Case Detail

CAMP 284/2023, [2024] HKCA 131

On An Intended Appeal From [2022] HKCFI 3712 &

[2023] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 284 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2259 OF 2018)

________________________

BETWEEN

	LAM AR FU PETER	Applicant
	and
	BUILDING AUTHORITY	Putative Respondent

________________________

Before:

Hon Au and Chow JJA in Court

Dates of Written Submissions:	29 December 2023 & 11 and 18 January 2024
Date of Judgment:	6 February 2024

________________________

J U D G M E N T

________________________

Hon Chow JA (giving the Judgment of the Court):

1. On 5 December 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s application for leave to appeal or, alternatively, an extension of time to appeal, against the decision of Wilson Chan J dismissing the Applicant’s application for a review of a taxing master’s decision on costs under Order 62, rule 35 of the Rules of the High Court , Cap 4A.

2. The basic facts of this case and the Court’s reasons for dismissing the Applicant’s application have been set out in the CA Judgment and will not be repeated here. Unless the context indicates otherwise, the expressions and abbreviations as defined in the CA Judgment will continue to be used in this judgment.

3. By Notice of Motion dated 29 December 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. Attached to the Notice of Motion is a document titled “Application for Leave to Appeal to the Court of Final Appeal”. Insofar as one can make out from that document, the Applicant appears to be seeking leave to appeal on the following grounds:

(1)  the “court orders” are “impracticable” and cannot be enforced;
(2)  infringement of the fundamental constitutional rights of Hong Kong people;
(3)  the Taxing Master is not required to follow the costs order made by the Court of First Instance; and
(4)  the Respondent’s conduct in revoking the “2^nd DO” should be reviewed during the course of taxation and/or the appeal proceedings.

4. In accordance with the usual practice under paragraph 3 of Practice Direction 2.1, the Notice of Motion is determined on paper.

5. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), 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 of Final Appeal for decision.

6. The matters raised by the Applicant in his document “Application for Leave to Appeal to the Court of Final Appeal” are either new points not previously raised, or repetitions of points which have been rejected by the Court of Appeal. They are also not reasonably arguable. In particular, we fail to see how it can be reasonably be argued that:

(1)  the Costs Orders made by the Court of First Instance in HCAL 2259/2018, or the order made by Master Hui upon taxation of the Costs Order, are impracticable or unenforceable;
(2)  the Costs Orders, or the taxation of those orders, have resulted in any infringement of any fundamental or constitutional rights of the Applicant;
(3)  the Taxing Master is not bound to follow, or give effect to, the Costs Order made by the Court of First Instance; or
(4)  the Respondent’s subsequent conduct, which the Applicant contends amounted to a decision to “revoke”, “withdraw” or “abandon” the building order dated 10 December 2010 or the previous proceedings, has been overlooked or neglected by the courts, or can affect the validity or enforceability of the Costs Order.

7. The Applicant has not raised any viable ground of appeal against the CA Judgment. His intended appeal based on the matters raised in the Notice of Motion and the accompanying “Application for Leave to Appeal to the Court of Final Appeal” has no merits and no reasonable prospect of success. We are not satisfied that the Applicant’s intended appeal raises any question of great general or public importance which ought to be submitted to the Court of Final Appeal for decision. There is also no basis to grant leave to appeal based on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

8. Lastly, we note that in a document titled “Application for Leave to Appeal to the CFA ‘Submission of New Discovery’” dated 18 January 2024 and attached to the Applicant’s “Leave to accept ‘Submission of New Discovery’” of the same date, the Applicant applies for an order that Chow JA should recuse himself from dealing with the present application on the ground that the Costs Orders in HCAL 2259/2018 were made by him as a judge of the Court of First Instance. We can see no valid basis for this application, in view of the fact that (i) the subject matter of the Applicant’s summons dated 14 August 2023 in CAMP 284/2023 was the order of Wilson Chan J dismissing the Applicant’s application for a review of a master’s decision on taxation of the Costs Orders, not the Costs Orders themselves, (ii) as mentioned in §5 of the CA Judgment, the Costs Order were not disturbed by the Court of Appeal in the Applicant’s previous appeals ([2019] HKCA 1019, [2021] HKCA 756 and [2021] HKCA 1596), and (iii) the Costs Order were not open for review by either the Taxing Master or Wilson Chan J. In the circumstances, when the Court of Appeal determined the Applicant’s summons dated 14 August 2023 in CAMP 284/2023, it was not called upon to decide on the correctness of the Costs Order. The same considerations apply to the Applicant’s current application for leave to appeal the CA Judgment to the Court of Final Appeal.

