Case Detail

HCA 1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1994 OF 2012

_______________

BETWEEN
	CHOY BING WING	Plaintiff
	and
	PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)	Defendant

_______________

HCMP 1097/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1097 OF 2013

(ON AN INTENDED APPEAL FROM HCA NO. 1994 OF 2012)

_______________

BETWEEN
	CHOY BING WING	Plaintiff
	and
	PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)	Defendant

_______________

Before: Hon Chow J in Chambers

Date of Hearing: 2 December 2015

Date of Decision: 4 December 2015

________________________

D E C I S I O N

________________________

INTRODUCTION

1. I have before me two applications of the plaintiff (Mr Choy Bing Wing), one in each action, seeking leave to appeal to the Court of Appeal against two orders that I made on 22 October 2015 dismissing the plaintiff’s respective appeals against (i) a charging order absolute made by Master M Wong on 7 August 2015 in HCA 1994/2012, and (ii) another charging order absolute made by Master Hui on 25 September 2015 in HCMP 1097/2013.

Discussion

2. The background facts of these two matters and the reasons for dismissing the plaintiff’s said appeals can be seen from my earlier written decision handed down on 22 October 2015 (“the Decision”). I do not propose to repeat them here.

3. In the two present summonses both dated 3 November 2015, the plaintiff seeks leave to appeal on the ground that important questions or points of law are involved in the proposed appeals. Two questions are identified in paragraph 1 of each summons, as follows:-

“ (a) Whether a Judge may use the words ‘… appears to be correct …’ in his fact-finding process carried out from judgments placed in front of him and the falsities already pointed out to him;
(b) Whether in a case of perjury alleged against a party, the Judge may ignore to resolve the said question, the perjury without denial and go ahead to make a decision with the crime committed and concealed.”

4. In relation to the first question, what I said in paragraph 8 of the Decision was that “[t]he statement that the plaintiff had been sentenced to prison twice appears to be correct as a matter of fact.” That statement was made in response to the plaintiff’s complaint raised in his appeals which I summarised in paragraph 6 of the Decision as follows:-

“ The plaintiff’s skeleton submission consists of five paragraphs. In the first paragraph, the plaintiff states that ‘[t]he enforcement of court’s orders obtained by fraud by the Defendant for the concealment of a crime, perjury, may not be enforced by competent courts.’ At the hearing of the appeals, the plaintiff explained that what he meant was that the defendant falsely alleged that he (the plaintiff) had been convicted of some criminal offences and imprisoned whereas all that happened was that he had been committed for contempt of court on two occasions (in HCMP 4694/2003 and HCMP 1313/2010) for which he was sentenced to 6 months and 4 months’ imprisonment respectively. The plaintiff said that being found guilty of contempt of court was not the same as having committed any criminal offence.”

5. The plaintiff takes exception to the words “… appears to be correct …” in paragraph 8 of the Decision. I am unable to see why those words are objectionable in the context.

6. In so far as the second question is concerned, I do not consider that there is any proper basis for the plaintiff’s allegation that the defendant was guilty of perjury or other criminal conduct or concealment. In any event, as stated in paragraph 8 of the Decision, I do not consider that the alleged perjury or concealment (even if they can be proved) has any bearing on the two charging orders absolute made by Master M Wong and Master Hui respectively.

7. The other two paragraphs of the plaintiff’s summonses merely assert that (i) substantial and grave injustice has been created by the court, and (ii) public interest and justice require leave to be granted. They do not add anything to the matters raised by the plaintiff under paragraph 1 of the two summonses.

8. In my view, the proposed appeals have no reasonable prospect of success. I therefore refuse to grant leave to appeal and dismiss the plaintiff’s two summonses dated 3 November 2015.

Costs

9. The defendant filed two sets of skeleton submissions both dated 27 November 2015, one for each appeal, but did not attend the hearing of the applications, this court having directed that the defendant be excused from attending the hearing (if so advised). In its skeleton submissions, the defendant asked for summary assessment of its costs in the event of the applications being dismissed.

10. When the court asked the plaintiff whether he had any comment on the costs statements attached to the defendant’s skeleton submissions, the plaintiff said he would refuse to pay any costs but did not make any meaningful comment on the costs statements.

