Case Detail

HCAL 1016/2017

[2020] HKCFI 3174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1016 OF 2017

________________________

BETWEEN
	LEUNG KIT HING, DORIS	Applicant
and
	ELECTORAL AFFAIRS COMMISSION	Putative Respondent

________________________

Before: Deputy High Court Judge To in Chambers

Date of Hearing: 28 December 2020

Date of Reasons for Decision: 31 December 2020

_______________________

REASONS FOR DECISION

_______________________

Introduction

1. There are two notices of appeal before the court filed by the Applicant (“Ms Leung”) on 5 November 2020 (the “1^st Notice”) and 24 November 2020 (the “2^nd Notice”). These notices are related to appeals against the master’s orders in relation to taxation of a costs order under these proceedings. These appeals were set down for hearing before me at 9:30 am on 28 December 2020.

2. Under the 1^st Notice, Ms Leung appeals the orders made by Master Lai on 22 and 27 October 2020 respectively,

(a) dismissing her application by way of summons dated 5 October 2020 to set aside the taxation call-over hearing (Paper Disposal) to be held 27 October 2020, with costs to the Electoral Affairs Commission (“the EAC”); and
(b) dismissing her application by way of summons dated 22 October 2020 to stay the taxation call-over hearing (Paper Disposal) to be held 27 October 2020, with costs to the EAC.

3. Under the 2^nd Notice, Ms Leung appeals the orders made by Master Lai on 24 November 2020,

(a) dismissing her application by way of letter dated 9 November 2020 raising objections to the order nisi dated 27 October 2020 (the “Order Nisi”), with costs to the EAC; and
(b) dismissing her application by way of summons dated 23 November 2020 to vacate the hearing on 24 November 2020 to deal with the application referred to in (a) above, with costs to the EAC.

4. On 6 December 2017, Ms Leung commenced these proceedings in HCAL 1016/2017. She made an application for leave to apply for judicial review of the decision of the EAC to hold a Legislative Council by-election to fill the vacancy left by her nephew, Mr Leung Chung Hang (“Mr Leung”), who was disqualified from assuming office as a Legislative Council member. Mr Leung was subsequently made a bankrupt by an order of the Court in HCB 5651/2020 (the “Bankruptcy Proceedings”).

5. On diver occasions since 23 November 2020, Ms Leung kept on pestering the Listing Officer to accept for filing her notices of appeal relating to HCB 5651/2020, and to list those notices for hearing before me on 28 December 2020. Her argument is that the issues in HCB 5651/2020 are inter-related to the appeals in these proceedings. Her previous attempt to file a summons in the Bankruptcy Proceedings was rejected by Au-Yeung J on 23 October 2020 primarily because she had no locus to issue the summons. For expediency reasons, I directed that Ms Leung be allowed to lodge (not to file) the notices of appeal and related documents (the “Bankruptcy Papers”) for my consideration and further direction. Since the notices of appeal have not been formally accepted for filing, they have not been set down for hearing on 28 December 2020.

6. At the time scheduled for hearing on 28 December 2020, Ms Leung did not appear. At 9:47 am, after hearing submission by the counsel for the EAC, I dismissed Ms Leung’s appeals for want of prosecution with costs summarily assessed in the sum of $7,500.

7. Subsequently, Ms Leung appeared at 10:18. She apologized for her lateness. She explained that she had been preparing for this hearing and re-organizing the hearing bundle until 3 am or 4 am and overslept. I accepted her apology.

8. I informed Ms Leung that her appeals had been dismissed for want of prosecution and that I shall make a direction that the Registry shall refuse her filing of the Bankruptcy Papers as she had no locus standi to be a party to the Bankruptcy Proceedings. Ms Leung submitted that the order dismissing her appeals was obtained by default and applied to have the hearing be restored, adjourned to a date to be fixed and for interim stay to be granted. I informed her that I would dismiss her application because on the basis of the documents and submissions she had lodged she had not shown she had any chance of success in her appeals.

9. Then, Ms Leung made an oral application for leave to appeal. I refused as she had not shown any chance of success in these appeals. Ms Leung said that she stayed up to 4 am to re-organize a new appeal bundle (the “re-organized bundle”) and pleaded that I should read her re-organized bundle and a DVD of the transcript of the hearing before Chow J on 2 February 2018 before refusing her leave. Out of abundance of caution, I agreed to hear her application and reserve my decision after reading her re-organized bundle and DVD.

Background to the appeals

10. Ms Leung’s application for leave to apply for judicial review was dismissed by Chow J with costs to the EAC on 9 February 2018. The order was sealed on 21 February 2018. That is the Costs Order which is the subject matter of these appeals.

11. Ms Leung appealed to the Court of Appeal in CACV 47/2018. After repeated delays, her appeal was dismissed by the Court of Appeal on 23 August 2018, pursuant to an unless order. She sought relief from sanction of the unless order, but her application was dismissed on 10 December 2018 with costs to the EAC. In refusing to grant her relief from sanction and thereby dismissing her appeal, the Court of Appeal had considered the merit of the appeal. The Court of Appeal upheld the decision of Chow J and specifically held that:

(a) Ms Leung has no standing to launch this application for judicial review;
(b) Ms Leung’s interpretation of section 36(1)(e)(ii) of the Legislative Council Ordinance, Cap 542 (“the LCO”), which was the sole basis of her application for leave to apply for judicial review, is plainly wrong;
(c) there is no reasonably arguable basis for Ms Leung to challenge the determination of the Court of Final Appeal in Yau Wai Ching v Chief Executive of HKSAR[1];
(d) there is no proper basis for the Court of Appeal to disturb the costs order made by Chow J.

The Court of Appeal expressed a strong sentiment that it is “of the firm view that Ms Leung’s appeal is totally unmeritorious” and that “the re-opening of the appeal is futile”.

12. On 18 March 2019, the Court of Appeal refused Ms Leung’s application for leave to appeal its judgment to the Court of Final Appeal. On 26 September 2019, the Appeal Committee of the Court of Final Appeal also refused her leave to appeal to the Court of Final Appeal. Thus, the issues determined by Chow J and the Court of Appeal are final for all intents and purposes. Ms Leung’s liability to pay costs under Chow J’s Costs Order is now cast in stone and is un-appealable. All the orders made by the masters which Ms Leung is now appealing are orders relating to the taxation of those costs.

