Cheung Moon Hoi v. Administrative Appeals Board

HCAL 118/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 118 OF 2014

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JUDGMENT
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1.The Applicant is applying for leave to issue judicial review against the order of the Administrative Appeals Board (“AAB”) that the costs of an appeal be paid by the Applicant to the Privacy Commissioner for Personal Data (“Commissioner”) on the grounds that the Applicant has conducted his case in a frivolous or vexatious manner.

2.The Applicant has requested an oral hearing.

Background

3.The Applicant was a customer of Taifook Futures Ltd.  On 4 October 2008,the Applicant made a data access request (“DAR”) to Taifook for copies of 3 cheques deposited into his account with Taifook.

4.On 28 November 2008,Taifook informed the Applicant that they did not hold any copy of the 3 cheques, and in any case the cheque copies did not fall within the definition of personal data under the Personal Data (Privacy) Ordinance (Cap. 486) (“PDPO”).

5.It transpired that in 1999, the Applicant was sued by Taifook in HCA 9932/1999. On 15 March 2001, the Applicant requested Taifook to provide copies of pay-in slips in relation to the 3 cheques and they were so provided.  On 29 September 2008 the Applicant requested copies of the 3 cheques.  The request was declined.

6.After the issuance of the DAR, Taifook filed a statement with the Commissioner that the 3 cheques were deposited into Taifook’s bank account through the Applicant’s own arrangement and they did not have any copy of the 3 cheques.

7.On 20 March 2009, Miss Maggie Lo, an officer of the Commissioner, spoke to the Applicant on the telephone and the telephone attendance notes recorded that the Applicant confirmed it was he who deposited the 3 cheques into Taifook’s bank account.

8.The Commissioner requested the Applicant to provide evidence for his contention that Taifook did possess copies of the 3 cheques, but the Applicant never replied to the request.

9.In the event, the Commissioner concluded there was no prima facie evidence that Taifook had possession of copies of the 3 cheques.  It also concluded that the right to request a copy of the personal data under section 19 of PDPO was a right to request the copy of the personal data as opposed to obtaining copies of every document containing the data or referring to a data subject. The Commissioner concluded that there was no prima facie evidence from the complaint and a full investigation was unnecessary.

10.The Applicant appealed to the AAB against the decision of the Commissioner.  A hearing was fixed on 17 November 2009.

11.On 23 June 2009, the Commissioner filed a statement with the AAB.  The Applicant obtained an extension of time from 22 July to 22 August 2009 to respond to the Commissioner’s statement.  On 31 August 2009 the Applicant informed the Secretary of the AAB that he needed more time to file his response by the end of October 2009.

12.On the 2 November 2009 the Applicant wrote for further extension of time until the end of December on the ground of the passing away of a relative, and also asked for an adjournment of the hearing on 17 November 2009.

13.The application for adjournment was placed before Mr Jason Pow SC, Chairman of the Board constituted for hearing the appeal.  Mr Pow considered that the applicant had failed to comply with the first extension and had ample time to prepare a written response, and the only factor that would affect granting an adjournment was the passing away of the family member.

14.By a letter dated the 6 November 2009, the Secretary to the AAB, acting upon Mr Pow’s direction, sought from the Applicant further and better particulars of the grounds for adjournment:

“(1) Who is the family member and his/her relationship with you;

(2) When did he/she pass away and what is the expected date of the funeral;

(3) Why are you unable to attend the hearing on 17 November 2009.”

15.On 10 November 2009 the Applicant wrote back and stated that his brother-in-law died in late August 2009 and the funeral took place in October 2009.  He was busy and did not have time to prepare the statement in response, and he would be out of town on 17 November 2009.

16.The Applicant further alleged that Mr Pow had misconducted himself previously in dealing with his wife’s administrative appeal (AAB No. 7/2009) without stating what he wished to do with reference to the alleged conduct.