11. I consider the proposed appeals to be groundless and amount to an abuse of the court’s process. The defendant should be entitled to its costs, to be assessed summarily on an indemnity basis. I would allow the defendant’s costs in the gross sum of $16,000 in each application, making a total of $32,000.

	(Anderson Chow) Judge of the Court of First Instance
	High Court

Choy Bing Wing, the plaintiff, in person, present

Wilkinson & Grist, for the defendant (appearance excused)

HCA 1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1994 OF 2012

_______________

BETWEEN
	CHOY BING WING	Plaintiff
and
	PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)	Defendant
_______________

HCMP 1097/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1097 OF 2013

(ON AN INTENDED APPEAL FROM HCA NO. 1994 OF 2012)

_______________

BETWEEN
	CHOY BING WING	Plaintiff (Judgment Debtor)
	and
	PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)	Defendant (Judgment Creditor)
	_______________

Before: Hon Chow J in Chambers

Date of Hearing: 19 October 2015

Date of Decision: 22 October 2015

________________________

DECISION
________________________

INTRODUCTION

1. I have before me two notices of appeal issued by the plaintiff (Mr Choy Bing Wing), one in each action.

2. In HCA 1994/2012, Master M Wong made a charging order absolute on 7 August 2015 whereby the plaintiff’s interest as the sole owner of four properties is charged with the payment of various assessed costs and interest thereon ordered to be paid by the plaintiff to the defendant in that action. Master M Wong’s order forms the subject matter of the plaintiff’s notice of appeal dated 17 August 2015.

3. In HCMP 1097/2013, Master Hui made a charging order absolute on 25 September 2015 whereby the plaintiff’s interest as the sole owner of the same four properties is charged with the payment of other assessed costs and interest thereon ordered to be paid by the plaintiff to the defendant in that action. Master Hui’s order forms the subject matter of the plaintiff’s notice of appeal dated 7 October 2015.

4. The plaintiff filed one set of written skeleton submission dated 13 October 2015 in support of the appeal in HCA 1994/2012. At the hearing of the appeals on 19 October 2015, the plaintiff appeared in person and confirmed that he would rely upon the same skeleton submission in support of the appeal in HCMP 1097/2013.

5. The defendant filed two sets of skeleton submission both dated 15 October 2015, one for each appeal, but did not attend the hearing on 19 October 2015, this court having on 15 October 2015 directed that the defendant be excused from attending the hearing (if so advised).

Discussion

6. The plaintiff’s skeleton submission consists of five paragraphs. In the first paragraph, the plaintiff states that “[t]he enforcement of court’s orders obtained by fraud by the Defendant for the concealment of a crime, perjury, may not be enforced by competent courts.” At the hearing of the appeals, the plaintiff explained that what he meant was that the defendant falsely alleged that he (the plaintiff) had been convicted of some criminal offences and imprisoned whereas all that happened was that he had been committed for contempt of court on two occasions (in HCMP 4694/2003 and HCMP 1313/2010) for which he was sentenced to 6 months and 4 months’ imprisonment respectively. The plaintiff said that being found guilty of contempt of court was not the same as having committed any criminal offence. The plaintiff further said that the defendant “concealed” various judgments, including the reasons for decision given by To J in HCA 309/2014 on 29 September 2015, judgments given by Hartmann and Suffiad JJ in HCMP 4694/2003 on 25 October 2005, 7 December 2005 and 12 December 2005 respectively, and judgments given by McMahon and Macrae JJ in HCMP 1313/2010 on 7 January 2011 and 11 February 2011 respectively.

7. The plaintiff referred me to the aforesaid reasons for decision given by To J in HCA 309/2014 which stated that it was alleged, in paragraph 5 of an affirmation of Chan Chi Chiu filed on behalf of the defendant in HCA 309/2015 on 3 August 2015, that plaintiff had been sentenced to prison twice.

8. The statement that the plaintiff had been sentenced to prison twice appears to be correct as a matter of fact. In any event, I am unable to see how the so called false allegation or concealment (even if they can be proved) has any bearing on the two charging orders absolute made by Master M Wong and Master Hui respectively.

