LO KING YEUNG v. EDDIE CHU HOI DICK

CAMP 18/2017

[2018] HKCA 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 482 OF 2017)

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AND

CAMP 19/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 19 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 483 OF 2017)

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AND

CACV 192/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2017

(ON APPEAL FROM HCMP NO 482 OF 2017)

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AND

CACV 193/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 193 OF 2017

(ON APPEAL FROM HCMP NO 483 OF 2017)

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REASONS FOR JUDGMENT

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

1.  On 23 November 2017, we struck out and dismissed these appeals on the ground that they were incompetent as leave to appeal was refused in CAMP 18 and 19 of 2017.

2.  Since then, the Plaintiff took out 4 Notices of Motion (all dated 4 December 2017) to seek leave to appeal to the Court of Final Appeal:

(a)  a Notice of Motion in CAMP 18 of 2017 which was amended on 18 December 2017 without leave;

(b)  a Notice of Motion in CAMP 19 of 2017 which was also amended on 18 December 2017 without leave;

(c)  a Notice of Motion in CACV 192 of 2017 which was also amended on 18 December 2017 without leave;

(d)  a Notice of Motion in CACV 193 of 2017 which was also amended on 18 December 2017 without leave.

We granted leave to amend at the beginning of the hearing upon the application of Mr Ma.

3.  The grounds of application in all these motions are identical. We set them out as follows:

“(1) In matters where there is a prima facie infringement of the Basic Law of the Hong Kong Special Administration Region:-

(a) Whether the constitutional duty of a judicial officer under Basic Law art.104 to uphold the Basic Law a relevant consideration in the exercise of discretion?

(b) If the answer to question 1(a) is affirmative, should significant/sufficient weight be attached to such consideration so as to facilitate a final determination of the dispute on its merit?

(2) Whether the courts below fundamentally erred in their exercise of jurisdiction thereby rendering the decision(s) invalid in:

(a) upholding a stay under s.73(5) of the Legislative Council Ordinance (Cap 542) consequential upon a plaintiff’s failure to apply to pay security for costs?

(b) dealing with the appeal of an interlocutory judgment that finally determined the rights of parties by way of interlocutory appeal?

AND THAT leave is sought also on “or otherwise” ground:

(3) The present appeals, concerning the qualification of two Legislative Councillors currently in office, are of significant public interest.

4.  Written submissions were lodged by the Plaintiff and the Defendant in CAMP 18 of 2017 and CACV 192 of 2017 on these applications pursuant to the directions in PD2.1.  The Defendant in CAMP 19 of 2017 and CACV 193 of 2017 is not legally represented and did not lodge any written submissions. Nor did he attend the hearing.

5.  For present purposes, it is not necessary to discuss in length the arguments of the parties.  In our view, there are fundamental difficulties with the Plaintiff’s applications.

6.  First, in respect of the intended appeals regarding the decisions in CAMP 18 and 19 of 2017, those were decisions refusing to grant leave to the Plaintiff to appeal against the determinations of Au J which, according to our judgment, were interlocutory in nature.  As such leave to appeal is required under Section 14AA of the High Court Ordinance.

7.  Section 14AB of the High Court Ordinance provides that no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.  It was decided by the Court of Final Appeal in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240 that a similar provision in the District Court Ordinance is constitutionally valid.

8.  We do not accept Mr Ma’s submission that the Plaintiff can rely on a constitutional challenge exception to escape from the finality under Section 14AB.  The constitutional challenge alluded to by Ribeiro PJ in HLF v MTC (2004) 7 HKCFAR 167 at [27] is a constitutional challenge in respect of the finality provision itself.  In the present case, there is no constitutional challenge to Section 14AB.  The so-called constitutional challenge raised in the Notices of Motion is in respect of the duty of judges.  Even assuming for a moment that such constitutional challenge is arguable (which, as we shall explain later, is not the case), we do not think it comes within the exception envisaged in HLF v MTC, supra.

9.  Hence, there cannot be any further appeals in CAMP 18 and 19 of 2017.  The Notices of Motion (including the Amended Notices of Motion) in those proceedings are dismissed.