The proceedings before Master Lai and Master J Wong

13. The Department of Justice (“DoJ”) commenced taxation proceedings of Chow J’s Costs Order on 3 February 2020. DoJ served the Bill of Costs (the “Bill”) and a draft Notice of Commencement of Taxation (the “Draft Notice”) on Ms Leung. DoJ also issued a letter to the Registry of the High Court enclosing the Bill and the Draft Notice. At the time, the Registry was closed for business due to outbreak of COVID-19. On 9 March 2020, when the Registry re-opened, DoJ filed the Bill and Notice of Commencement of Taxation. It also served a copy on Ms Leung by ordinary post. Thereafter, the taxation proceedings were met with much delays and great resistance by Ms Leung.

14. On 7 May 2020, DoJ applied to set the Bill down for taxation (“Setting Down Application”). A copy of the application was served on Ms Leung on 27 May 2020 by ordinary post. The application was fixed for hearing before Master J Wong on 23 June 2020. On the same day, Ms Leung issued a summons to (i) strike out and dismiss the Bill and Notice; and (ii) set aside the Costs Order (“May Summons”).

15. Just on the day before the hearing of the Setting Down Application, Ms Leung sought leave to file a summons to vacate the hearing on 23 June 2020. Her application was refused by Master J Wong.

16. However, on 23 June 2020, Master J Wong adjourned the hearing sine die with liberty to restore after determination of the May Summons. On the same day, Ms Leung also issued a summons to vary or discharge Master J Wong’s directions made on 22 June 2020. That summons was dismissed by Master J Wong on 17 July 2020 with costs to the EAC. This incident is mentioned for completeness. It has no bearing on the appeals. As a result of the adjournment, Ms Leung had what she wanted for the time being.

17. On 3 September 2020, Ms Leung issued a summons to adjourn the hearing of the May Summons sine die with liberty to restore (“September Summons”).

18. On 16 September 2020, Chow J dismissed the May Summons and September Summons. As a result, the taxation proceedings were restored. On 23 September 2020, Master J Wong directed that the taxation call-over hearing (Paper Disposal) be fixed on 27 October 2020 before Master Lai.

19. On 29 September 2020, Ms Leung issued a summons seeking leave to appeal Chow J’s order dismissing the May Summons and September Summons. Following that, she took a number of steps which led to the present appeals. On 5 October 2020, she issued two identical summonses to set aside the taxation call-over hearing (Paper Disposal) fixed before Master J Wong and Master Lai on 22 October 2020.

20. On 22 October 2020, Master J Wong and Master Lai dismissed the two summonses with costs to the EAC. Ms Leung issued another summons to stay the taxation call-over hearing (Paper Disposal) fixed immediately before the taxation call-over hearing (Paper Disposal) scheduled to be heard on 27 October 2020.

21. On 27 October 2020, Master Lai dismissed Ms Leung’s summons dated 22 October 2020. Master Lai’s orders dated 22 and 27 October 2020 dismissing Ms Leung’s summonses are the subject matters of Ms Leung’s 1^st Notice filed on 5 November 2020.

22. After making the above order, Master Lai proceeded to tax the Bill and made the Order Nisi and made a direction that any party objecting to the Order Nisi, should apply to him in writing stating the grounds of objection.

23. Pursuant to Master Lai’s directions, on 9 November 2020, Ms Leung applied by way of letter raising objections to the Order Nisi. A hearing was fixed on 24 November 2020 to deal with the objections.

24. Again, a day before the hearing, Ms Leung issued a summons to vacate the hearing on 24 November 2020 before Master Lai.

25. On 24 November 2020, Master Lai dismissed Ms Leung’s objection by letter dated 9 November 2020 and application by summons to vacate the hearing dated 23 November 2020. After hearing the parties, he made the Order Nisi absolute. These orders formed the subject matters of Ms Leung’s 2^nd Notice filed on 24 November 2020.

26. In the meantime, on 11 November 2020, Chow J refused Ms Leung’s application for leave to appeal his order dismissing the May Summons and September Summons. Ms Leung did not further pursue that appeal.

An overview of the grounds of appeal

27. Ms Leung lodged a number of bundles before the hearing and the re-organised bundle after the scheduled hearing. Together these bundles are 14 cm thick. These bundles contain multiple copies of some of the documents, with or without amendments. The handwriting in the documents are not wholly or easily legible. Her submissions in the documents are convoluted, unfocussed and difficult to follow. The overall theme of the appeal as could be gathered from the documents in the bundles and her submission in court are that (1) she has standing to apply for this judicial review; (2) she has an important public interest to pursue by her application for judicial review; (3) Chow J’s Costs Order should not have been made; (4) the taxation proceedings should be stayed pending appeal; and (5) the taxation proceedings should be set aside and hearing should be vacated. All these grounds had been rehearsed before Chow J and the Court of Appeal and were dismissed.

Discussion

28. First, on the issue of standing, Chow J held at paragraph 17 of his judgment dated 9 February 2018 that Ms Leung has no standing in this matter. He said[2]:

“17. I also consider it to be plain that the Applicant lacks standing in this matter. Leung and Yau, being the persons directly affected, were represented by highly experienced counsel and they fully participated in the relevant legal proceedings relating to their disqualification at all levels. That being the position, I am unable to see how the Applicant can be said to have standing to mount another legal challenge on the same cause or matter.”

29. Chow J’s finding was upheld by the Court of Appeal in its judgment in CACV 47/2018 dated 10 December 2018. In delivering judgment of the court in dismissing Ms Leung’s appeal against the judgment of Chow J, Lam VP said[3]:

“14.  Turning to the merits of the appeal, we find the appeal to be wholly unmeritorious and vexatious. According to the “(Ex parte) Notice of Appeal” the grounds of appeal are as follows:
(a) At the leave stage, an application for judicial review was ex parte. Accordingly, the judge should not have made any costs order against the applicant (§§6 and 7).
(b) The applicant had “direct and obvious interests in the subject matter of the application” and the judge erred in holding that she lacked standing in the matter (§8).
(c) The putative respondent erred in relying on section 36(1)(e)(ii) of the Legislative Council Ordinance (Cap 542) (§9).
(d) Section 21 of the Oaths and Declarations Ordinance (Cap 11) is unconstitutional. The Appeal Committee had wrongly dismissed the application of Mr Leung and Ms Yau to appeal to the Court of Final Appeal and the applicant had referred the matter to the European Court of Human Rights (§§10 – 13).
15.  We have read and considered the two judgments of Chow J dated 9 February 2018 ([2018] HKCFI 255) and 15 February 2018 ([2018] HKCFI 359).
16.  First and foremost, we agree with Chow J the applicant has no standing to launch this application for judicial review. Chow J had dealt with the issue of the applicant’s lack of standing at [17] of the judgment of 9 February 2018. The law on standing has recently been discussed in 郭卓堅 v 立法會主席梁君彥[2018] HKCA 672, see also the judgment of Chow J in Kwok Cheuk Kin v Commissioner of Police HCAL 55/2017 at [34]. The applicant failed to demonstrate any ground that she should be allowed to advance the present challenge given that Mr Leung and Ms Yau had already done so unsuccessfully.
17.  For the reasons given by Chow J at [14] of the judgment of 9 February 2018, the applicant’s interpretation of section 36(1)(e)(ii) of the Legislative Council Ordinance (Cap 542) is plainly wrong. There is also no reasonably arguable basis for the applicant to challenge the determination of the Court of Final Appeal in Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390.
18.  Chow J’s decision on costs was clearly explained in [19] – [21] of the judgment of 9 February 2018. The judge applied the principles laid down in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 in ordering costs against the applicant. The applicant failed to persuade us that there is any proper basis for this Court to disturb such exercise of discretion.
19.  Accordingly, we are of the firm view that the appeal is totally unmeritorious. The re-opening of the appeal is futile.”