9. In so far as the remaining four paragraphs of his skeleton submission are concerned, the plaintiff did not develop any argument in support of them at the hearing of the appeals. In summary, they raise allegations against the conduct of a number of judicial officers which it is not necessary for me to recite in this decision. There is simply no substance in those allegations, and they cannot possibly form any basis to challenge the two charging orders absolute made by Master M Wong and Master Hui respectively.

10. In all, I dismiss the plaintiff’s notices of appeal in the two actions with costs to the defendant. In my view, these appeals are groundless and amount to abuse of the court’s process. I order that the defendant’s costs are to be taxed on an indemnity basis if not agreed.

	(Anderson Chow)
	Judge of the Court of First Instance
	High Court

Choy Bing Wing, the plaintiff, in person, present

Wilkinson & Grist, for the defendant (appearance excused)

HCA 1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1994 OF 2012

____________

BETWEEN
	CHOY BING WING	Plaintiff
and
	PRESIDENT OF HONG KONG INSTITUTE OF	Defendant
	ENGINEERS (HKIE)
____________

Before: Hon Mimmie Chan J in Chambers

Date of Hearing: 1 August 2013

Date of Decision: 1August 2013

Date of Reasons for Decision: 12 August 2013

_______________________

REASONS FOR DECISION

_______________________

1. The plaintiff (“Choy”) is a member of the Hong Kong Institution of Engineers (“Institution”). In October 2012, Choy commenced proceedings against the defendant, named as “President of Hong Kong Institute of Engineers (HKIE)” (“President”), to seek an injunction to prevent the President from continuing disciplinary proceedings against Choy, and for “any judicial remedies as the court thinks fit”.

2. On 29 November 2012, the President applied by summons to strike out Choy’s action, on grounds that the action discloses no reasonable cause of action, is frivolous or vexatious and is otherwise an abuse of process (“Summons”). In response, Choy issued his summons on 6 December 2012, to strike out the Summons.

3. On 31 May 2013, the Master struck out Choy’s action, and further dismissed his application to strike out the Summons.

4. By notice issued on 7 June 2013, Choy appealed against the Master’s decision. After hearing the parties on 1 August 2013, I dismissed the appeal. The following are my reasons.

5. The Institution was incorporated under The Hong Kong Institution of Engineers Ordinance Cap 1105 of the Laws of Hong Kong (“Ordinance”). Under section 3 of the Ordinance, the Institution is established as a body corporate, capable of suing and being sued. A Council of the Institution is established under section 7 of the Ordinance, which Council consists of persons holding the offices of President, Vice‑President, Honorary Secretary, and others. Management of the Institution is vested in the Council, by virtue of section 8 of the Ordinance.

6. A Constitution is adopted by the Council under section 10 of the Ordinance (“Constitution”). Under Article 13 (4) (a) of the Constitution, the Council may appoint a panel from which Boards of Inquiry may be formed for the purpose of considering and making recommendations to the Council in regard to any case of “improper conduct” of a member of the Constitution. If a member is found by the Board of Inquiry (“Board”) to have been guilty of improper conduct, the Council may order the member to be expelled from the Institution, or that his membership be suspended, or that he be reprimanded or be removed as a member. “Improper conduct” is defined in Article 13 (5) to include, inter alia, “conviction by a competent tribunal of a criminal offence which in the opinion of the Council renders a member unfit to be a member”.

7. Choy was committed for contempt of court on 2 occasions (Judgment dated 25 October 2005 in HCMP 4694/2003 and Judgment dated 7 January 2011 in HCMP 1313/2010), for which Choy was sentenced to 6 months’ imprisonment (Ruling as to Penalty dated 7 December 2005 in HCMP 4694/2003) and 4 months’ imprisonment (Judgment on Penalty dated 11 February 2011 in HCMP 1313/2010) respectively.

8. Choy’s complaint, as set out in the Statement of Claim filed in these proceedings, is that disciplinary proceedings were wrongfully instituted by the Institution against him, on the basis that there was a case of “improper conduct” on Choy’s part, by virtue of his having been “convicted of being in contempt of court” and ordered to serve a period of imprisonment.

