Case Detail

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

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93540-EN-2014-06-13

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

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CACV 172/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2013

(ON APPEAL FROM HCA NO. 1994 OF 2012)

________________________

BETWEEN

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

________________________

Before : Hon Lam VP, Lunn and Macrae JJA in Court

Date of Hearing: 13 June 2014

Date of Judgment: 13 June 2014

____________

JUDGMENT

____________

Hon Lam VP (giving the Judgment of the Court):

1. On 10 March 2014, the Plaintiff issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal against our decision on 19 February 2014. By that decision, for the reasons set out in our judgment of 19 February 2014, we ordered that unless the Plaintiff shall produce the draft appeal bundle by 5 March 2014, his appeal shall be struck out without further notice.

2. On 11 April 2014, the Plaintiff issued another Notice of Motion seeking to have Lam VP and Macrae JA recused for the hearing of the application. The grounds of that application were set out in the Notice as follows:

“1. Lam VP had acted unlawfully against the Plaintiff in HCA No. 2351/2005 aiding and abetting Hartmann/Suffiad JJ in the conspiracy for defraud by issuing counterfeit warrants to Police, the offence S72 of Crimes Ordinance Cap 200; and had shown to be dishonest for his cover-up of perjuries committed by Wilfred Wong and Ng S.M. the two witnesses who had asserted without proof in HCAP No. 8/2007 contrary to the legal principle of the law on evidence required of Lam in the administration of the law/justice.
2. Macrae JA had committed offence S72 of Crimes Ordinance Cap 200 issuing counterfeit warrant to Police in the conspiracy of defraud Choy Bing Wing the Plaintiff in HCMP No. 1313/2010; and had shown to be dishonest for is cover-up of perjuries committed by Wilfred Wong and Ng S.M. the two prosecution witnesses in HCCC No. 182/2012 ignoring his duty as required to the onus of proof of the prosecution.”

3. On 5 May 2014, Lam VP directed that the recusal motion shall be heard on 13 June 2014 (the date scheduled also for the hearing of the leave application). It was also directed that if any members of the court decided to recuse from hearing the matter, the application for leave shall be re-fixed to be heard by another division.

4. On 8 May 2014, the Plaintiff issued a third Notice of Motion seeking to have the direction of 5 May 2014 set aside and the hearing date of 13 June 2014 vacated. The grounds for the application, as set out in the Notice, were:

“1. The recusal is made on the grounds of judicial frauds committed by both Lam VP and Macrae JA in their conspiracies of defrauds in HCA 2351/2005 and HCMP 1313/2010 respectively. Choy is waiting for both Lam’s and Macrae’s replies to the release of the tape recordings of HCA 2351/2005 and HCMP 1313/2010 as applied for. Choy’s affirmation against Lam/Macrae will need be filed and shall be filed as soon as Choy receives Lam’s and Macrae’s replies.
2. Lam VP should not continue to be involved in giving directions nor deal with the matters. His present purported Direction is abusive in turning blind eye to my right of appeal against any adverse outcome of the recusal application violating Articles 35 and 87 of the Basic Law in that Choy’s judicial remedies of appeal to two judges of Court of Appeal to any adverse outcome of the recusal applications heard on 13/6/2014 is deprived by the said Judicial direction and Lam’s said Direction violates the legal principle of the rule of natural justice in that no man a judge in his own cause, per Egerton V Lord Derby (1613) 12 Co. Rep. 114. As such, Lam’s Direction is void and unlawful and has no legal binding effect.”

5. Since then, the Plaintiff wrote several letters to the court alleging “judicial frauds” against two members of this court and to have the hearing of 13 June 2014 vacated.

6. The test for recusal, as recently applied by the Appeal Committee of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd FAMV No 49 of 2013, 13 May 2014, is as follows: whether a fair-minded and informed observer would conclude that there is a real possibility that the tribunal was biased.

7. The Plaintiff has not filed any evidence in support of the very serious allegations he made in his Notices of Motion of 11 April and 8 May 2014. Lam VP’s involvement in HCA 2351 of 2005 (as Lam J) was the striking out of the Plaintiff’s vexatious claims against, amongst others, Hartmann J and Suffiad J in respect of their earlier judicial decisions. The reasons for the striking out were fully and adequately set out in the judgment of 23 December 2005 (reported in [2006] 1 HKLRD 666). The Plaintiff did not appeal against that decision. The Plaintiff has absolutely no rational or legal basis to transform that striking out into the “aiding and abetting Hartmann/Suffiad JJ in the conspiracy for defraud by issuing counterfeit warrants to Police”.

