THE LEGISLATIVE COUNCIL COMMISSION v. SIXTUS LEUNG CHUNG HANG AND ANOTHER

CACV 333/2018

[2020] HKCA 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2018

(ON APPEAL FROM DCCJ 4497/2017)

____________________

____________________

___________________

JUDGMENT

___________________

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

Introduction

1.  We handed down our first judgment on 17 September 2018.  In the judgment, we dismissed the applicant’s summons dated 9 August 2018 and struck out her appeal against the decisions of the Registrar Ho and Master Yip, both of the District Court in DCCJ 4497/2017 (“the Main Action”) on 13 November 2017, 12 and 26 June 2018, respectively (“the DC Decisions”) on the ground of abuse of process (“the First Judgment”).

2.  On 10 December 2018, we handed down our further judgment dismissing the applicant’s summons dated 28 September 2018 for leave to re-open and re-visit the First Judgment on the ground that her application was totally devoid of merits (“the Second Judgment”).

3.  By a notice of motion of 20 December 2019, the applicant sought leave to appeal out of time to the Court of Final Appeal against the First Judgment and the Second Judgment.  The intended grounds can be summarized as follows:

(1)  She claimed to be the representative of the voters of the defendants in respect of claims under Articles 10 and 21 of the Hong Kong Bill of Rights Ordinance, Cap 383.

(2)  She claimed that this Court acted on mistaken belief (without specifying what such belief was) in the First Judgment and the Second Judgment as this Court does not have the “DC file”.  The Second Judgment was handed down prematurely given that the applicant issued a summons to appeal against the DC Decisions before a District Court Judge on 16 November 2018 (“the DC Application”), which was dismissed on 10 December 2018.

(3)  There were criminal liabilities on the part of the guards of the Legislative Council (“Legco”) when removing the defendants from the Legco chamber as directed by the president of Legco.

(4)  The applicant has a privileged document and equitable interest in the assets held by the defendants and these assets are under the claim by the plaintiff in the Main Action. 

(5)  The reason for her application for leave to appeal to this Court was to gain time under Order 59 rule 2B of the Rules of the High Court, Cap 4A (“the Rules”).

(6)  The plaintiff’s solicitors had evaded service of court documents on three occasions. 

(7)  EUCtHR has the jurisdiction of the case and certain remedies can be sought from EUCtHR.

(8)  The president of Legco and the plaintiff seriously prejudiced the defendants as the Government had given a “green light” for the president and the plaintiff to set-off the claimed sum and the same arrangement was already made to other four disqualified Legco members.

(9)  the defendants shall be entitled to protection under the Employees’ Compensation Ordinance, Cap 282 and the Employment Ordinance, Cap 57.

(10)  Registrar Ho erred in giving his directions in the applicant’s previous applications in the Main Action.

(11)  Master Yip failed to consider the applicant’s cause of action as the representative of the voters of the defendants.

4.  On 24 December 2019, the Registrar of Civil Appeals (“RCA”) gave directions to the applicant on the conduct of the motion in accordance with Practice Direction 2.1.  The applicant issued two summonses on 2 January 2020 and 17 January 2020, respectively, seeking for time extension to lodge her written submissions.  RCA extended the time for the applicant to lodge her written submissions to 21 January 2020. 

5.  The applicant lodged her written submission on 21 January 2020.  It contains arguments similar to those set out in the notice of motion and one additional ground that there was an implied consent given by the plaintiff throughout the applicant’s applications in the Main Action.

6.  Pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), leave to appeal to the Court of Final Appeal in any civil cause or matter may be granted if :

“ the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision.”

7.  We consider that it is appropriate to determine the notice of motion on the papers without any oral hearing in accordance with paragraph 3 of Practice Direction 2.1.

Discussion

Substantial delay

8.  Pursuant to section 24(2) of the Ordinance, an appellant has 28 days from the date of the judgment to seek leave to appeal to the Court of Final Appeal against it.  In the present case, the time for the applicant to seek leave to appeal against the First Judgment and the Second Judgment expired on 15 October 2018 and 7 January 2019, respectively.  The applicant was late by over 11 and 14 months.  The applicant did not provide any explanation for such delay.

9.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before this Court will exercise its discretion to grant an extension of time under section 24(5) of the Ordinance.  See: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles MedicalGroup CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another CACV 191/2013, 29 January 2015.  

Abuse of process

10.  Section 24(2) of the Ordinance requires an applicant to give the opposite party 7 days’ notice of his intended application and such notice may be given at any time during the period of 28 days from the date of the judgment to be appealed from.

