	The Indictment Rules under Cap 221 provide under Rules 3 that ‘every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

	68.	There can be no doubt that the statement dated 17 December 2003 filed by the Applicant pursuant to Order 52 Rule 2(2) contains detailed particulars of her allegations against the Respondent. Those particulars are clearly more than adequate to enable the Respondent to meet the contempt charge against him.

	69.	In the verifying affirmation of Wong Kin Man affirmed on 23 October 2003, court documents such as pleadings, affirmations, judgments and transcripts of hearings were exhibited together with news reports and magazine articles. It is such documents that the Respondent objects to on the basis that they are hearsay documents.

	70.	Technically, there was no need for the Applicant to exhibit those documents in the verifying affirmation. Order 52 Rule 2(2) only obliges the Applicant to verify the facts relied on, i.e. the contents of the statement containing the information to enable the Respondent to meet the charge.

	71.	The exhibited documents, including the newspaper reports and the magazine articles, contain further details of the Applicant’s allegations against the Respondent. The Applicant was only trying to provide the Respondent with as much information as possible.

	72.	How such allegations are to be proved and whether evidence tending to prove those allegations are admissible, as with all evidence in a criminal case, can and should only be dealt with at the substantive hearing.”