8. The allegation in respect of “the perjuries committed by Wilfred Wong and Ng S.M.” in HCAP No 8 of 2007 is equally bizarre. That case has nothing to do with the Plaintiff. Lam J, as the trial judge in HCAP No 8 of 2007 accepted the evidence of these two witnesses. An appeal against the judgment of Lam J was dismissed by the Court of Appeal and leave to appeal was refused by the Court of Final Appeal.

9. The same observation can be made with regards to the allegation against Macrae JA concerning HCCC No 182 of 2012 in respect of the evidence of these two witnesses. Again the Plaintiff had no involvement in that case. That trial took place before a jury and the verdict of guilt was returned by the jury. The Plaintiff’s allegation of dishonest cover-up for perjuries committed by these witnesses is not supported by any evidence or reasons.

10. As regard HCMP 1313 of 2010, Macrae J (as he then was) sat together with McMahon J in December 2010 in a committal of the Plaintiff for contempt of court. The reasons for finding the Plaintiff guilty were fully set out in the judgment of 7 January 2011. A warrant for the apprehension and committal was issued against the Plaintiff. When he was brought back to court, the Plaintiff challenged the warrant. For the reasons given in a judgment of 11 February 2011 in HCMP 1313 of 2010, the challenge was rejected. There is no basis for suggesting Macrae J had issued a counterfeit warrant. The Plaintiff did not appeal against that judgment.

11. A fair-minded and informed observer will have the benefit of the relevant judgments. Bearing in mind what has been set out above, such an observer cannot possibly conclude there is any real possibility of this court being biased in our consideration of the Plaintiff’s application for leave to appeal.

12. As the Appeal Committee observed at para 38 of the Reasons for Determination in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd FAMV No 49 of 2013,

“Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for.”

13. This is particular apposite in view of what we said at para 17 of our judgment of 19 February 2014 in the present appeal.

14. We do not see any merits in the two Notices of Motion of 11 April and 8 May 2014 in seeking the recusal of Lam V-P and Macrae JA and the vacation of today’s hearing. We dismissed the application for recusal and the Notice of Motion of 8 May 2014.

15. We proceed to deal with the application for leave to appeal. The Notice of Motion of 10 March 2014 set out three questions,

“(i) Whether the refusals to release the tape recordings of hearings for appeals constitute obstructions to judicial remedies in the cover-ups of the fabrications of judgments/decisions/orders/transcripts by judges of the courts below provided and prescribed under Article 35 of the Basic Law.

(ii) Whether the Court of Appeal has the statutory jurisdiction in the striking-out of appeals for want of bundle as required under Order 59 r.9 of Cap 4A provided and prescribed in S54 of High Court Ordinance of Cap 4.
(iii) Whether it is a judicial nonsense of Court of Appeal for want of appeal bundle to enter into the arena in the exercise of inherent jurisdiction in the vacuum.”

16. Question (i) is not engaged. As we have said in our judgment of 19 February 2014, the transcript of the hearing had been produced and the Plaintiff simply failed to collect the same.

17. As regards question (ii), as explained in our judgment of 19 February 2014, it is well established that this court can strike out an appeal which is an abuse of process. As to the circumstances under which we exercised this power, it is not simply because the Plaintiff failed to produce a draft bundle. The persistent contumelious disobedience by the Plaintiff to directions of the court stultified the expeditious and efficient disposal of the appeal. This was the basis on which we made the unless order we did. It was an exercise of discretion on the very unusual circumstances of this case. No question of great general or public importance arises.

18. For the same reason, question (iii) is a distortion of what we have decided.

19. The requirement of Section 22 of the Hong Kong Court of Final Appeal Ordinance is not satisfied and leave is therefore refused. The Notice of Motion of 10 March 2014 is dismissed.

20. We also order the Plaintiff to pay the costs of the Defendant in respect of these Notices of Motion, such costs are to be taxed if not agreed.

(M H Lam)
Vice President

(Michael Lunn)
Justice of Appeal

(Andrew Macrae)
Justice of Appeal

The plaintiff was not represented and did not appear

Written Submission by Wilkinson & Grist, for the defendant and did not appear

CACV 172/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 172 OF 2013

(ON APPEAL FROM HCA NO. 1994 OF 2012)

________________________

BETWEEN

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

________________________

Before : Hon Lam VP, Lunn and Macrae JJA in Court

Date of Hearing : 19 February 2014

Date of Judgment : 19 February 2014

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1. The Plaintiff commenced proceedings against the Defendant in October 2012 to challenge the disciplinary proceedings by the Hong Kong Institute of Engineers against him. His claim was struck out by a master on 31 May 2013. The Plaintiff appealed against that decision. That appeal was heard and dismissed by Mimmie Chan J on 1 August 2013. Reasons for Decision were handed down by the judge on 12 August 2013.