30. Second, Ms Leung’s claim of important public interest was impliedly dismissed by Chow J in his judgment dated 9 February 2018. Her claim was expressly dismissed by Lam VP in the Court of Appeal in CACV 47/2018. Lam VP confirmed that Ms Leung’s appeal was obviously vexatious and “did not raise any arguable question of great general public importance.” His Lordship said[4]:

“10. Having considered all the materials placed before us, we hold as follows:
(a) Leave to appeal to the Court of Final Appeal is refused as Ms Leung’s application for judicial review is, as explained in our judgment of 10 December 2018, obviously vexatious. She did not raise any arguable question of great general public importance. Nor do we see any reasons in the interest of justice to submit the intended appeal to the Court of Final Appeal. Ms Leung does not satisfy the statutory leave threshold in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap.484;
(b) As the putative respondent had taken part in the appeal before us and we have made costs order in favour of them in our judgment of 10 December 2018, coupled with the fact that Ms Leung had served the notice of motion on them, Ms Leung cannot refuse to serve her submission on them and the summons of 18 January 2019 is without merit. It is also wrong for her not to serve the summonses of 18 January and 25 January 2019 on the putative respondent; and
(c) The summons of 25 January 2019 adds nothing to the notice of motion and it is equally unmeritorious.”

31. Third, the usual practice in relation to costs in an ex parte application for judicial review is to make no order as to costs against an unsuccessful applicant. It appears from Ms Leung’s argument that counsel for the EAC adopted that practice and did not ask for costs. Hence, Ms Leung submitted that Chow J erred in ordering costs against her. Chow J had explained in detail the rationale for ordering costs against Ms Leung in paragraphs 19 to 21 of his judgment. The application was actually heard inter parte. Ms Leung’s grounds for making the application were vexatious. Costs were incurred by the EAC. Chow J considered the usual rule of costs to follow the event appropriate. His order was affirmed by the Court of Appeal in paragraph 18 of its judgment dated 10 December 2018. As I have said, Chow J’s Costs Order is now final and un-appealable.

32. Fourth, Ms Leung argued that the taxation proceedings should be stayed pending appeal to the Court of Final Appeal and the European Court of Human Right. She said that counsel for the EAC had consented to her appeal to the Court of Final Appeal and the European Court of Human Right. Ms Leung has actually exhausted all avenues of appeal in Hong Kong. Her appeal to the Court of Appeal was dismissed on 10 December 2018. Her application for leave to appeal to the Court of Final Appeal was refused by the Court of Appeal on 18 March 2019 and by the Appeal Committee of the Court of Final Appeal on 26 September 2019. Even if counsel had consented to leave to appeal being granted, the ultimate decision whether to grant or to refuse leave is for the Court of Final Appeal. The European Court of Human Right is not part of Hong Kong’s judicial system. In any event, Ms Leung has produced any evidence of any decision by that court. There was absolutely no evidence of any pending appeal, let alone evidence of any chance of a successful appeal against the order refusing her leave to apply for judicial review and against the Costs Order.

33. Fifth, Ms Leung’s argument that the taxation proceedings should be set aside and the taxation hearing should be vacated had been raised in her May Summons and dismissed by Chow J on 16 September 2020. In Ms Leung’s May Summons, she applied to strike out and dismiss the Bill and Notice of Commencement of Taxation which was set down for taxation hearing before Master J Wong on 23 June 2020.

34. On the day before the scheduled hearing before Master J Wong on 23 June 2020, Ms Leung sought leave to file a summons to vacate that hearing. Master J Wong refused her leave. However, on 23 June 2020, Master J Wong adjourned the hearing sine die pending determination of the May Summons by Chow J.

35. On 3 September 2020, Ms Leung issued the September Summons seeking to adjourn the hearing of the May Summons sine die with liberty to restore.

36. On 16 September 2020, the May Summons and September Summons were dismissed by Chow J. Chow J’s Costs Order made on 9 February 2018 had been affirmed by the Court of Appeal. It is now un-appealable. Ms Leung’s May Summons was effectively a collateral attack on the judgment of the Court of Appeal.

37. The issues raised by Ms Leung in her 1^st Notice are related to Master J Wong’s and Master Lai’s dismissal of her 2 summonses filed on 5 October 2020 seeking to set aside the taxation call-over hearing (Paper Disposal) fixed on 22 October 2020, Master Lai’s dismissal of her summons filed on 22 October 2020 seeking to stay the taxation call-over hearing (Paper Disposal) fixed on 27 October 2020, and Master Lai’s making the Order Nisi as to the amount of costs assessed. The issues raised by Ms Leung’s 2^nd Notice are related to her letter of objection to the Order Nisi dated 9 November 2020, Master’s Lai’s dismissing her summons filed on 23 November 2020 seeking to vacate the hearing on 24 November 2020 and Master Lai’s decision to make the Order Nisi absolute. Apart from the Order Nisi and Order Absolute, all the issues and arguments are about setting aside the taxation proceedings and vacating the taxation hearing. All those issues have all been argued and determined by Chow J when dismissing Ms Leung’s May Summons. Ms Leung applied for leave to appeal that order and was refused. She did not further pursue her appeal. Chow J’s order became final. Ms Leung’s 1^st Notice and 2^nd Notice, except in relation to the Order Nisi and Order Absolute, are second attempts to re-litigate on matters which have been determined by the court. They are abuse of proceedings.

38. I now turn to the appeal relating to the Order Nisi and Order Absolute. On 25 September 2020, the Registrar gave notice to the parties that the taxation call-over (Paper Disposal) would be heard at 11 am on 27 October 2020 and that attendance by the parties was not required. Master Lai considered the Bill and made the Order Nisi as to the amount of costs assessed. He then gave direction to the parties, including Ms Leung, to apply in writing for a hearing stating the grounds of objections to the assessment. In compliance with that direction, Ms Leung wrote to the master setting out her complaints.