9. For the above reasons, the Notice of Motion is dismissed with costs to the Putative Interested Party. The costs claimed by the Putative Interested Party in the costs statement dated 11 January 2024, in the amount of HK$9,506, are reasonable, and are allowed in full upon summary assessment.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The Applicant, acting in person

Mr Lee King Hay, Ryan, Government Counsel of the Department of Justice, for the Putative Respondent

CAMP 284/2023, [2023] HKCA 1315

On An Intended Appeal From [2022] HKCFI 3712 &

[2023] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 284 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2259 OF 2018)

________________________

BETWEEN
	LAM AR FU PETER	Applicant
	and
	BUILDING AUTHORITY	Putative
		Respondent

________________________

Before:

Hon Au and Chow JJA in Court

Dates of Written Submissions:	14 August 2023 and 29 August 2023
Date of Judgment:	5 December 2023

___________________________

J U D G M E N T

___________________________

Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1. The is the Applicant’s application for leave to appeal or, alternatively, for an extension of time to appeal, against the decision of Wilson Chan J (“the Judge”) dismissing the Applicant’s application for a review of a taxing master’s decision on costs under Order 62, rule 35 of the Rules of the High Court , Cap 4A (“RHC”).

2. Having considered the papers and the submissions before us, we consider that it is appropriate to deal with the present application on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) and/or rule 14A(1) of the RHC.

BASIC FACTS

3. In HCAL 2259/2018, the Applicant applied for leave to apply for judicial review of the decisions of the Appeal Tribunal (Buildings) (“the Tribunal”) dismissing his appeal in Case No 1184-2010 and ordering him to pay the Building Authority (“the BA”)’s costs of the appeal. On 30 January 2019, the Court of First Instance (Chow J) dismissed the Applicant’s application for leave to apply for judicial review.

4. Arising out of the proceedings in HCAL 2259/2018, the Court of First Instance made 2 orders for costs in favour of the BA against the Applicant dated 30 January 2019 and 9 April 2019 respectively (“the Costs Orders”).

5. The Applicant subsequently appealed or sought leave to appeal, unsuccessfully, against the Court of First Instance’s decisions or orders referred to in §§3 and 4 above[1]. The Costs Orders were not disturbed by the Court of Appeal.

6. On 10 December 2021, Master Hui taxed the BA’s costs under the Costs Orders. On 21 April 2022, Master Hui rejected the Applicant’s application for a review of his decision under Order 62, rule 34 of the RHC.

7. The Applicant applied for a further review of Master Hui’s decision on review to a judge pursuant to Order 62, rule 35 of the RHC. On 19 December 2022, the Judge gave his decision (“the Decision”) rejecting the Applicant’s application for review.

8. On 1 August 2023, the Judge rejected the Applicant’s application for leave to appeal against the Decision. The Judge held that (i) the Decision was final in nature, and thus the Applicant was entitled to appeal against the Decision to the Court of Appeal as of right and did not require leave to appeal, and (ii) in any event, the Applicant’s intended appeal had no reasonable prospect of success and there was no other reason in the interests of justice why the appeal should be heard, and thus leave to appeal would be refused had the Applicant required leave to appeal.

THE PRESENT APPLICATION

9. By a summons filed in the Court of Appeal dated 14 August 2023 (“the Summons”), the Applicant renewed his application for leave to appeal against the Decision. In the Summons, the Applicant also asked for his application to be treated as an application for an extension of time to appeal if the Judge was correct in holding that he was entitled to appeal as of right.