2. On 19 August 2013, the Plaintiff, acting in person, served a Notice of Appeal, appealing against the decision of the judge. At the time of the lodging of Notice of Appeal, the Plaintiff received the following set of standard directions from the Registrar of Civil Appeals:

“1. Within 14 days of the setting down of an appeal, an appellant is to submit to the Registrar of Civil Appeals an appeal bundle containing only the documents relevant to the hearing of the appeal.
2. The above time limit shall be strictly followed. An application for an extension of time for lodging an appeal bundle shall be made to the Registrar of Civil Appeals by letter, setting out the reason for the extension sought.
3. In the event that an appellant fails or refuses to comply with any of the directions given by the Registrar in relation to the preparation and lodging of the appeal bundle, the Registrar may vacate the date fixed for the hearing of an appeal or refer the matter to the Vice President of the Court of Appeal or a single Justice of Appeal for his or her further directions.
4. The above directions are without prejudice to any other directions the Court of Appeal or the Registrar of Civil Appeals may give in accordance with Practice Direction 4.1.”

3. Though he filed a Notice of Setting Down of an appeal on the same date, he wrote to the Chief Judge and the Registrar on 21 August 2013 in the following terms:

“ I refer to the step to file the Draft Index within 14 days of setting down of the Appeal and point out that the same is not meaningful unless and until a really just and proper appeal can be held. Almost all of the Judges have encounters with me before and have acted against me without regard to the spirit of the law in their conspiracies to defraud Choy Bing Wing.
2. Please wait till I have only honest and fair Appeal Judges to handle my subject appeal. Otherwise, I cannot proceed further in accordance with my rights guaranteed under the Basic Law, the safeguards of my rights, copy of such safeguards enclosed.”

4. In view of the intimation by the Plaintiff, the Registrar replied as follows on 30 August 2013:

“1. If the Appellant needs more time to prepare draft appeal bundle, the Appellant can make the application for extension of time by way of letter with supporting reasons for the consideration of Registrar of Civil Appeals.
2. The Appellant should note that the Registrar of Civil Appeals will not grant leave to the Appellant to fix date for the appeal hearing until draft appeal bundles have been approved.
3. The Appellant should also note that when he is granted leave to fix date for the appeal hearing, if he has any objection to the composition of the Court, he can make the application for the Court’s consideration.”

5. On 2 September 2013, the Plaintiff wrote to the Registrar about several appeals, one of which is the present one. On the present appeal, he made a request for the transcript and tape for the hearing before the judge. He also advanced serious and abusive attacks against various judges in the letter.

6. On 10 September 2013, a master directed that the time for the Plaintiff to submit draft appeal bundles be extended to 30 September 2013.

7. On 11 September 2013, the Plaintiff wrote to the Registrar reiterating that he needed to have the transcript and tape of the hearing before the judge for the preparation of the appeal bundle.

8. There was then a series of correspondence over the release of the transcript. It is not necessary to recite the correspondence in this judgment. It is sufficient to highlight the following,

(a) The transcript was not made available by 30 September 2013;
(b) The Plaintiff did not produce the draft appeal bundle by 30 September 2013.

9. In the meantime, solicitors for the Defendant wrote to the court asking the appeal be dismissed due to the non-compliance with the directions of the Registrar.

10. The matter was brought to the attention of Lam VP who gave the following directions on 29 October 2013:

“1. Transcript of the hearing of 1 August 2013 be produced and copy be supplied to Choy Bing Wing on payment of prescribed charges. The Court shall notify him when the transcript is ready for collection.
2. Time for Choy Bing Wing to comply with the Registrar’s direction for submission of draft bundle be extended to 21 days from the date when he is notified of the availability of the transcript.
3. On default of compliance by Choy Bing Wing with para 2 above, the appeal shall be listed for consideration as to whether it should be struck out for want of prosecution, estimated length of hearing: ½ hour.”

11. On 11 November 2013, the Registrar notified the Plaintiff that the transcript was available for collection on payment of the prescribed fees of $412.40.