“(1) Re – The Taxation Proceedings. I hereby further write to object Order Nisi dated 27/10/2020 for the whole Bill.
(a) As I do not even have the whole Bill before me and I do not know how much is the whole Bill.
(b) I object to all item as I never have chance to attend to the hearing to understand what’s been Billed and I have filed my “Notice of list of objection bu (sic) 17/3/2020 and by Summons on 6 April 2020 with chop acknowledged from HC and from DoJ and DoJ Counsel Mr Alan Wong confirmed receipt same.
(c) All other grounds submit should before Court(s).
(d) I strongly object that Master Lai delete in red of the Senior DoJ’s Counsel’s confirmation in the Bill of Costs for the time spent which should remain as (illegible) and the subsequent tel. calls confirmation on time spent which should remain in record. NOT to delete in red by Master Lai.
(e) DoJ’s Counsel confirmed/Consent “No order as to Costs” and confirmed/consent to proceed to CFA and EUCHR in oral hearing in Feb 2018 (with case law to support to preclude Judge’s discretion on Costs.
(f) It’s important that under FAMV 102/2019 and FAMV 125/2019 CFA ordered on “No Order as to Costs” upon Applicant appealed on Costs order HCAL 1016/2017 and CACV 47/2018.
(2) Therefore Master Lai/HC Registrar and Taxation Clerk Larry Ngan should stop intermeddle and leave it to the Appeal Court before High Court Judge To at the hearing of 28/12/2020 and CFA’s and EUCHR’s determination i.e. to stay all taxation proceeding in … (illegible)… Court’s…(illegible) office (illegible) Taxation Clerk’s office.”

39. In her Objection (1)(a), Ms Leung complained that she was not given the Bill and did not know the total amount of the Bill. This assertion is contradicted by page 47 and page 186 of her re-organized bundle in which she wrote that on 13 March 2020 she received the Notice of Intention of Commencement of Taxation Proceedings and a Draft Bill of Costs filed with court on 9 March 2020. She further wrote that on 17 March 2020 she filed her “List of Objection with grounds”. Her filing of list of objections is also confirmed by her Objection (1)(b). Ms Leung’s receipt of the Bill and filing of objections were noted in the judgment of Chow J when dismissing her May Summons and her argument that the taxation proceedings were commenced out of time.

40. In her Objection (1)(b), Ms Leung complained that she was not permitted to attend the hearing on 27 October 2020 in which the Order Nisi was made. Her worries and concerns about not being allowed to attend the taxation hearing are more apparent than real. The procedure was very much standard procedure, particularly in these days of the pandemic for the purpose of reducing unnecessary social contact. There may be hundreds of items in a bill of costs. The procedure is designed for saving time and costs of taxation. It screens out items not in dispute. The amount of costs assessed under the Order Nisi was provisional. The assessment represented a provisional view of the master as to what would be reasonable. It was subject to objection by the parties. If objections were raised, an oral hearing will be fixed. In fact, Master Lai invited the parties to raise objections in writing stating the grounds of objections so as to enable the parties to narrow down or identify the items and issues in dispute. Ms Leung raised her objections in her letter dated 9 November 2020 which I have quoted above. Indeed, a hearing was fixed on 24 November 2020, which Ms Leung sought to vacate on 23 November 2020. There is no substance in this complaint.

41. Objection (1)(c) is not a real ground of objection.

42. Objection (1)(d) is not understood. It appears to be something which had been raised and argued before the Master and adjudicated. It must have been taken into account by Master Lai before he made the Order Nisi absolute. If Ms Leung is dissatisfied with the assessment, she should have sought a review of the Order Absolute pursuant to Order 62 rule 33 within 14 days of the date of the Order Absolute, instead of appealing to set aside the taxation proceedings and to vacate the hearing which have been determined by Chow J when dismissing her May Summons.

43. Objections (1)(e) and (1)(f) are Ms Leung’s objections to the Costs Order having been made. These are not grounds for objection in a taxation hearing. The Costs Order as I have explained was confirmed by the Court of Appeal and is final. It is now cast in stone and is un-appealable. The taxation proceedings are to assess the quantum of the Costs Order and not to review its validity.

44. Objection (2) is based on Ms Leung’s misinterpretation and misunderstanding of the dicta of the Court of Appeal in CAMP 153/2020. In her submissions, she repeatedly quoted the following directions of the Registrar of Civil Appeal made on 25 September 2020:

“1. It is not clear what [Doris Leung] is seeking for in her Summons as the Summons and the documents lodged by her are unfocussed, convoluted and unintelligible.
2.   It may be gathered from the Summons and documents lodged that [Doris Leung] is seeking to set aside a bankruptcy petition presented against Mr. Leung Chung Hang Sixtus in HCB 5651/2020. However, [Doris Leung] is not a party to the bankruptcy proceedings, she has no locus to set aside the petition. In any event, if the set aside application is to be taken out (by the appropriate party), it has to be dealt with in the court below and not in the Court of Appeal.
3.   For the reasons stated above, the Summons is liable to be struck out. If [Doris Leung] does not agree, she may on or before 12 October 2020 lodge her written submissions stating why the Summons should not be struck out…”
   (My emphasis highlighted in bold and italic print)

45. The matter came before the Court of Appeal in CAMP 153/2020 under the following circumstances. On 4 September 2020, Ms Leung (calling herself an Intended Party) filed a summons with the Registry in the Court of Appeal seeking to set aside the bankruptcy petition and proceedings brought by the Legislative Council Commission against Mr Leung in HCB 5651/2020. She did not serve the summons on any party. The Registrar took the view that Ms Leung was not a party to the bankruptcy petition and has no standing to issue the summons. It was under those circumstances that the Registrar of Civil Appeal expressed those views when giving Ms Leung directions to lodge written submissions stating why her summons should not be struck out.

46. Pursuant to those directions, Ms Leung lodged her written submissions. She claimed that she was authorized on behalf of the debtors to liaise with all parties concerned in the Bankruptcy Proceedings and referred to “privileged documents” filed in CACV 115/2020 for the purpose of showing the same. She also submitted that such document was evidence that her equitable interest would be affected by the outcome of the bankruptcy petition. She further submitted that she has standing because she is an “implied” nominee pursuant to the Bankruptcy Ordinance, Cap 6 and the Bankruptcy Rules, Cap 6A. The Court of Appeal rejected all her arguments and dismissed her summons as an abuse of process.