17.Mr Pow considered that the Applicant had over 4 months from June to November 2009 to prepare his response, and in his application for time on 31 August 2009, he said that he would provide a detailed reply by the end of October 2009 without suggesting his brother-in-law’s death had in any way hampered the preparation of the response.  The funeral had taken place in October 2009, and the first time the Applicant mentioned that his brother-in-law’s death had affected his preparation was 2 weeks before the hearing.  Mr Pow did not consider that the explanation for further extension was convincing.  The only other matter was the Applicant would be out of town on 17 November 2009.  On the 13 November 2009, the Secretary wrote under Mr Pow’s direction seeking further and better particulars of the Applicant’s trip:

“(1) What is the purpose and destination of the trip out of Hong Kong resulting in the (Applicant’s) inability to attend the hearing on 17 November 2009?

(2) Is there any urgency for the (Applicant) to take this trip? And if so, state the reason for such urgency in detail;

(3) When did the need for this trip first arise?

(4) When will the (Applicant) return to Hong Kong?

(5) Apart from seeking an adjournment of the hearing on 17 November 2009, is the (Applicant) making any application in relation to the constitution of the Board?”

18.On 13 November 2009 the Applicant wrote back and suggested that the core issue was his inability to complete his written response due to his family mishap, and Mr Pow had not addressed whether he was prepared to accept his application for extension of time for filing his response.  The Applicant stated that he would not disclose his business secrets without a formal order.

19.On 15 November 2009 the Applicant wrote again stating that he would formally applied not to have Mr Pow as the presiding Chairman or a member in hearing his appeal.

20.Mr Pow considered the answers to the 5 questions posed would not required divulging of any of the Applicant’s business secrets.

21.On 16 November 2009 the Secretary wrote under Mr Pow’s direction to the Applicant that because he had refused to answer the 5 questions posed, he was not in a position to exercise his discretion to adjourn the hearing and the hearing on 17 November 2009 would stand. 

22.The Applicant wrote to the Secretary accusing Mr Pow was lying in that the Applicant had refused to answer his questions when he was waiting for an order from the Board so that he could disclose his business secret to the Chairman.

23.In another letter marked as “the 3^rd letter”, the Applicant accused Mr Pow of not putting forward the true picture in the Secretary’s letter of 16 November 2009.  The Applicant said that he did request the Board to confirm its direction requesting the disclosure of the details of his schedule.  He alleged serious misconduct and integrity of Mr Pow acting as the presiding Chairman.  He reiterated that the core issue was his inability to complete his written response by reason of family mishap, and Mr Pow’s conduct was hostile, selective, unfair, “un-frank” and unreasonable, and requested Mr Pow’s disqualification.

24.In any event, the hearing fixed on 17 November 2009 had to be re-fixed because of the unavailability of another member of the Board.

25.By a letter dated 17 November 2009, the Applicant again requested extension of time to submit his response to 31 December 2009, and the hearing should not be held before then.

26.Mr Pow considered that the Applicant had refused to meet deadlines to file the written response, and looking at the history it was not meaningful to grant any further extension.  Hence, he directed the Secretary to refix the hearing to 24 November 2010.  Mr Pow also directed that the Applicant should provide his written response as soon as possible, and to make an ex post facto application for extension of time for its filing, and it could then be considered whether the Applicant should be allowed to rely on the written response when he was able to see its content.

27.As to disqualification, Mr Pow had sought the opinion of Mr Horace Wong SC, Chairman of the AAB, and it was agreed that the issue of the disqualification should be decided by the members of the Board.

28.Meanwhile, the Applicant filed his written response on 31 December 2009.

29.At the hearing on the 24 November 2010 the Applicant did not appear but was represented by his wife, Miss Yung.  His wife did not insist on the recusal of Mr Pow, but requested an adjournment to allow the Applicant to be present.  His wife said it was her understanding that once an authorized representative was appointed, the Applicant needed not be present.  The Board explained that it wished to put to the Applicant questions wanted his personal answers on two factual issues:

(1) Whether the Applicant had checked his own records such as bank statements to see if the 3 cheques were issued by him;

(2) The conversation he had with Miss Maggie Lo on 20 March 2009.

30.The Board accepted the wordings of the Notice of Hearing might have given an impression that the Applicant needed not be present at the hearing, hence the adjournment was granted.

31.The Applicant was informed that the hearing was adjourned to 3 January 2011, and he was directed to the present at the hearing.