12. Despite such notification, the Plaintiff did not collect the transcript and took no step in producing the draft appeal bundle for the approval of the Registrar. Instead, he wrote a letter of 18 December 2013 addressed to the Registrar accusing the directions given as without authority and cheating, and the judge as “criminal judge”.

13. Pursuant to paragraph 3 of the directions of 29 October 2013, the appeal was listed for considering whether it should be struck out for want of prosecution.

14. The power of the Registrar to give directions on the preparation of appeal bundles is expressly provided for under Order 59 Rule 9(3). As stated in that rule, the power is to be exercised for the purpose of securing the just, expeditious and economical disposal of the appeal. It is in line with the court’s duty to manage cases under Order 1A Rule 4 that these directions should be given. It is also the duty of a litigant (as well as his legal representative) to comply with such directions as the fulfilment of his duty under Order 1A Rule 3.

15. Though case management directions for appeals are usually given by the Registrar (or a master), judges in the Court of Appeal also have the power to case-manage appeals. Prior to the Civil Justice Reform, such power stems from the inherent jurisdiction of the court to regulate proceedings before it and the power under Order 59 Rule 10(1); see Final Report of the Chief Justice’s Working Party on Civil Justice Reform paras 673-675. Nowadays, this power is reinforced by Order 1A Rule 4 and Order 1B Rule 1. The court’s duty on active case management is equally applicable to appeals as in first instance cases. The expeditious and efficient disposal of appeals is important in the proper administration of justice.

16. The role of the Vice-President and a Justice of Appeal in case management of appeals is also recognised in Practice Direction 4.1 paras 35 and 36.

17. Therefore, Lam V-P did have the power and authority to issue the directions on 29 October 2013. The Plaintiff has a duty to comply with such directions. The non-compliance with such directions in the circumstances of the present case is clearly a contumelious default on the part of the Plaintiff. If his real concern was about the lack of the transcript, it is difficult to understand why he did not collect the same after it became available. No explanation has been offered by him as to his default in this regard. It is also a deliberate attempt by the Plaintiff to delay the disposal of the appeal because his refusal to produce the draft appeal bundle for approval hampered the listing of the appeal proper for final hearing. From his correspondence, it seems he is reluctant to have the appeal heard because of his misguided perception as to the impartiality of the members of the Court of Appeal. The Plaintiff has no proper basis for his allegations of “judicial cheatings” and “collusions”. What he is trying to do is an abuse of the process of the court which has caused unnecessary costs to be incurred by the Defendant. It also caused a wasteful drain on valuable judicial resource which should be more profitably deployed on other cases. We are satisfied that no fair minded and informed observer would consider that there is any risk of his appeal not being heard by an impartial Court of Appeal. The biased and irrational views of the Plaintiff (even if they are expressed in the most inappropriate and virulent languages) cannot give him the right to choose the composition of the Court of Appeal hearing his case.

18. The Court of Appeal has the power to strike out an appeal on the ground of abuse of process, see Hong Kong Civil Procedure 2014 para 59/3/6; Hong Kong Civil Court Practice Vol 1A, para 5476.3. It includes a striking out for want of prosecution (see Incorporated Owners of Tuen Mun Hung Cheung Industrial Center v United HK Ltd CACV 652 of 2000, 12 July 2001; Interasia Bag Manufacturers Ltd v Commissioner of Inland Revenue CACV 400 of 2004, 6 Nov 2009; Re Pattini Kuttige Sampath Thushara Nonis CACV 49 of 2013, 4 Sept 2013; Re Raman Muthuchamy CACV 51 of 2013, 5 Sept 2013), which is a form of abuse of process (see Liquidators of Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935).

19. On the facts of the present case, in view of the abusive conducts of the Plaintiff towards the court and his refusal to comply with proper directions designed for the expeditious and efficient disposal of the appeal and his avowed refusal to have the appeal being heard by a court not of his choice, we are of the view that his appeal is liable to be struck out as an abuse of process. But we would give him one more chance to comply with the directions with the hope that he might repent in light of what we have said in this judgment.

20. We would grant him an extension of time up to 5 March 2014 to produce the draft appeal bundle to the master for approval. Unless he does so, his appeal will be struck out without further order.

21. We would also make a costs order nisi that the Plaintiff shall pay the costs of the Defendant in respect of the striking out of the appeal, such costs to be taxed and payable forthwith.

(M H Lam)
Vice President

(Michael Lunn)
Justice of Appeal

(Andrew Macrae)
Justice of Appeal

The Plaintiff acting in present, absent

Attendance of the Defendant by Wilkinson & Grist is excused