47. Based on the last sentence in the second direction of the Registrar of Civil Appeal (highlighted in bold and italic print), Ms Leung formed the view that she has a good ground to set aside the bankruptcy petition and that it was a direction of the Court of Appeal that I should hear her summons to set aside the bankruptcy petition on 28 December 2020 along with these appeals in HCAL 1016/2017. It is clear from the directions of the Registrar that he was of the opinion that Ms Leung is not a party to the Bankruptcy Proceedings and has no locus to set aside the petition. In the highlighted part of the directions, the Registrar went on to point out the very obvious fact that the setting aside application should have been taken out in the Court of First Instance and that Ms Leung should not have invoked the appellate jurisdiction of the Court of Appeal. The Court of Appeal concurred with that opinion. Nowhere in the judgment did the Court of Appeal direct that the setting aside application should be heard by this court on 28 December 2020 along with the appeals in these proceedings.

48. I have also reviewed the Bankruptcy Papers submitted by Ms Leung. Despite her repeated assertions that they are related to these proceedings, I find they are not. They are related to the bankruptcy petition against Mr Leung in which Ms Leung described herself to be an interested party and claimed to be an “implied” nominee pursuant to the Bankruptcy Ordinance. On the other hand, these proceedings are concerned with the assessment of the amount of costs Ms Leung is liable under the Costs Order made against her in her unsuccessful challenge of the EAC’s decision to hold a by-election to fill the vacancy left by the bankrupt. The issues in the two sets of proceedings are wholly unrelated. I shall not take those Bankruptcy Papers into account in these appeals and reject them for filing purpose.

49. Thus, all in all, the grounds raised in these appeals relating to setting aside of Chow J’s Costs Order, the taxation proceedings and vacation of the taxation hearing have been considered and dismissed by the Court of Appeal in CACV 47/2018, by Chow J in his various judgments in these proceedings, particularly the one delivered on 16 September 2020 dismissing Ms Leung’s May Summons. Insofar as assessments of the Bill by Master Lai is concerned, Ms Leung adopted the wrong procedure. She ought to have sought a review instead of an appeal.

Disposition

50. I have dismissed Ms Leung’s appeal for want of prosecution. Before doing so, I have satisfied myself that Ms Leung did not have a meritorious appeal. Ms Leung turned up late. As a matter of courtesy I accepted her apology. I also thank her renewing her apology in writing on the following day. However, but that does not mean my order shall be set aside as of right. Ms Leung has to show she has a good chance of success in her appeal. She requested that I should read her re-organized bundle and the DVD before deciding whether to allow her application to restore the hearing of the appeal. I have read the re-organized bundle. It was better organized than the bundles she previously lodged. It is more readable, but the materials are basically the same. I have read the DVD. It revealed nothing more than what was set out in Chow J’s judgment. Even if I were to restore the hearing, Ms Leung’s appeal will be dismissed just the same. Accordingly, I refuse her application to set aside the default order and restore the hearing. In so doing, I saved her the costs of another unsuccessful hearing.

	( Anthony To )
	Deputy High Court Judge

The Applicant acting in person being absent

Mr Walter Kwong, Government Counsel of Department of Justice, for the Electoral Affairs Commission

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PS: I appreciate Ms Leung’s perseverance in pursuing these litigations. She must have devoted a lot of time and effort and caused herself much stress. She has brought herself a number of costs orders. By the judgments of the Court of Appeal in CACV 47/2018 and CAMP 153/2020, she ought to accept that she has no standing to pursue all the matters she is pursuing for Mr Leung in her own name and that her ideal of pursuing public interest of great importance is a misconception. It is high time that she should put those matters behind her and free herself from her misconception. There are more valuable objectives to pursue than flogging a dead horse which cannot go anywhere forward, especially when that dead horse is someone else’s.

[1] (2017) 20 HKCFAR 390. The appellant in that case was disqualified from assuming office as a Legislative Council member together with Mr Leung under similar circumstances.

[2] HCAL 1016/2017, 9 February 2018 at §17, [2018] HKCFI 255 at §17;

[3] Leung Kit Hing, Doris v Electoral Affairs Commission, CACV 47/2018, 18 March 2019 at §14-19; [2019] HKCA 330 at §14-19

[4] CACV 47/2018, 18 March 2019 at §10; [2019] HKCA 330 at §10

HCAL 1016/2017

[2020] HKCFI 2811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1016 OF 2017

________________________

BETWEEN
	LEUNG KIT HING, DORIS	Applicant
and
	ELECTORAL AFFAIRS COMMISSION	Putative
		Respondent

________________________

Before: Hon Chow J in Chambers

Date of Decision: 11 November 2020

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D E C I S I O N

___________________

1. The procedural history leading to the summonses now before the court has been set out in the court’s written decision handed down on 16 September 2020, and shall not be repeated here. By that decision, the court made an order (“the Order”) dismissing two summonses referred to as the “May Summons” and “September Summons” taken out by the Applicant with costs to the Putative Respondent.

(1) By the May Summons, the Applicant sought to strike out and dismiss a bill of costs and notice of commencement of taxation issued by the Department of Justice on behalf of Putative Respondent.
(2) By the September Summons, the Applicant applied to adjourn the hearing of the May Summons sine die with liberty to restore.

2. On 29 September 2020, the Applicant issued a summons (“the First Summons”) seeking leave to appeal the Order.

3. On 5 October 2020, the court gave directions for the First Summons to be disposed of on paper.

4. On 14 October 2020, the Applicant issued another summons (“the Second Summons”) seeking to set aside the directions given by the court on 5 October 2020, apparently on the ground that she did not require the court’s leave to appeal the Order.

5. On 15 October 2020, the court informed the Applicant that it was prepared to grant her leave to withdraw the First Summons. The court also made an order that no further summons might be issued by the Applicant relating to the same subject matter without leave of the court.

6. On 16 October 2020, the Applicant wrote to the court stating that the Second Summons was to set aside the court’s directions given on 5 October 2020, and maintained that she would not withdraw the First Summons.

7. On 16 October 2020, the court, in view of the Applicant’s aforesaid stance, gave further directions to the parties for the Second Summons also to be dealt with on paper.

8. On 22 October 2020, the Applicant wrote to the court maintaining that the First Summons did not need to be withdrawn, and stating that she also wished to set aside the directions given by the court on 16 October 2020.

9. On 28 October 2020, the court informed the Applicant that it would not engage in any further correspondence but would determine the First and Second Summonses in accordance with the directions previously given by the court (on 5 October 2020 and 16 October 2020 respectively).

10. On 30 October 2020, the Applicant issued yet another summons (“the Third Summons”) seeking to set aside the court’s directions given on 16 October 2020.