11.  The applicant has not served any notice, the notice of motion and any of the documents lodged in this appeal on the parties to the Main Action.  This is not an ex parte application and contrary to what she said in her written submission, it is not acceptable for her to serve the parties only subsequently.  

12.  On this ground alone, the application should be struck out as an abuse of process.

No question of great general or public importance

13.  We are of the view that the matters put forward by the applicant in this application do not involve any question of great general or public importance.

Lack of prospect of success

14.  As it should be plain from the First Judgment and the Second Judgment, we struck out the applicant’s appeal on the ground that it was an abuse of process as this Court does not have jurisdiction to entertain such appeal or leave application (as explained at [9] to [14] of the First Judgment). The matters set out in the notice of motion and her written submissions are irrelevant to this analysis.

15.  Her argument that there was mistaken belief by this Court in the First Judgment and the Second Judgment as this Court does not have the DC file is not understood.  The First Judgment dated 17 September 2018 addressed an appeal against the decisions of the Registrar and a Master of the District Court of 13 November 2017 and 12 and 26 June 2018 in DCCJ 4497/2017.

16.  We refused to re-open the appeal for the reasons set out in the Second Judgment.  This was essentially an exercise of discretion.  The applicant had not shown good reason for such exceptional course to be permitted.  

17.  As to the DC Application, the applicant made no reference to it in her written submission in support of the application to re-open the appeal.  It was in any event an application made after the First Judgment, and bears no relevance to the First Judgment. Nor can it assist the applicant in her application to re-open the appeal.

18.  In general, the applicant’s grounds of appeal and submissions do not impinge upon our reasons for the First Judgment and the Second Judgment, and cannot constitute valid grounds for granting leave to appeal.  There is also no basis to grant leave on the “or otherwise” limb.

Disposition

19.  As the intended appeal has no merit, it would be futile to grant an extension of time to appeal to the Court of Final Appeal.

20.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal.  The notice of motion filed on 20 December 2019 is dismissed accordingly.

CACV 333/2018

[2018] HKCA 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2018

(ON APPEAL FROM DCCJ 4497/2017)

___________________

___________________

___________________

JUDGMENT

___________________

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

1.  On 17 September 2018, we handed down a judgment ([2018] HKCA 600; “the Judgment”) dismissing the applicant’s summons dated 9 August 2018 and striking out the appeal on the ground of abuse of process.

2.  On 28 September 2018, the applicant took out a summons (“the Summons”) for leave to re-open and re-visit the Judgment on the ground that the relevant order had not been sealed. She also applied for leave “to adduce evidence and to intervene as a party under Order 5 rule 6”.

3.  A document entitled “Statements in support of grounds” was attached to the Summons.  In that document, the applicant contends that:

(a) Leave to appeal should be granted in the present case in order to “secure the just expeditious and economical disposal of the appeal”. With reference to Order 58 rule 2(2)(a) of the Rules of the District Court (Cap 336H) and Order 59 rule 2B(4) of the Rules of the High Court (Cap 4A), the applicant argued that leave to appeal should be given to her by this Court; and

(b) The directions given by the Registrar of Civil Appeals on 25 July 2018 (“RCA’s Directions”) were wrong and should be set aside.

4.  The applicant reiterated her contentions in her written submissions lodged with the court on 12 October 2018.

5.  The Court is not functus before the sealing of its order and it retains a discretion to re-open the case even after a judgement has been handed down.  There must be good reason in the interest of justice for the case to be so re-opened before the Court will exercise such exceptional power.  Finality of the process is an important consideration and it cannot be right to allow another round of post-judgment submissions simply because a party put in a summons for re-opening the case.  Thus, it has been said that strong reasons are required and the power would only be exercised in exceptional cases: see Re Kennedy [2007] 5 HKC 75 at [4]. 

6.  Having read the submissions of the applicant, we are not persuaded that this is a case calling for the re-opening of the appeal.  We are not satisfied that she has any reasonable ground to challenge the conclusions in our main judgment.  

7.  In our judgment, the Summons is totally devoid of merits.  We dismiss it accordingly.

CACV 333/2018

[2018] HKCA 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2018

(ON APPEAL FROM DCCJ NO 4497/2017)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  By a notice of appeal of 23 July 2018, the applicant sought leave to appeal against certain decisions of the Registrar of District Court in DCCJ 4497 of 2017 of 13 November 2017, 12 and 26 June 2018 and asked this Court to set aside those decisions.