10.  The consequence of the refusal of leave to appeal (which, as we have explained, is not appealable) is that the appeals in CACV 192 and 193 of 2017 were incompetent and struck out as such.  The further implication is that no appealable judgment of this Court came into existence, see the discussion by Ribeiro PJ in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd, supra, under Section C.3 in relation to the reasoning in Lane v Esdaile.  See also the decision of this Court on refusing leave to appeal to the Court of Final Appeal in American International Group Inc v Huaxia Life Insurance Co Ltd HCMP 3417 of 2016, 18 July 2017 at [4].

11.  Further, Question 2(b) as formulated in the Notices of Motion and Mr Ma’s submission under Section A6 in his submissions of 18 December 2017 highlight that what the Plaintiff is actually trying to achieve is to challenge our determination that these appeals are interlocutory in nature.  In this connection, Section 14(5) of the High Court Ordinance provides that no appeal shall lie from a decision of this Court as to whether a judgment or order is final or interlocutory. 

12.  It follows that there cannot be any further appeals in respect of the striking out of CACV 192 and 193 of 2017.  The applications for leave to appeal in those appeals must fail as well.

13.  We shall comment briefly on Question 1(a), the so-called constitutional challenge based on art 104 of the Basic Law.  Mr Ma referred to art 104 and the judicial oath taken by judicial officers to advance the proposition that a judicial officer has a duty to uphold the Basic Law. 

14.  It is trite that a judicial officer should uphold the Basic Law. However, Mr Ma did not explain the basis on which he advanced the bold submission at para 3 of his reply submissions of 8 January 2018 that Au J as well as this Court committed a breach of constitutional duty to uphold the Basic Law.  Insofar as counsel advanced the suggestion that such breach arises from the refusal to permit the Plaintiff to advance his challenge to the Defendants’ holding of office based on the Basic Law arguments due to his own failure in timely compliance with the legal requirement of payment of security, we have no hesitation in rejecting the submission as hopelessly wrong and wholly unarguable. 

15.  The duty of a judge to uphold the law (including the Basic Law) is to apply the law impartially and conscientiously without fear or favour.  This is exactly what Au J and this Court did in these proceedings. The application of the law (including procedural as well as substantive law) may for a variety of reasons lead to the outcome that an argument based on the Basic Law is not capable of being entertained in a particular case.  However, in an adversarial system of administration of justice, it is a mistake to equate such an outcome with the failure of a judge to uphold the law. 

16.  In the present cases, Au J as well as this Court have explained in the respective judgments how the law was applied which led to the outcome as it is.  We cannot see any reasonably arguable basis for suggesting there is any failure on the part of Au J or this Court in upholding the Basic Law.

17.  For these reasons, we dismiss all the Notices of Motion.

CAMP 18/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 482 of 2017)

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_______________

_______________

AND

CAMP 19/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 19 OF 2017

(ON AN INTENDED APPEAL FROM HCMP NO 483 of 2017)

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_______________

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JUDGMENT

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

1.  We have before us two applications for leave to appeal against the decisions of Au J on 31 July 2017 in respect of HCMP 482 of 2017 and HCMP 483 of 2017. By those decisions, the learned judge refused to extend time for payment of security. Those proceedings remain stayed pursuant to Section 73(5) of the Legislative Council Ordinance， Cap 542 [“LCO”].

2.  The Plaintiff applied for directions as to the requirement of leave to appeal and sought leave if it was held to be necessary.  On 24 August 2017, Au J held that leave was necessary and refused to grant leave.

3.  By two summonses issued on 30 August 2017, the Plaintiff renewed the applications for leave before this Court.

4.  As held by Au J, the applications are governed by Section 14AA of the High Court Ordinance and leave should not be granted unless we are satisfied that the appeals have reasonable prospect of success or there is some other reason in the interests of justice why the appeals should be heard: see Section 14AA(4). 

5.  In this connection, though Mr Ma (appearing together with Mr Ting for the Plaintiff) contended that the appeals fall within the scope of Order 59 Rule 21(a) and as such leave is not required, we agree with the ruling of Au J that the decisions to refuse an extension of time to pay security are not determinations of the substantive rights.  We also respectfully agree with the reasoning of the judge at [13] to [16] of the Decision of 24 August 2017.

6.  We reject Mr Ma’s submission that the orders of 31 July 2017 were analogous to the striking out of the Plaintiff’s cases for want of prosecution.  Au J did not strike out the proceedings.  The judge only declined to give directions for payment of security out of time.  The stay of the proceedings is not occasioned by the orders of Au J.  It is prescribed by statute under Section 73(5) of the LCO.  The inability of the Plaintiff to proceed with the case was due to his own delay in making applications for directions to pay security and the effect of that statutory provision instead of the orders of 31 July 2017.