32.On 27 November and 10 December 2010, the Applicant wrote to the Secretary ask for the reasons for his attendance.  Under s. 21(1)(c) of the Administrative Appeal Board Ordinance (Cap. 442) (“AABO”) the AAB was empowered to require the attendance of an appellant.

33.On 16 December 2010, the Secretary replied the Applicant:

“The reason for the Board’s direction was already explained to the wife of the (Applicant) (his appointed representative) during the last hearing, namely, the Board have questions of fact to ask the (Applicant) of which only the (Applicant) has personal knowledge. The questions of fact relate to 2 issues:-

(1) The (Applicant’s) conduct in relation to the 3 cheques in question; and

(2) The (Applicant’s) evidence in relation to paragraph 12 of the Appellant’s Submission at page 378 of the hearing Bundle.”

34.On 22 December 2010, the Applicant wrote back to the Board stating that he would not attend the hearing on 3 January 2011, and he would authorize Miss Yung to attend the hearing and give answers to 2 questions on his behalf.

35.On 3 January 2011 at 9:30 am, Miss Yung appeared as the Applicant’s representative stating the Applicant would not attend the hearing, later disclosing that the Applicant was in the room next door.  Miss Yung said the Applicant was busy and needed to go by 10 am.  The Board asked Miss Yung to tell the Applicant to quickly appear before it to answer the questions.  Miss Yung declined and said the Applicant would not appear.

36.The Board found the conduct of the Applicant and Miss Yung most bizarre as the Applicant was so close by and yet he did not come to the hearing, and did not accept the genuineness of the explanation that the Applicant had to leave by 10 am.

37.The Board intended to proceed to see if Miss Yung could somehow provide hearsay answer to the 2 questions.  Miss Yung then prevaricated and challenged the lawfulness of requiring the Applicant to appear personally.  She challenged the position of Miss Lo of the Commissioner’s office to give evidence on the telephone conversation with the Applicant on 20 March 2009, and she required a written statement of Miss Lo.

38.The Board decided it was empowered by section 21(1)(c) of the AABO to require the attendance of the Applicant to give evidence, and it declined Miss Yung’s request for a witness statement of Miss Lo because her evidence was set out in the telephone attendance notes as exhibited in the appeal bundle.

39.Upon rejection of both applications, Miss Yung launched a recusal application on the basis that Mr Pow was biased in the cause of the interlocutory stage of the appeal, and also Mr Pow was biased against her in her case of AAB 7/2009.

40.The Board had the wife’s previous case bespoken, and considered the application for recusal.  Mr Pow directed the other two members on the law of bias and let them decide.  Even if they concluded that there was no actual bias, they would have proceed to consider apparent bias, i.e. whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased (see Deacons v White & Case Limited Liability Partnership & ors, FAMV 22 & 23 of 2003).

41.Mr Pow said he was unaffected by the fact that the Applicant had made allegations of misconduct or impropriety on his part and held no view against the Applicant on that account.  He referred the other two members to the bundle of correspondence during the interlocutory stage, and said he was mainly dealing with the extension of time and adjournment of hearing.  He had granted an extension of time for 1 month, but the Applicant did not meet the deadline.  Mr Pow directed the two members could consider his position as a legal professional and he is accustomed to people holding different views and utilizing different channels to express their perceived grievances, and that any decision of the Board in the appeal, except on a sole question of law, would have to be reached by a majority.  The crux of the appeal before the Board lied in whether the Commissioner had sufficient ground to conclude that a full investigation of the Applicant’s complaint was not necessary on the facts.

42.In the event, the two members of the Board concluded that there was no actual bias nor any apparent bias. The Board reconvened to announce its decision that the hearing of the appeal shall continue.

43.Miss Yung proceeded to apply for adjournment to call Miss Mica Mak, an account executive for the Applicant at Taifook.  After hearing the argument, the Board concluded that Miss Mak’s evidence was not relevant and the application was refused.