2.  The applicant is not a party to DCCJ 4497 of 2017.  She, however, wanted to adduce evidence “in support of the defendants”.  On 13 November 2017, the Registrar refused to entertain her ex parte application of 10 November 2017.  On 16 May and 11 June 2018, she applied by summonses which the Master adjourned on 12 June 2018 to be dealt with on 26 June 2018.  On 26 June 2018, the Master dismissed both summonses. 

3.  Insofar as the applicant intended to seek leave to appeal, she should not apply by a notice of appeal.  Instead she should have applied by summons.  A notice of appeal filed before leave is obtained is an abuse of process because such appeal is incompetent and liable to be struck out.

4.  Further, for reasons given below, the application for leave is also incompetent.

5.  The Registrar of Civil Appeals [“RCA”] observed on 25 July 2018:

“ 1. The Notice of Appeal seeks to challenge 3 interlocutory orders/directions of the Registrar and a Master of the District Court.

2. Pursuant to Order 58 rules 1 and 2 of the Rules of the District Court (Cap.336H), appeals from the Registrar/Master of the District Court shall lie to a Judge of the District Court in chambers rather than to the Court of Appeal.

3. The Notice of Appeal is therefore liable to be struck out.

4.     If the Applicant objects to her Notice of Appeal being struck out, she may lodge written submissions (limited to 2 pages) on or before 10 August 2018 in support of her objection.  The Notice of Appeal will be referred to the Court of Appeal for consideration upon the Applicant’s lodgment of submissions or 13 August 2018, whichever is earlier.”

6.  Instead of lodging submissions as directed, the applicant issued a summons on 9 August 2018 seeking to vary and set aside the directions of the RCA and asking for leave to appeal under Order 58 Rule 2(a)of the Rules of the High Court.  She also lodged a statement in support of the summons on the same date and a set of supplementary statement on 13 August 2018, which we have read and treated as her submissions.

7.  It does not appear that she has served any of the documents lodged in this appeal on the parties in DCCJ 4497 of 2017 even though the summonses at the court below were heard inter partes.  In these circumstances, the non-service of these documents is by itself an abuse of the process.

8.  By reason of the obvious vexatious nature of her appeal and application, we do not deem it necessary to direct her to serve the notice of appeal and the summons of 9 August 2018. Instead, we will proceed to dispose of the same as an abuse of process as discussed below.  A copy of this judgment will be given to the parties in DCCJ 4497 of 2017 for their information.

9.  Since the decisions in the lower court are decisions from the Registrar and a Master of the District Court, the applicable Order 58 should be the Order 58 in the Rules of the District Court.  Under that Order 58, the position is as follows.

10.  Rule 2(2) provides for appeal from certain specified kinds of judgment or decision from a Master of the District Court to the Court of Appeal, subject to leave being obtained in accordance with the provisions of Order 58.

11.  Order 58 Rule 2(4) further stipulates that leave to appeal should be obtained from the Master before the appeal can be brought.  Rule 2(4A) further stipulates that if such leave is refused, a further application can then be made to the Court of Appeal for leave.

12.  The applicant had not applied for leave from the Registrar or the Master of the District Court.  Hence, no further application can be made and Rule 2(4A) is not engaged.

13.  In any event, the decisions in question do not come within any of the provision in Order 58 Rule 2(2) which reads:

“ (2) Subject to the provisions of this rule, an appeal lies to the Court of Appeal from—

(a) a judgment, order or decision of a master on any cause, matter, question or issue tried or assessed before him under Order 14, rule 6(2), Order 36, rule 1, Order 37 or Order 84A, rule 3; (L.N. 100 of 2014)

(b) a judgment, order or decision (other than an interlocutory judgment, order or decision) of a master given or made under Order 49B; and (L.N. 153 of 2008; L.N. 100 of 2014)

(c)   a judgment of order of a master given or made under Order 17, rule 11(2). (L.N. 100 of 2014)”

14.  As such, they are not decisions which is appealable to the Court of Appeal.

15.  The further references to section 63(1B) of the District Court Ordinance and Order 17 Rule 11(2) in the summons of 9 August 2018 cannot take the applicant case further.  Her reliance on section 63(1B) is subject to the same flaws as discussed above in respect of Order 58 Rule 2.  We cannot discern any relevance of Order 17 in the present case as DCCJ 4497 of 2017 is not a case within the scope of Order 17.    

16.  For these reasons, we dismiss the summons of 9 August 2018 and strike out the appeal as an abuse of process.