DISCUSSION

10. The Judge’s view that the Decision was final (not interlocutory) and thus leave to appeal was not required was based on the decision of Deputy High Court Judge Saunders in Lam and Lai Solicitors v Ho Chun Yan Albert, HCMP 555/2015 (27 July 2017), at §§8-9 and 11-12. Although the appeal against the substantive decision of Deputy High Court Judge Saunders was subsequently allowed by the Court of Appeal in CACV 172/2017 (28 February 2018), there was no discussion on the issue of whether leave to appeal was required in the judgment of the Court of Appeal.

11. In the present application, the BA maintains that leave to appeal against the Decision is not required. As earlier mentioned, the Applicant is prepared to treat the present application as an application for an extension of time to appeal if the Judge was correct in holding that he was entitled to appeal as of right. The BA is content for this course of action to be followed. In the circumstances, we shall proceed on the basis that leave to appeal against the Decision is not required, and treat the present application as an application for an extension of time to appeal.

12. The crux of the Applicant’s argument in his intended appeal lies in his contention that the building order issued by the BA dated 10 December 2010, being the subject matter of his appeal to the Tribunal in Case No 1184-2010, has been “abandoned” by the BA by reason of a subsequent building order issued on 9 June 2021 which superseded the earlier building order of 10 December 2010. The Applicant contends that the BA’s conduct in issuing the new building order amounts to a “withdrawal” of the previous proceedings, and hence the Costs Orders have become invalid, and the court has lost its power to deal with those proceedings, including taxation of the Costs Orders.

13. The Applicant’s argument is misconceived. The Costs Orders are orders of the Court of First Instance, and are valid and binding on the Applicant unless and until they are set aside by a higher court. The Costs Order have never been so set aside. Nothing that is done by the BA can lawfully affect the validity of the Costs Order. They remain legally valid, and are binding on the Applicant.

14. At §6 of his written submissions dated 14 August 2023, the Applicant makes a faint complaint of judicial copying against the Judge. However, the Applicant has failed to identify any part or parts of the Decision which he alleges was/were copied from the BA’s submissions. The Applicant has failed to make good his complaint of judicial copying. In any event, the Decision was not based on any consideration of oral evidence given by any witness. The issues in contention are issues of law, and we are in as good a position as the Judge in determining them (see Lo Kai Shui v HSBC International Trustee Ltd[2023] HKCA 983, at §16). We have considered the Applicant’s arguments independently and do not adopt any deferential standard of review in the present case, and come to the conclusion that the Applicant’s intended appeal is not reasonably arguable.

15. In our view, the Applicant’s intended appeal has no merit and no reasonable prospect of success. That being the position, it would be futile to extend time for the Applicant to appeal against the Decision.

16. In passing, we would add that it does not matter whether the present application should be treated as an application for an extension of time to appeal or an application for leave to appeal. The outcome would be the same. If the present application should be treated as an application for leave to appeal, we consider it to be clear that the Applicant’s intended appeal has no reasonable prospect of success, and we can see no other reason in the interests of justice why the appeal should be heard. Thus, leave to appeal should not be granted.

DISPOSITION

17. The Summons is dismissed with costs to the Putative Respondent. We summarily assess the Putative Respondent’s costs. We have considered the Putative Respondent’s costs statement dated 29 August 2023 seeking costs in the total amount of HK$15,529. The items and the amount of costs claimed by the Putative Respondent are reasonable, and are allowed in full.

18. This judgment is written in English because the Applicant’s Summons and Affidavit in support dated 14 August 2023 are both written in English. If required, the Applicant may make an arrangement with the Clerk to this Court for the judgment to be orally interpreted to him in Chinese in the Court’s premises at a mutually convenient time.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

Mr Lee King Hay, Ryan, Government Counsel of the Department of Justice, for the Putative Respondent

[1] See [2019] HKCA 1019, [2021] HKCA 756 and [2021] HKCA 1596.

LAM AR FU PETER v. BUILDING AUTHORITY

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