44.The Board indicated to Miss Yung that it would continue to sit until 2 pm in order to complete the hearing. Miss Yung then went to the toilet and remained there for a long time, reappearing only at 2 pm.  The Board then proposed a short lunch break and to resume at 2:45 pm.  Miss Yung claimed she was not feeling well and wanted to see a doctor.  The Board ordered a short adjournment until 4 p.m.  Miss Yung returned at 4:15 p.m. and applied for an adjournment again.  She claimed she was not given enough time to see a doctor.  The application was rejected and Miss Yung went to the toilet and remained thereafter.

45.The Board waited for a long time and had no alternative but to adjourn the case.  The hearing was adjourned to 27 July 2011.  On the eve of the adjourned hearing, the Applicant abandoned his appeal.

Costs Application by the Commissioner

46.The Commissioner applied for costs under s.22(1)(b) AABO.  Under s.22(1)(b), the order for costs does not relate to the subject matter of the appeal or the grounds of the appeal, but that the appellant has conducted the case in a frivolous or vexatious matter.  The fact that the appeal may be groundless or even misconceived was not necessarily, without more, a sufficient basis for making an award of costs against the Appellant (see Madam Wong Suk Wa v the Privacy Commissioner for Personal Data,  AAB 10/2008).

47.The Commissioner’s grounds were as follows:

(1) The application for the DAR for the 3 cheques should never have been made as the Applicant was not the person who owned or deposited the 3 cheques (as he had admitted in giving evidence in DCCJ 15756/2000), and the personal data appearing on the cheques would not belong to the Applicant.

(2) The Commissioner is entitled to rely on the judgment in DCCJ 15756 of 2000 as the basis of the costs application, but the Applicant and Miss Yung have accused the Commissioner of defaming Miss Yung in the letter dated 26 June 2009 and has consumed resources of the Commissioner wastefully.

(3) The Applicant and Miss Yung have made numerous unmeritorious applications (both interlocutory and during the hearing on 3 January 2011), clearly exhibiting their obstinate refusal to accept the unfavourable results of their applications.  The repeated unmeritorious attempts to seek the recusal of Mr Pow demonstrated their stubborn determination to re-open already decided issues without viable legal basis.

(4) Miss Yung’s conduct after the rejection of her various applications on 3 January 2011 clearly demonstrated she was determined to obstruct the due hearing and disposal of the appeal, and was a calculated attempt to delay the due process.  She has resorted to underhanded tactics to force the Board to grant an adjournment.

48.The Applicant has also put in two written submissions, one dated 16 August 2011 by himself, and the second one dated 23rd September 2011 by his solicitors Messrs Dundons.

49.In the Applicant’s own written submission, he challenged:

(1) The Board’s jurisdiction to make directions on parties’ filing of written submissions on the issue of costs;

(2) The Board’s jurisdiction to revise its directions;

(3) Mr Pow’s power to give directions for the Board;

(4) He made an application for costs against the Commissioner for acting in bad faith and an unjust and inequitable manner.

50.In the written submissions by Dundons, it was argued:

(1) The DAR was issued without the benefit of legal advice, and the Applicant’s case was reasonable with commonsense.

(2) The Commissioner erred in law by directly applying the finding of facts in DCCJ 15756 of 2000.

(3) Miss Yung was sick on 3 January 2011 and was taking a rest in the toilet. Her friend overheard the conversations between the Board and Counsel for the Commissioner hinting that the Commissioner could seek costs against the Applicant, and such act in the absence of the Applicant was inappropriate as pre-judging the appeal.

(4) There was a reasonable basis for Miss Yung’s application for a witness statement from Miss Maggie Lo, and under s.18 of the AABO, the Applicant could authorize Miss Yung to answer factual questions that the Board intended to put to the Applicant.  And hence the absence of the Applicant could not be considered as frivolous and vexatious.

(5) It was not unreasonable for Miss Yung to suggest Mr Pow was biased and to ask him to disqualify himself.