11. This is the court’s decisions on the First, Second and Third Summonses.

12. In relation to the First Summons, the Applicant has not raised any reasonably arguable grounds of appeal against the Order. The Applicant repeats her allegations regarding service of documents by the Department of Justice, which was dealt with in paragraph 26 of the court’s decision dated 16 September 2020. The intended appeal has no reasonable prospect of success. If leave to appeal is required, there is no reason to grant the Applicant leave to appeal. If the Applicant does not need leave to appeal (as she contends), the First Summons would be misconceived. The First Summons is dismissed.

13. In respect of the Second Summons, there is no proper basis on which the Applicant may seek to set aside the directions given by the court on 5 October 2020 relating to the disposition of the First Summons. The Second Summons is dismissed.

14. Finally, in respect of the Third Summons, there is likewise no basis on which the Applicant may seek to set aside the directions given by the court on 16 October 2020 relating to the disposition of the Second Summons. The Third Summons is dismissed.

15. In short, the First, Second and Third Summonses are all dismissed. The Department of Justice has not filed any costs statements pursuant to the court’s directions. Accordingly, the court makes no order as to the costs of the three applications.

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

The Applicant acting in person

Mr Walter Kwong, Government Counsel of Department of Justice, for the Putative Respondent

HCAL 1016/2017

[2020] HKCFI 2377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1016 OF 2017

________________________

BETWEEN
	LEUNG KIT HING, DORIS	Applicant
and
	ELECTORAL AFFAIRS COMMISSION	Putative Respondent

________________________

Before:

Hon Chow J in Chambers (Open to Public)

Date of Hearing:	9 September 2020
Date of Decision:	16 September 2020

___________________

D E C I S I O N

___________________

INTRODUCTION

1. There are two applications before the court:

(1) the Applicant’s application to (i) strike out and dismiss the Electoral Affairs Commission (“the EAC”)’s bill of costs and notice of commencement of taxation, and (ii) set aside an order for costs made by this court on 9 February 2018; and
(2) the Application’s application to adjourn the hearing of the above application sine die with liberty to restore.

BACKGROUND FACTS

2. On 9 February 2018, the court dismissed the Applicant’s applications for (i) leave to apply for judicial review, and (ii) interim relief, and made an order that the Applicant should pay the costs of the EAC incurred in resisting the applications, to be taxed if not agreed (“the Costs Order”).

3. On 15 February 2018, the court dismissed the Applicant’s summons dated 12 February 2018 seeking, inter alia, (i) a variation or discharge of the Costs Order, and (ii) an order that there be no order as to the costs of the proceedings.

4. On 21 February 2018, the Costs Order was sealed.

5. On 23 August 2018, the Applicant’s appeal against the aforesaid orders dated 9 February 2018 and 15 February 2018 was dismissed by the Court of Appeal pursuant an Unless Order made by that court on 17 August 2018 in CACV 47/2018 (“the Unless Order”).

6. On 10 December 2018, the Court of Appeal dismissed the Applicant’s summons dated 4 September 2018 seeking relief from sanction flowing from her failure to comply with the Unless Order, with costs to the EAC (“the CA Judgment”).

7. On 18 March 2019, the Court of Appeal dismissed the Applicant’s application for leave to appeal the CA Judgment to the Court of Final Appeal, with costs to the EAC.

8. On 26 September 2019, the Appeal Committee of the Court of Final Appeal dismissed the Applicant’s renewed application for leave to appeal the CA Judgment in FAMV 102/2019.

9. Commencing on 29 January 2020, the High Court Registry was closed due to public health considerations arising from the outbreak of COVID-19 in Hong Kong.

10. On 3 February 2020, the Department of Justice served on the Applicant a letter enclosing a bill of costs (“the Bill”) and a draft Notice of Commencement of Taxation (“the Draft Notice”), by leaving the same at the Applicant’s address. On the same day, the Department of Justice issued a letter to the Court enclosing the Bill and the Draft Notice.

11. On 9 March 2020, (i) the High Court Registry re-opened, and (ii) the Department of Justice filed the Bill and a Notice of Commencement of Taxation (“the Notice”).

12. On 10 March 2020, the Department of Justice served the Bill and Notice on the Applicant by ordinary post.

13. On 7 May 2020:

(1) The Department of Justice applied to set the Bill down for taxation (“the Application to Set a Bill Down for Taxation”). That application was fixed for a (no attendance required) hearing before Master J Wong on 23 June 2020.
(2) The Applicant issued a summons (“the May Summons”) seeking to (i) strike out and dismiss the Bill and Notice, and (ii) set aside the Costs Order.

14. On 12 May 2020, the court directed that the May Summons should be dealt with at an oral hearing, with 1 hour reserved.

15. On 27 May 2020, the Department of Justice served a copy of the Application to Set a Bill Down for Taxation on the Applicant by ordinary post.

16. On 22 June 2020:

(1) the Applicant filed the May Summons again, and obtained the present hearing date of the May Summons; and
(2) the Applicant sought leave to file a summons to vacate the hearing before Master J Wong scheduled for 23 June 2020 regarding the Application to Set a Bill Down for Taxation. On the same day, Master J Wong refused to grant leave to the Applicant to file the summons.

17. On 23 June 2020, Master J Wong made an order adjourning the proceedings for the taxation of the Bill sine die with liberty to restore after the court’s determination of the May Summons.

18. On the same day (23 June 2020), the Applicant issued another summons seeking to vary or discharge Master J Wong’s directions given on 22 June 2020.

19. On 17 July 2020, Master J Wong dismissed the Applicant’s summons dated 23 June 2020, with costs to the EAC.

20. On 3 September 2020, the Applicant issued a summons (“the September Summons”) seeking to adjourn the hearing of the May Summons sine die with liberty to restore.

DISCUSSION

21. In relation to the Applicant’s objection to the Bill and Notice, the Applicant argues that the proceedings for the taxation of the Bill were commenced out of time. The relevant provisions of the Rules of the High Court, Cap 4A, state as follows:

(1)  Order 62, r 21:
“(1) A party entitled to payment of the costs of any action to be taxed may commence proceedings for the taxation of those costs by filing in the Court -
(a) a notice of commencement of taxation; and
(b) his bill of costs.
(2)  The party shall serve a copy of the notice of commencement of taxation and of the bill of costs on every other party entitled to be heard on taxation within 7 days after the notice and the bill of costs were filed in the Court.”
(2)  Order 62, r 21A:
“(1) Upon compliance with the directions given by a taxing master under rule 13A relating to the steps to be taken or things to be done before the taxation is set down, the party who has commenced taxation proceedings under rule 21 may apply to the taxing master for setting down the taxation.
(2) The party shall, within 7 days after making an application under paragraph (1), serve a copy of the application on every other party entitled to be heard on taxation.”
(3)  order 62, r 22(7):
“A party is not entitled to commence taxation proceedings under rule 21 -
(a) after the expiry of 2 years from the completion date; or
(b) where the Court has extended the period specified in sub-paragraph (a), after the expiry of the period as extended,
whichever is the later.”