9. Choy sought to make a distinction between his having been “convicted” of a criminal offence, and his having been “committed” for contempt of court. He sought to argue that contempt of court is not a criminal matter, that he had not been “sentenced” to imprisonment in a criminal manner, that a committal for contempt does not amount to a criminal conviction, and that accordingly, the disciplinary inquiry initiated against him was not justified and had no basis.

10. It is clear from the Judgments referred to in paragraph 7 above that Choy’s committal for contempt of court was based on his words and acts of interference with the due administration of justice, which conduct is classified as criminal contempt (para 110.002, Vol 7(1) Halsbury’s Laws of Hong Kong, 2010 Reissue). The distinction was in fact explained in paragraphs 9 to 16 of the Second Judgment of 12 December 2005 in HCMP 4694/2003.

11. Choy himself argued at the hearing before the court on 6 December 2005 in HCMP 4694/2003 that the contempt of which he stood accused in those proceedings was a criminal contempt. For him to claim otherwise in these proceedings amounts by itself to abuse.

12. Irrespective of the substance of Choy’s complaint as to the alleged lack of legal basis for the disciplinary proceedings commenced by the Institution against him, the Statement of Claim does not disclose any cause of action against the President personally. Choy’s complaint is that the Institution had abused the process of the disciplinary proceedings, and had breached an alleged duty of care owed to Choy as a member of the Institution. No act is pleaded against the President, save that he is alleged to have, “through his servants, insisted to commit a legal wrong based on the persecution by the HKSAR against the Plaintiff … to hold an inquiry against the Plaintiff”. I consider that no arguable cause of action has been disclosed on the pleadings against the President.

13. The claim that the President’s actions, if any, are based on the persecution by HKSAR against Choy is obviously unsustainable, is frivolous and vexatious, and should be struck out.

14. Further, on the evidence filed, according to Article 30 of the Constitution, as a member of the Council of the Institution, the President does not incur any personal liability in respect of any loss or damage incurred through any act, matter or thing done, authorized or suffered by him, being done in good faith for the benefit of the Institution. There is no plea of why and how the President should incur personal liability in respect of the disciplinary proceedings initiated by the Institution against Choy under the Constitution.

15. For all the above reasons, I dismissed the appeal, with costs to the President.

(Mimmie Chan)
Judge of the Court of First Instance
High Court

The plaintiff appeared in person

Miss Bonnie Cheng, instructed by Wilkinson & Grist, for the defendant

HCA 1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1994 OF 2012

____________

BETWEEN
	CHOY BING WING	Plaintiff
and
	PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)	Defendant

____________

Before: Deputy High Court Judge Linda Chan, SC in Chambers

Date of Hearing: 3 May 2013

Date of Decision: 20 May 2013

_____________

D E C I S I O N

_____________

1. At the hearing I dismissed the 2 summonses issued by the plaintiff, namely the summons dated 9 April 2013 for leave to appeal against my orders made on 20 March 2013 and the summons dated 24 April 2013 for recusal of myself from “any further involvement in these proceedings regarding the plaintiff”. I now give the reasons for my decision.

2. So far as the summons for leave to appeal is concerned, the plaintiff contends that there are 4 “important questions on points of law” involved in his intended appeal which are stated in paragraph 1 of the summons. The plaintiff also contends that “public interest and justice require” leave to be granted.

3. I do not consider these are valid grounds for seeking leave to appeal.

4. The so-called “important questions on points of law” are no more than repetition of the arguments raised by the plaintiff in his appeal against the order of Master A Ho dismissing his application to strike out the affirmation filed by the defendant on 10 December 2012. I have in paragraphs 10 to 18 of my Decision dated 28 March 2013 dealt with the plaintiff’s arguments and set out the reasons for rejecting them.

5. Having considered the arguments raised by the plaintiff again, I am not satisfied that the plaintiff’s intended appeal has a reasonable prospect of success. Nor do I consider there is any other reason in the interests of justice why intended appeal should be heard. As the plaintiff has failed to satisfy the threshold for leave to appeal against interlocutory orders stipulated in s 14AA of the High Court Ordinance (Cap 4), the application must be dismissed.