Decision of the Board on Costs

51.The Board referred to Ng Yat Chi v Max Share Ltd & anr [2005] HKCU 69 where Ribeiro PJ commented on the phenomenon vexatious litigants and their abuse of the court’s process (at §48):

“There are many variants of such abuse and of what motivates it. It may represent a calculated attempt by a defendant to delay an inevitable judgment or its execution. Or it may be a malicious campaign of harassment directed against a particular adversary. Actions which are unintelligible or wholly frivolous may be commenced by litigants who are unfortunately mentally unbalanced. Sometimes the vexatious conduct springs from some deeply-felt sense of grievance left unassuaged after unsuccessful litigation. The vexatious litigant typically acts in person and characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis. Such conduct can become obsessive with the litigant not shrinking from making wild allegations against the court, or against the other side’s legal representatives or targeting well-known public personalities thought to be some way blameworthy. Numerous actions may be commenced and numerous applications issued within each action.”

52.The Board found as the appeal had been abandoned, it needed not elaborate on the lack of merits of the appeal itself.  In any event, the lack of merits was really a backdrop of the Applicant’s conduct of his case.  Hence, the Board would focus on the Applicant’s conduct.

53.The Board held that under s.21(1)(a) of AABO, it could determine its own procedure,  and under s.21(1)(m), it could do all things ancillary to the powers conferred by that section.   Hence the Board had jurisdiction to direct filing of written submissions on costs as ancillary to its powers to make order for costs under s.21(1)(k).

54.The directions were drafted by Mr Pow and circulated to the other two members and were issued after agreement by the two members.  Under the ABBO, there was no requirement that directions on procedural matters must be made by all members meeting physically.

55.The revision of the directions was to cater for the Applicant’s counter application for costs against the Commissioner.  The Board found that there were absolutely no merits in the strained and unreasonable arguments for costs against the Commissioner.

56.Messrs Dundons submitted that the Applicant’s case was all along that he did not issue the 3 cheques, but it was not so made clear on the papers filed by the Applicant. If that were the case, the Applicant would have no basis to say the 3 cheques contained his personal data.

57.Miss Lo’s telephone attendance notes recorded the Applicant admitting it was he who deposited the 3 cheques into Taifook’s bank account.  And that was the reason why the Board wanted to hear the Applicant’s evidence on whether he had issued the 3 cheques, or whether he took steps to find out whether the 3 cheques were or were not issued by him, and whether the telephone conversation between Miss Lo and him did take place.

58.The Judgment in the DCCJ action was based on what the Applicant had admitted in viva voce evidence, and it stated the Applicant did not issue and deposit the 3 cheques into Taifook’s account. Hence it could not be accepted that the Applicant’s case was objectively reasonable and supported by commonsense.

59.Given the procedural history and what happened at the various hearings, the Board had no difficulty in finding that the Applicant through himself and Miss Yung did conduct his case in a frivolous and vexatious manner.

60.Miss Yung was deliberately avoiding the hearing on 3 January 2011 by disappearing into the toilet and remaining there for substantial period of time and she used the tactics twice that day.  She thought she succeeded in securing an adjournment and then the Board indicated it would proceed after a short lunch break at 2:45 pm, then she claimed to be sick.  She was given 1½ hours’ break to consult a doctor and was told that if an emergency arose, she could telephone and inform the Secretary.  In the end, she did not consult a doctor but claimed she was not given enough time to do so.  The Board did not accept that she was genuinely unwell.  She disappeared again after she failed to obtain an adjournment.  After substantial waiting, the Board had to adjourn the hearing in her absence.  The adjournment was forced upon the Board and orchestrated by Miss Yung.

61.The Board did not judge the Applicant and Miss Yung purely on the merits or lack of merits of the applications, but their conduct of the Applicant and his authorized representative should be viewed in a continuum.  The Board was satisfied that viewing the entire chronology of events, the Applicant, through himself and Miss Yung, did conduct his case in a frivolous and vexatious manner.

62.The Board accepted that the adjournment of the hearing on 24 November 2010 did not result from any fault on the part of the Applicant.  Hence no cost for that day was ordered.

63.The Board ordered that the Applicant do pay the Commissioner’s costs of and incidental to the appeal, save and except the hearing on 24 November 2010, to be taxed if not agreed, in accordance with the Order 62 of the Rules of the District Court (Cap.336H).