22. In the present case:

(1)  The “completion date” for the purpose of Order 62, r 22(7) fell on 9 February 2018, being the date on which the Court of First Instance made the Costs Order (see Order 62, r 22(9)).
(2)  Subject to (4) and (5) below, the deadline for commencement of the taxation proceedings would fall on 8 February 2020.
(3)  However, the High Court Registry was closed between 29 January 2020 and 9 March 2020.
(4)  Section 71(1A) of the Interpretation and General Clauses Ordinance, Cap 1, states as follows -
“(1) In computing time for the purposes of any Ordinance -
(a) a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is a public holiday or a gale warning day or black rainstorm warning day the period shall include the next following day, not being a public holiday or a gale warning day or black rainstorm warning day;
(c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day is a public holiday or a gale warning day or black rainstorm warning day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next following day, not being a public holiday or a gale warning day or black rainstorm warning day;
(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, no public holiday, gale warning day or black rainstorm warning day shall be reckoned in the computation of that time.
(1A) However, if the computation mentioned in subsection (1) is in relation to the doing of an act or the taking of a proceeding at a court office, the following provisions apply to the computation to the exclusion of subsection (1)(b), (c) and (d) -
(a) if the act or proceeding is directed or allowed to be done or taken within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office”.
(5) Further, Order 3, r 4(1) of the Rules of the High Court states as follows -
“Where the time prescribed by these rules, or by any judgment, order or direction, for doing any act at an office of the Court expires on a specified day, and by reason thereof that act cannot be done on that day, the act shall be in time if done on the next day on which that office is open.”
Order 3, r 4(2)(e) goes on to define “specified day”, in relation to an office of the Court, to mean “another day on which the office is closed.”
(6) By virtue of s 71(1A)(a) of the Interpretation and General Clauses Ordinance and/or Order 3, r 4(1) of the Rules of the High Court, the deadline for commencement of the taxation proceedings fell on 9 March 2020.
(7) The Department of Justice filed the Bill and Notice on 9 March 2020.
(8) It follows that the taxation proceedings were commenced in time in the present case.
(9) In any event, even if the taxation proceedings were commenced out of time, I would be prepared to extend the time for the EAC to do so in view of the following matters: (i) the General Adjournment Period was imposed by the court due to public health considerations, (ii) the EAC has not been guilty of any unreasonable delay, (iii) the Department of Justice served copies of the Bill and Draft Notice on the Applicant on 3 February 2020, and (iv) the Applicant has not, so far as I can see, suffered any real prejudice arising from the delay which could not be compensated by an appropriate order as to costs.

23. The Applicant argues that the Costs Order should be set aside because counsel for the EAC had, at the hearing on 2 February 2018, agreed that there should be no order as to the costs of the proceedings. There is no proper basis for the court to re-open the Costs Order, for the following reasons:

(1)  Costs are matters within the court’s discretion. Generally speaking, the court is not bound by any agreement or concession of the parties in relation to the question of costs. In any event, it is clear from counsel’s written submissions on behalf of the EAC dated 31 January 2020 that counsel never agreed that there should be no order as to costs. All that counsel said at the hearing was that the usual order in an unsuccessful application for leave to apply for judicial review was no order as to costs. The court was aware of this principle (see paragraph 19 of the court’s decision dated 9 February 2018).
(2)  The Costs Order made by the court on 9 February 2018 was a final order, and has been sealed. While the Applicant may seek to challenge the Costs Order by way of an appeal (which she did unsuccessfully), she cannot apply to set aside the Costs Order in this court.
(3)  The Applicant has previously applied, unsuccessfully, to set aside the Costs Order (see paragraph 3 above). The Applicant’s repeated application to set aside the Costs Order constitutes an abuse of the court’s process.

24. In all, the Applicant’s application under the May Summons has no merits.

25. The Applicant submits that the present hearing should be adjourned because there are outstanding proceedings or intended proceedings before the Court of Appeal and/or the European Court of Human Rights. I do not see that those proceedings or intended proceedings are relevant to the Applicant’s application under the May Summons. In any event, in view of the absence of merits of the May Summons, there would be no reason to adjourn the hearing of the application.

26. In passing, I should mention that the Applicant has made some complaint about the service of Mr Wong’s skeleton submissions. It would appear, however, from the 2^nd Affidavit of Yip Hiu Fung filed on 3 September 2020 that Mr Wong’s skeleton submissions, his list of authorities and the Statement of Costs for Summary Assessment were all served on the Applicant by leaving at her address on 1 September 2020. Further, Mr Wong has informed the court that the Applicant refused to accept another set of the documents on 3 and 7 September 2020 when she attended the office of the Department of Justice. In the circumstances, I do not consider that there is any substance in the Applicant’s complaint regarding the service of Mr Wong’s skeleton submissions.

DISPOSITION

27. The May and September Summonses are dismissed, with costs to the EAC. The EAC’s costs are summarily assessed at HK$13,708.00.

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

The Applicant acting in person and present

Mr Alan Wong, Government Counsel of Department of Justice, for the Putative Respondent

HCAL 1016/2017

[2018] HKCFI 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1016 OF 2017

____________

BETWEEN
	LEUNG KIT HING, DORIS	Applicant
and
	ELECTORAL AFFAIRS COMMISSION	Putative Respondent

____________

Before: Hon Chow J in Court

Date of Hearing: 2 February 2018

Date of Decision: 9 February 2018

___________________

D E C I S I O N

___________________

INTRODUCTION

1. On 6 December 2017, the Applicant made an application for leave to apply for judicial review of the decision (“the Decision”) of the Electoral Affairs Commission (“the EAC”) to arrange for a Legislative Council by-election (“the By-Election”) to be held on 11 March 2018 to fill, inter alia, the vacant seats arising from the disqualification of Mr Leung Chung Hang (“Leung”) and Ms Yau Wai Ching (“Yau”) from assuming office as members of the Legislative Council.

2. On 22 January 2018, the Applicant made a further application for an interlocutory injunction to restrain the EAC from holding the By‑Election.

Basic facts

3. The background facts leading to the disqualification of Leung and Yau from assuming office as Legislative Council members are well known and do not have to be repeated here. On 15 November 2016, Au J handed down his judgment in HCAL 185/2016 and HCMP 2819/2016 declaring, inter alia, that the offices previously occupied by Leung and Yau as Legislative Council members had become vacant. On 30 November 2016, the Court of Appeal dismissed Leung and Yau’s appeals against the judgment of Au J ([2017] 1 HKLRD 460).

