Choy Bing Wing v. Hong Kong Institute of Engineers

CACV 275/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2015

(ON APPEAL FROM HCA 309/2015)

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REASONS FOR DECISION

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Hon Barma JA (giving the Reasons for Decision of the court):

1.This was the hearing of two matters. The first was an application by way of Notice of Motion filed by the appellant, Mr Choy Bing Wing (“Mr Choy”), on 19 May 2016, seeking to reverse or vary certain directions given by Kwan JA on 16 May 2016. The second was the consideration by the court of whether or not a restricted application order (“RAO”) should be made against Mr Choy in connection with this appeal, notice of this having been given to Mr Choy by a letter from the court to Mr Choy dated 20 May 2016 to which was annexed a draft of the RAO that the court, and a formal Notice of Hearing issued on the same date.

2.The background to this matter can be briefly summarized as follows:

(1) On 5 February 2015, Mr Choy issued the writ in HCA 309/2015, in which he sought a declaration that an order dated 17 January 2013 made by the Council of the Hong Kong Institute of Engineers (“the HKIE”) that Mr Choy’s membership of the HKIE be suspended for 3 years with effect from 18 January 2013 on the grounds that Mr Choy had been guilty of improper conduct (which has not yet come into force, as Mr Choy promptly served a Notice of Appeal against that order), was null and void.

(2) The HKIE applied to strike out Mr Choy’s claim.  That application was heard by Au-Yeung J on 18 November 2015. By her Decision dated 27 November 2015, Au-Yeung J acceded to that application and struck out Mr Choy’s claim.

(3) By his Notice of Appeal dated 9 December 2015, Mr Choy appealed against Au-Yeung J’s decision.  The appeal is fixed to be heard on 29 September 2016.

(4) By a letter dated 27 April 2016, Mr Choy requested that the audio recording of the hearing before Au-Yeung J on 18 November be played at the hearing of the appeal.

(5) On 6 May 2016, Kwan JA directed that the application be dealt with at the hearing of the appeal proper on 29 September 2016, and that arrangements be made for the recording to be played in court should the application be granted.

(6) On 13 May 2016, Mr Choy filed a “Motion (To reverse a single judge)” seeking to set aside the directions given by Kwan JA and seeking two declarations.

(7) On 16 May 2016, Kwan JA gave directions that the Motion dated 13 May 2016 should also be dealt with at the hearing of the appeal proper.

(8) On 19 May 2016, Mr Choy filed another “Motion (to reverse a single judge)” seeking to set aside the directions referred to in the previous sub-paragraph and also for five further declarations.

(9) On 20 May 2016, the court (Kwan and Poon JJA) wrote to Mr Choy to inform him that the Motion of 19 May would be dealt with at this hearing, and that consideration would also be given to the making of an RAO against him in respect of this appeal.

3.Despite having been given notice of this hearing, Mr Choy did not appear.  We therefore proceeded to deal with it in his absence.

4.Dealing first with Mr Choy’s Motion, we are satisfied that it is completely without merit.  The directions given by Kwan JA on 16 May 2016 were clearly an exercise of her case management powers in relation to this appeal, and as such should only be interfered with if the directions given were clearly wrong.  Far from this being the case, the directions were clearly rightly made with a view to saving time and costs, and avoiding the unnecessary use of the court’s time and resources.  The same is true of the initial directions given by Kwan JA on 6 May 2016.  No prejudice could be caused to Mr Choy by having his application to play the recording of the hearing before Au-Yeung J dealt with at the hearing of the appeal proper, particularly as arrangements for the playing of the recording at the hearing of the appeal (if his application should succeed) were to be put in place.  We therefore dismiss the “Motion (To reverse a single judge)” filed on 19 May 2016.

5.We consider next whether it would be appropriate to make an RAO against Mr Choy in relation to this appeal.  In our view, such a course is clearly called for in the light of Mr Choy’s conduct described in paragraph 2 above.  It would appear that Mr Choy will seek to revisit all directions given by the court that do not meet with his approval, regardless of whether there is any proper basis for doing so.  In these circumstances, it is clearly appropriate to impose an RAO on Mr Choy so as to prevent him from abusing the process of the court and wasting its resources with unwarranted and unmeritorious applications.  We therefore make an RAO against Mr Choy in the following terms:

“1. The Appellant Choy Bing Wing is prohibited from making any further application to the Court of Appeal in CACV 275/2015, whether before or after judgment, without the leave of the designated judge, namely, the Honourable Madam Justice Kwan, JA, being first obtained.

2. All applications for leave to issue an application in CACV 275/2015 (‘RAO leave applications’) must be made in writing to the designated judge (and not to any other Judge or to a Master) without giving notice of the application to the intended respondent.

3. In the event that the designated judge is not available to deal with the RAO leave application, the same should be dealt with by the Honourable Mr Justice Barma, JA or the Honourable Mr Justice Poon, JA.

4. All RAO leave applications and all matters ancillary thereto should be dealt with on the papers and without any oral hearing unless the designated judge or one of the other two judges mentioned in paragraph 3 hereof otherwise directs.

5. Where leave to make the substantive application is granted, service of the order giving leave must accompany service of the substantive application.

6. If, contrary to the RAO, the Appellant Choy Bing Wing seeks to issue an application in CACV 275/2015 without prior leave of the Court, the purported application should forthwith be referred by the Registry to the designated judge or one of the other two judges mentioned in paragraph 3 hereof for such application to the dismissed in accordance with the RAO.

7. If, contrary to the RAO, the Appellant Choy Bing Wing purports to serve on the respondent any application in CACV 275/2015 without at the same time serving on the respondent a copy of an order giving leave to issue such application, such application should automatically stand dismissed, so that neither the respondent nor the Court would be required to take any steps in response.

8. Notice of each decision by the designated judge or one of the other two judges mentioned in paragraph 3 hereof made pursuant to this Order be given in writing to the Appellant Choy Bing Wing and to the respondent.”

6.We do, however, wish to state, for Mr Choy’s benefit, that the making of the RAO will not affect the hearing of Mr Choy’s appeal, or his application for the recording of the hearing below to be played at the hearing of his appeal, which application will be dealt with at the hearing of the appeal proper as directed by Kwan JA on 6 May 2016.

The appellant / plaintiff was not represented, absent

Wilkinson & Grist, for the respondent / defendant, absent