The Applicant’s grounds

64.The Applicant’s grounds for applying for leave can be summarized as follows:

(1) Mr Pow invited in writing the parties to make submissions on costs immediately after the abandonment of the appeal without first seeking the opinion or approval of the other two members and the procedure was extremely rare;

(2) At the hearing on 3 January 2011, the Applicant’s wife was sick and in the toilet and a friend in the hearing room heard the Board hint the Commissioner to seek costs against the Applicant (audio record applied for), i.e. the Board pre-judged the appeal as early as 3 January 2011;

(3) Putting (1) and (2) together further prove that Mr Pow was biased against the Applicant and prejudged the appeal as early as 2011 and used the Commissioner to work for him by hinting he would rule costs in the Commissioner’s favour;

(4) At the hearing on 3 January 2011, Mr Pow only allowed 1½ hours to the Applicant’s wife to see a doctor, the Board did not accept she was genuinely unwell, hence, Mr Pow trapped the Applicant’s wife to the impossible and badmouthed she conducted the case in a frivolous manner;

(5) The key point in Ng Yat Chi v Max Shine was abuse of the court process by attempting to re-try unsuccessful litigation, but the Applicant withdrew the appeal before the hearing and that proves the Applicant did not abuse the court process;

(6) The submissions on costs were made in 2011 but it took the Board 3 years to give its decision in 2014;

(7) Mr Pow was wrong on various facts but they were irrelevant and would not be addressed unless directed by the Court;

(8) Mr Pow was working with the Commissioner to apply for costs against the Applicant in bad faith and costs should be awarded to the Applicant.

Transcript of the hearing on 3 January 2011

65.The Applicant obtained the transcript of the hearing on 3 January 2011 prepared by DTI Corporation Asia Ltd.  It shows that before adjourning the hearing, Mr Pow commented that under s.21(1)(k) of AABO, the Board might require the appellant to pay costs if the case were conducted in a frivolous or vexatious manner, and requested counsel for the Commissioner to submit authorities that could assist as to how the question of costs should be decided.

Relevant principles

66.Leave for judicial review will not be granted unless it is arguable in the sense that only a reasonably arguable claim with realistic prospects of success should be given leave to proceed (see Chan Po Fun v Winnie Cheung (2007) 10 HKCFAR 676).

67.Further, judicial review is not an appeal as the Applicant has indicated.  The Court exercising the supervisory jurisdiction is not seized with examining the evidence in minutia and substituting its finding of facts or exercise of the discretion.  The decision below is not to be disturbed unless it is Wednesbury unreasonable in that no reasonable decision maker would come to that conclusion.

Discussions

68.The Applicant made the following submissions in support of the leave application:

(1) There was no vexation or frivolity or abuse of process as the Applicant had only make single application respectively for the adjournment, witness statements and calling of the witnesses Miss Lo and Miss Mak, the recusal of Mr Pow, and his wife requested adjournment on 3 January 2011 due to sickness, and there was no repeated applications or proceedings as in Max Share;

(2) Mr Pow ignored the plight of the applicant in applying for adjournment when there were numerous documents and the death of his relative hindered the preparation, and disbelieving the his wife was genuinely sick;

(3) Mr Pow was biased. He hinted the Commissioner to apply for costs in the absence of the Applicant’s representative, and he invited submissions on costs by the Commissioner without seeking agreement of the other two members immediately upon abandonment of the appeal;

(4) Mr Pow was wrong to refer to the judgment in DCCJ 15756 of 2000 that the Applicant was the person who issued the 3 cheques, and in refusing to call Miss Lo and Miss Mak for cross-examination;

(5) Mr Pow was wrong in refusing to recuse himself, and he delayed for 3 years before handing down the decision on costs.

69.At the outset, I should make it clear that I must not surmise on the merits of the appeal as it was abandoned.  I shall focus on the conduct that have taken place against the backdrop that the Applicant never provided any support for his contention that Taifook possessed copies of the 3 cheques, and the appeal was eventually abandoned.

70.The AAB is not a court of law and is not subject to strict rules of evidence.  It may determine its procedure (s.21(1)(a), AABO).  The AABO also provides that procedural matters (such as requiring further particulars (s.12) and fixing of hearing date (s.16)) may be determined by the Chairman (or the Vice-Chairman acting as Chairman), and the hearing and decision have to be made by the Board (s.21).  I see no arguable case of any procedural irregularity in the interlocutory stage.