6. I now turn to the plaintiff’s application to recuse me from having further involvement in this action. The grounds for seeking recusal were set out in the plaintiff’s 4^th Affirmation. In essence, the plaintiff alleged that I had “deliberately turned blind eye” to his submissions made at the hearing on 20 March 2013, which he repeated in paragraphs 4 to 8 of his 4^th Affirmation. The plaintiff went so far as to allege that I had “agreed to commit the crime of Conspiracy to defraud after Sakhrani DJHC refused to be the judge after reading [his] skeleton legal submission dated 19 March 2013”.

7. I have no hesitation in rejecting the plaintiff’s arguments.

8. There was absolutely no basis in support of the alleged “conspiracy to defraud” which I consider to be scandalous and vexatious. The allegation was made by the plaintiff in the many letters sent to me (and the other judges) after my Decision had been handed down on 28 March 2013, and repeated in the plaintiff’s 4^th Affirmation where he referred to and relied on the letters. It is clear that the plaintiff made this allegation with a view to intimidate the court which I consider to be wholly improper.

9. As for the plaintiff’s argument that I had “deliberately turned blind eye” to his submissions made at the hearing on 20 March 2013, I agree with the submission of Ms Ma, solicitor for the defendant, that it is not a ground for recusal.

10. As pointed out by Ms Ma, the test on recusal is “reasonable apprehension of bias” (see Deacons v White & Case Ltd Liability Partnership (2003) 6 HKCFAR 322 at §§18-24). This requires the court to first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, and then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

11. Applying this test to the present case, it is clear that the Plaintiff’s suggestion that I had not considered his arguments raised at the previous hearing, even if correct (which it is not), is not a matter which would lead a fair-minded and informed observer to conclude that there was a real possibility of bias on the part of this court.

12. It follows that no valid ground for recusal has been made out.

13. At the hearing, I ordered the costs of the 2 summonses to be paid by the plaintiff to the defendant and directed the defendant to lodge a statement of costs for summary assessment within 7 days. The defendant lodged the statement of costs on 9 May 2013 seeking a total amount of $50,387. As the arguments raised by the plaintiff are largely identical to those raised at the previous hearing, I consider the number of hours claimed by the main fee earner of the defendant’s solicitors (15.25 hours) to be excessive and would only allow 10 hours. The total costs payable by the plaintiff is assessed at $34,637.

	(Linda Chan, SC)
	Deputy High Court Judge

The plaintiff appeared in person

Ms Ma Kit Wing of Wilkinson & Grist, for the defendant

HCA1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1994 OF 2012

____________

BETWEEN

	CHOY BING WING	Plaintiff
	and
	PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)	Defendant

____________

Before: Deputy High Court Judge Linda Chan, SC in Chambers

Date of Hearing: 20 March 2013

Date of Decision: 28 March 2013

_____________

D E C I S I O N

_____________

1. There are 2 applications before the court:

(1) The Plaintiff’s appeal against the order of Master A Ho made on 11 January 2013 dismissing the Plaintiff’s summons for a stay of the proceedings pending determination of an alleged perjury said to have been made by the Defendant in his affirmation filed on 10 December 2012 (“D’s 1^stAffirmation”), alternatively, an order that D’s 1^st Affirmation be struck out.
(2) The Plaintiff’s summons issued on 8 March 2013 (“P’s Unless Order Summons”) for an unless order to compel the Defendant to file an affirmation in reply to the Plaintiff’s affirmation dated 6 December 2012 (“P’s 1^st Affirmation”) and the Plaintiff’s 2^nd Affirmation dated 7 January 2013 (“P’s 2^nd Affirmation”).

Background

2. The Plaintiff commenced this action on 24 October 2012 seeking an injunction to restrain the Defendant (by himself or through his agents or servants) from continuing the prosecution of disciplinary proceedings brought by The Hong Kong Institution of Engineers (“HKIE”) against him including holding the inquiry hearing on 9 November 2012.