7.  The decisions of Au J on 31 July 2017 involve the exercise of discretion.  This Court will not interfere with such exercise of discretion unless the judge made errors of principle or exercised his discretion in a manner which is plainly wrong. 

8.  We are not satisfied that there is any reasonably arguable ground calling for this Court’s interference with Au J’s decisions of 31 July 2017.  In the draft Notices of Appeal, Mr Ma contended that the judge erred in failing to take into account some relevant matters. However, counsel accepted that at the hearing on 26 July 2017 he focused his arguments on the question of delay and the explanation for the same.  Mr Ma also accepted in his supplemental submissions attached to a letter of 13 September 2017 from the solicitors for the Plaintiff that a new constitutional point raised in the draft Notices of Appeal which had not been argued before the judge in July 2017.

9.  Thus, it would appear that these matters which are now said to be relevant were not explicitly canvassed by counsel at that hearing.

10.  The judgment of Au J of 31 July 2017 should therefore be read in such context.  Whilst it is correct that the judgment addressed principally the time limit for making the applications for directions to pay security and lack of excuse for the delay on the part of the Plaintiff, it was so structured due to the arguments advanced by Mr Ma before the judge. 

11.  We cannot accept the submission of Mr Ma that the Plaintiff omitted to address other arguments before the judge because he somehow felt constrained by the letters from the court calling for the hearing on 26 July 2017 and the listing of such hearing for 30 minutes only.  We are informed by Mr Tam (appearing for Mr Chu) that the hearing actually lasted for more than 30 minutes.  It was clear to the parties and counsel that the scope of the hearing was not confined to the construction of section 73(5).  All the parties were aware that the hearing would also deal with the applications for extension of time to seek directions for payment of security.  Hence, evidence had been filed to address the delay and submissions were made for excusing the delay. Au J also referred to authorities on extension of time at [23] and [24] footnote 3.

12.  Irrespective of the terms of the letters from the court, counsel who sought an extension on behalf of his client should have adverted to all relevant matters in support of the application at the hearing.  If counsel did not refer to a matter, it can hardly be a ground for complaint that the judge made no explicit reference to the same in his judgment. 

13.  In any event, we are not satisfied that Au J failed to take account of the matters set out at para 1(1) and (2)(c), (f), (g), (h) and (i) of the draft Notices of Appeal.  Those matters must have been obvious to everybody involved.  It is plain to us that the judge did not feel obliged to refer to the same explicitly simply due to the manner in which Mr Ma advanced his submissions at the hearing of 26 July 2017.

14.  In our view, the matters set out at para (2)(d) and (e) in the draft Notices of Appeal are of little moment as they could not arguably have any bearing on the Plaintiff’s duty to proceed with these cases expeditiously and the consideration as to whether extension should be granted. 

15.  We are also in agreement with the judge for rejecting these grounds as reasonably arguable at [20] to [23] of the Decision of 24 August 2017.

16.  We cannot see any new constitutional point.  We agree with Au J that it was simply a matter of application of principles discussed in earlier cases to the specific factual circumstances of these cases.  Dressing it up as a “new constitutional point” cannot provide a valid basis for exercise of discretion in favour of the Plaintiff.

17.  In our view, the intended appeals are completely devoid of merit.  The Plaintiff has failed to satisfy us as to the requirements in Section 14AA(4).

18.  For these reasons, we dismiss the summonses of the Plaintiff.

19.  Mr Tam put in a statement of opposition on behalf of Mr Chu.  We order the Plaintiff to pay the costs of Mr Chu in CAMP 18 of 2017.  Having considered the statement of costs of Mr Chu, we fix such costs at $79,210.

20.  As said, the applications are totally without merit.  Pursuant to Order 59 Rule 2A(8), we further order that no party may request our determination herein be reconsidered at an oral hearing inter partes. 

21.  In the absence of leave, appeals brought by the Plaintiff in CACV 192 and 193 of 2017 are incompetent.  Unless the Plaintiff advances written submissions otherwise within 7 days from the handing down of this judgment, those appeals would be struck out without further notice.