71.The Applicant was granted extension of time from July to August 2009, and he indicated that he would file the response by the end of October 2009.  On 2 November 2009, he asked for further time due to the passing away of a relative, and said he would be out of town on the hearing date of 17 November anyway.  The Applicant had over 4 months to prepare his statement, and it was only reasonable for any tribunal to have made enquiries as to the grounds for extension and adjournment.  The Board was exactly addressing the core issue of whether the Applicant genuinely did not have enough time to prepare his case.  Yet the Applicant made the wildest allegations of lying and hostility against the Chairman as if his application for time was bound to be rubberstamped.  Further, the procedure of the ABB was in essence informal in nature, but the Applicant insisted on a formal order before he would answer questions relating to his intended business trip.  In any case, there is no need to divulge any sensitive or confidential information.  I failed to see any basis for the allegation save to complicate and proliferate matters.

72.The events at the hearing on 3 January 2011 were indeed bizarre.  The Applicant arrived at 9:30 pm but refused to appear before the Board.  He could have used the half an hour until 10 am when he had to leave but choose to stay next door.  His wife had asked for an adjournment before for the Applicant to appear.  In any case, his wife was purportedly representing the Applicant on 3 January 2011 but instead of answering the questions to the board, she bought up the matter of recusal again and stayed in the toilet for long periods of time alleging she was not well.

73.The recusal of the Chairman was rejected the 2 independent members where Mr Pow himself had not been privy.  Looking at all the circumstances in the case, there was no cause for any doubt on the Members’ integrity and decision at all.

74.The Board concluded that the wife was malingering, and they were in the best position to make such finding as they had the opportunity to observe her directly.

75.As to the point that Mr Pow conspired with or hinted the Commissioner to make the costs application, the transcript showed that Mr Pow was merely asking counsel for the Commissioner to find relevant authorities on costs for frivolous or vexatious conduct, and he made no indication as to any outcome.  As such costs do not depend on the merits but conduct of the case, there is also no prejudice on the substantive merits whatsoever.  Any reasonable tribunal in the position of the Board could have raised such issues for further discussions at the appropriate juncture.  The fact that the AAB wrote to the Commissioner to enquire about costs application immediately upon abandonment of the appeal was neither here nor there.  The matter was decided by the full Board.

76.The notes of Miss Lo recorded that the Applicant confirmed that it was he who deposited the 3 cheques with Taifook.  They contained the full facts and there was no point in asking for a statement.  In any case the Applicant admitted in evidence in DCCJ 15756/2000 that he was not the person who owned or deposited the 3 cheques, and that could be used because it was relevant even then strict rules of evidence were applicable (and that was also in line with the later submissions of his solicitors Dundons).  Hence, it was reasonable for the Board to hear the Applicant himself before acting on the Applicant’s own statement n the District Court case.

77.Granted that the Applicant has not sought to re-open application or proceedings that have been concluded, that is not the only basis where conduct can be described as frivolous or vexatious. It also includes conduct not capable of reasoned argument or foundation, oppressive and/or lacking bona fides (Hong Kong Civil Procedure 2016 para.18/19/8).

78.It was the Applicant who brought the appeal.  But his conduct and also of his wife really militated directly against the expeditious determination of the appeal.  One can hardly agree with the Applicant’s submission that those applications were normal.  One cannot escape conclusion that the Applicant’s conduct was at least partly precipitated by his ill conceived hostility and bias towards Mr Pow.

79.It is true that the Board delayed for 3 years in handing down the decision on costs.  The Applicant submitted that his poor memory of the matters might affect taxation of costs, if any.  However, the taxation could be fairly dealt with by referring by the existing papers, and at any rate the lengthy and detailed submissions of the Applicant did not tend to show any prejudice of loss of memory.

80.The hearing on 17 November 2009 had to be re-fixed because of the unavailability of a member of the Board. It is the normal incidence in the course of the hearing and hence, I see nothing wrong in principle to include those costs to be borne by the Applicant as well.

81.In the premises, there is no arguable case shown and leave to issue judicial review is refused.

The Applicant, in person