3. By a summons issued on 29 November 2012, the Defendant applies to strike out the action which was returnable on 14 December 2012 (“D’s Strike Out Summons”). This summons was supported by D’s 1^st Affirmation filed on 10 December 2012.

4. On 6 December 2012, the Plaintiff issued a summons to strike out D’s Strike Out Summons (“P’s Strike Out Summons”) which was supported by P’s 1^st Affirmation filed on the same day. One of the grounds relied upon by the Plaintiff in support of his application is that the disciplinary proceedings commenced by HKIE was based on “the purported criminal conviction due to purported contempt of Court”. It is the Plaintiff’s contention that there was “no criminal conviction since contempt of Court is legally civil matter”.

5. At the call‑over hearing before Master H Au‑Yeung on 14 December 2012, orders were made directing the parties to file further evidence in respect of the strike out summonses within the time stipulated, and the strike out summonses to be heard together.

6. By letter dated 3 January 2013, the Defendant’s solicitors informed the Plaintiff that they intended to attend court on 10 January 2013 to fix a date for substantive hearing of D’s Strike Out Summons and P’s Strike Out Summons.

7. The Plaintiff retorted by issuing a summons on 7 January 2013 seeking an order that the proceedings be stayed pending determination of the alleged perjury in D’s 1^st Affirmation, alternatively, that D’s 1^st Affirmation be struck out on the same ground (“P’s Stay Summons”).

8. At the call‑over hearing on 11 January 2013, Master A Ho dismissed P’s Stay Summons with costs assessed at $800 and payable by the Plaintiff within 14 days. This order is the subject matter of the Plaintiff’s appeal.

9. On 8 March 2013, P’s Unless Order Summons was issued.

Appeal

10. In respect of P’s Stay Summons, the Plaintiff alleged in P’s 2^nd Affirmation that the Defendant had in D’s 1^st Affirmation “falsely asserted that [the Plaintiff] had been criminally convicted and criminally sentenced to imprisonment which were totally false”. Such false affirmation, said the Plaintiff, should be dealt with before further conduct of these proceedings.

11. In dismissing P’s Stay Summons, Master A Ho held that there was no evidence to show that D’s 1^st Affirmation is false or that the Defendant had committed perjury. In any event, as D’s 1^st Affirmation was filed in connection with his strike out application, D’s 1^st Affirmation would be considered by the court when dealing with such strike out application. It was not a ground to strike out or to seek a stay of this action.

12. In this appeal, the Plaintiff further contends that:

(1) The order made by Master A Ho is “unlawful” as the Defendant has not filed any affirmation in reply to P’s Stay Summons which, it is said, is required in all adversarial proceedings. The Plaintiff asserts that this is “contrary to Common law under Article 8 of the Basic Law”.
(2) In the various Judgments of the court in HCMP 4694/2003 and HCMP 1313/2010 exhibited to D’s 1^st Affirmation, which are Judgments relating to the previous contempt proceedings brought by the Secretary for Justice against the Plaintiff, there were “no words, conviction and sentence”. As the Court of Appeal held in HCMP 2665/2012, 8 February 2013, the Plaintiff had been “committed to prison for a period of 4 months and was not sentenced to prison”.

13. In my view, the grounds relied upon by the Plaintiff are wholly devoid of merit.

14. First, it is clear that the Defendant did not in D’s 1^st Affirmation said that the Plaintiff “had been criminally convicted and criminally sentenced to imprisonment” as the Plaintiff alleged. Instead, the Defendant said “[t]he Plaintiff had been sentenced to prison twice for contempt of court. He was sentenced to 6‑month imprisonment on 7 December 20005 and 4‑month imprisonment on 11 February 2011” and exhibited the Judgments of the court in HCMP 4694/2003 and HCMP 1313/2010. As the Defendant has never said what the Plaintiff alleged to have been said, I am unable to see how the Plaintiff can assert that the Defendant has given false evidence in D’1^st Affirmation.