4. On 5 December 2016, the Clerk to the Legislative Council, by notices published in the Gazette, declared that the respective offices previously held by Leung and Yau as Legislative Council members had become vacant.

5. On 25 August 2017, the Appeal Committee of the Court of Final Appeal dismissed Leung and Yau’s applications for leave to appeal against the judgment of the Court of Appeal ((2017) 20 HKCFAR 390)) (“the CFA Determination”).

6. On 14 September 2017, the EAC announced that the By‑Election was planned to be held on 11 March 2018.

7. On 1 December 2017, the Chief Electoral Officer published a notice in the Gazette announcing that the By-Election would be held on 11 March 2018, and the nomination period for the By-Election would run from 16 to 29 January 2018.

8. As earlier mentioned, the Applicant commenced the present application for leave to apply for judicial review on 6 December 2017. As explained by the Applicant at the hearing on 2 February 2018, her ground of the application is that, under Section 36(1)(e)(ii) of the Legislative Council Ordinance, Cap 542 (“the LCO”), the EAC should not arrange for the holding of the By-Election prior to the termination of the following proceedings:

(1) an application made by the Applicant to the Court of Final Appeal on 28 August 2017 to, inter alia, set aside the CFA Determination on the ground of alleged irregularity in the hearing on 25 August 2017; and
(2) her application to the European Court of Human Rights complaining about the disqualification of Leung and Yau from assuming office as Legislative Council members and/or the aforesaid legal proceedings in Hong Kong.

In what follows, unless otherwise expressly indicated, references to sections shall be references to the Legislative Council Ordinance.

DISCUSSION

9. The following legislative provisions are relevant for the present purpose. Section 35(1) states as follows:-

“The Clerk to the Legislative Council must, by notice published in the Gazette, declare the existence of a vacancy in the membership of that Council within 21 days after becoming aware of the vacancy.”

10. Section 36(1), so far as relevant, states as follows:-

“The Electoral Affairs Commission must, in accordance with regulations in force under the Electoral Affairs Commission Ordinance (Cap. 541), arrange for a by-election to be held in the following circumstances and not otherwise -
(a) on the making of a declaration as to the existence of a vacancy in the membership of the Legislative Council under section 35;
(d) subject to sections 70A and 72(1A), on the Court’s making a determination under section 67 that a person whose election is questioned was not duly elected and that no other person was duly elected instead;
(e) if an appeal against a determination referred to in paragraph (d) is lodged to the Court of Final Appeal –
(i) on the Court of Final Appeal’s making a determination under section 70B that a person whose election is questioned was not duly elected and that no other person was duly elected instead; or
(ii) on the termination of the appeal proceedings in other circumstances.”

11. Section 67 relates to determinations made by the Court of First Instance in election petitions, and Section 70B relates to appeals to the Court of Final Appeal against determinations made by the Court of First Instance under Section 67.

12. On 5 December 2016, the Clerk to the Legislative Council, in accordance with Section 35(1), published notices in the Gazette declaring that the respective offices occupied by Leung and Yau as Legislative Council members had become vacant. It follows that under Section 36(1)(a), the EAC is required to arrange for the By-Election to be held.

13. The Applicant argues, however, that under Section 36(1)(e)(ii), the EAC should not arrange for the holding of the By-Election until “the termination of the appeal proceedings in other circumstances” which, according to the Applicant, includes the outstanding proceedings mentioned in paragraph 8 above.

14. In my view, the Applicant’s argument is based on a misunderstanding or misinterpretation of Section 36(1)(e)(ii). The “appeal proceedings” referred to there is a reference to appeal proceedings in the Court of Final Appeal against determinations made by the Court of First Instance in election petitions under Section 67. The proceedings commenced by the Applicant mentioned in paragraph 8 above plainly do not come within the words “appeal proceedings” in Section 36(1)(e)(ii). It follows that the EAC is correct in law to arrange for the holding of the By-Election.

15. At the hearing on 2 February 2018, the Applicant sought to argue that Leung and Yau should not have been disqualified, and that their counsel failed to properly present their respective cases to the Court of Final Appeal on 25 August 2017. Quite apart from the lack of substance in those arguments, it must be said that, as far as this court is concerned, the CFA Determination is final and conclusive.

16. In short, the application for leave to apply for judicial review is not reasonable arguable.

17. I also consider it to be plain that the Applicant lacks standing in this matter. Leung and Yau, being the persons directly affected, were represented by highly experienced counsel and they fully participated in the relevant legal proceedings relating to their disqualification at all levels. That being the position, I am unable to see how the Applicant can be said to have standing to mount another legal challenge on the same cause or matter.

disposition

18. The Applicant’s application for leave to apply for judicial review, and her application for interim relief, are dismissed.

19. On the question of costs, I bear in mind the Applicant’s requests that her applications should be disposed of on paper. I also bear in mind that applications for leave to apply for judicial review are normally disposed of on an ex parte basis, and that even where the court directs an oral hearing and permits the putative respondent to attend the hearing to resist the leave application, the general rule is still that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are special or unusual circumstances which justify such an award (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, paragraphs 11 to 14 and 17).

20. This having been said, it must be recognized that underlying the general position that applications for leave to apply for judicial review are disposed of on an ex parte basis is the assumption that the applications are properly formulated and presented, with the proposed grounds of judicial review being clearly, logically and succinctly set out in the Form 86 and properly supported by relevant evidence in the affidavit required to be filed under Order 53, rule 3(2) of the Rules of the High Court. Increasingly, however, the court is faced with applications for leave to apply for judicial review which are not properly formulated or presented, and where the proposed grounds of judicial review are obscure or unintelligible. The result is that the court cannot properly deal with the leave applications on an ex parte basis, but has to direct an oral hearing to determine the matter with the assistance of evidence and/or submissions from the putative respondent in order to do justice to both parties. The present is such a case.

21. Ultimately, the principle remains that costs lie in the discretion of the court which must retain the flexibility to make or refuse to make an award of costs as the particular circumstances of the case and justice warrant. In determining the question of costs in this case, I also take into account the following matters:-

(1) the fact that the Applicant applies for interim relief, which normally it would not be just or convenient to grant against a public authority without it being given an opportunity to be heard;
(2) the obvious lack of merits of the applications; and
(3) the lack of standing on the part of the Applicant in this matter.

22. In all the circumstances, I consider that the Applicant should pay the EAC’s costs of resisting the two applications, to be taxed if not agreed, and I so order.

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

The Applicant acting in person and present

Mr Jimmy Ma, instructed by Department of Justice, for the Putative Respondent

LEUNG KIT HING, DORIS v. ELECTORAL AFFAIRS COMMISSION

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