15. Moreover, there is no falsity in the Defendant’s statement, in light of the following matters:

(a)     In the Judgment in HCMP 4694/2003, 25 October 2005, at paras 40‑41, it was held that the contempt proceedings against the Plaintiff “is an offence of a quasi criminal nature involving the liberty of the subject”, and was brought “to prevent undue interference with the administration of justice”.
(b)     In fact, the Plaintiff himself contended that the contempt of which he stood accused was a criminal contempt. This can be seen from the Ruling as to Penalty in HCMP 4694/2003, 7 December 2005 at para 9.
(c)     As can be seen from the Ruling as to Penalty in HCMP 4694/2003 and the Judgment on Penalty in HCMP 1313/2010, the Plaintiff was in fact committed to prison for contempt on 7 December 2005 and 11 February 2011 for 6 months and 4 months respectively.

16. Although the Defendant used the word “sentenced” instead of “committed” in D’s 1^st Affirmation, it does not make his statement to become false.

17. In any event, as the Learned Master observed in his Decision, the Plaintiff may at the substantive hearing of D’s Strike Out Summons and P’s Strike Out Summons make submission on the Defendant’s statement including the use of the word “sentenced”.

18. For the above reasons, the Plaintiff’s appeal must be dismissed.

P’s Unless Order Summons

19. The Plaintiff contends that the court should make an unless order to compel the Defendant to file an affirmation in reply to P’s 1^st Affirmation and P’s 2^nd Affirmation failing which D’s Strike Out Summons should be dismissed with costs.

20. At the hearing, the Plaintiff submits that:

(1) The orders made by Master H Au‑Yeung “are unlawful due to uncertainty with more than one mode of direction by inventing the second mode of direction for if any to allow the Defendant not to reply to the affirmation of the Plaintiff”. It is said that Master H Au‑Yeung should have given direction on D’s 1^st Affirmation which, the Plaintiff said, is false.
(2) The orders of Master H Au‑Yeung are “judicial fraud” as they both stated that the court had read an Affirmation of Wong Sze Shing filed on 12 December 2012 and the Affirmation of Poon Ming Hang filed on 3 December 2012 when neither affirmations were ever provided by the Defendant’s solicitors to him.

21. The application is wholly misconceived.

22. There was nothing wrong for Master H Au‑Yeung to order the Defendant to file affirmation in reply to P’s 1^st Affirmation and P’s 2^nd Affirmation, if any. The effect of the orders is to give liberty to the Defendant to file an affirmation in reply within the time stated in the order, should he wish to do so. It is a matter for the Defendant whether he wants to file any affirmation in reply to P’s affirmations. If, as it turned out to be the case, the Defendant did not file any affirmation within the time stipulated in the orders, he would have no right to file any further affirmation to deal with the matters set out in P’s 1^st and 2^nd Affirmations unless he obtained leave of the court to do so.

23. As for the two affirmations recited in the orders of Master H Au‑Yeung, I am told by the Defendant’s counsel that they are affirmations of service and there is no requirement that such affirmations should be served on the Plaintiff. Having read the two affirmations, I am satisfied that they are affirmations of service, as both affirmations only contained facts relating to the service of the documents filed by the Defendant’s solicitors with the court on the Plaintiff. They have nothing to do with the merit or substance of any of the summonses issued by the Plaintiff or the Defendant.

24. As the Defendant has elected not to file any affirmation in reply to P’s 1^st and 2^nd Affirmations within the time stipulated by the orders, which remains the Defendant’ position, there is simply no basis for the Plaintiff to ask the court to make an unless order to compel the Defendant to file any affirmation in reply to P’1^st and 2^nd Affirmations.

25. P’s Unless Order Summons is dismissed.

Costs

26. I make an order nisi that the Plaintiff is to pay the costs of and occasioned by the appeal and P’s Unless Order Summons to the Defendant. The order will become absolute within 14 days from the date of this Decision. I further direct the Defendant to lodge a statement of his costs within 7 days after the costs order has become absolute, and the Plaintiff to lodge a statement of his objections thereto, if any, within 7 days thereafter.

	(Linda Chan, SC)
	Deputy High Court Judge

The Plaintiff appeared in person

Mr Keith Lam, instructed by Wilkinson & Grist, for the Defendant

Please refer to HCMP1097/2013 for the relevant appeal(s) to the Court of Appeal.

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

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