The Legislative Council Commission v. Sixtus Leung Chung Hang

CAMP 72/2021

[2021] HKCA 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 72 OF 2021

(ON AN INTENDED APPEAL FROM DCCJ NO 4497 OF 2017)

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BETWEEN

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Before:  Hon Chu and Au JJA in Court

Date of Judgment:  1 June 2021

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J U D G M E N T

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

1.In DCCJ 4497/2017 (“the Action”), the Legislative Council Commission (“the plaintiff”) claimed against Mr Sixtus Leung Chung Hang (“the defendant”) for repayment of remuneration paid to him. On 5 May 2020, the Registrar of District Court entered final judgment against the defendant together with interest and costs (“the Judgment”).

2.The Intended Party, Ms Leung Kit-Hing Doris (“Ms Leung”), who was and is not a party to the Action, has made numerous unsuccessful applications for leave to be added as a party and/or to give evidence, and has also attempted unsuccessfully to appeal the various decisions refusing her applications.  Some of these applications and attempts to appeal had been set out in the judgment of this Court (Poon CJHC, Lam VP and Au JA) in CACV115/2020, [2021] HKCA 259. 

3.For the present purpose, it is sufficient to mention the following applications/appeal made by Ms Leung in the Action:

(1)  On 4 May 2020, Ms Leung filed an inter partes summons to stay the plaintiff’s claim against the defendant.  On 5 May 2020, the Registrar of District Court dismissed the summons (“Refusal of Stay Order”).

(2)  On 12 May 2020, Ms Leung made an urgent ex parte application by letter that she be given standing in the Action to apply for stay of the proceedings.  The application was dismissed by HH Judge Andrew Li on the same day.

(3)  Also on 12 May 2020, Ms Leung filed a notice of appeal in the District Court to appeal the Judgment and the Registrar’s Refusal of Stay Order to a judge in the District Court.  It was stated in the notice of appeal that the appeal was made ex parte and that the notice of appeal was served on the plaintiff’s solicitors as a matter of courtesy.

(4)  On 22 July 2020, Ms Leung filed an ex parte summons (“July Summons”) to apply for stay of execution of the Judgment. 

(5)  On 15 September 2020, Ms Leung filed another ex parte summons (“September Summons”) applying to adjourn the hearing of the appeal sine dine. 

(6)  The appeal, the July Summons and the September Summons were heard by HH Judge KC Chan (“the Judge”) on 18 September 2020.  At the hearing, upon Ms Leung’s indication that she would not proceed with the September Summons and on her request, the Judge granted her leave to withdraw the September Summons (“the 1^st Order”).  The plaintiff’s solicitors did not attend the hearing but had by letter made submission that the appeal and the summonses should be dismissed.

(7)  By his judgment handed down on 25 September 2020[1], the Judge (i) dismissed the appeal together with an order nisi that Ms Leung pays the plaintiff’s costs on indemnity basis (“the 2^nd Order”); and (ii) dismissed the July Summons together with an order nisi that Ms Leung pays the plaintiff’s costs, if any, on indemnity basis (“the 3^rd Order”).

4.Subsequently, the plaintiff’s solicitors drew up the 1^st, 2^nd and 3^rd Orders and on 3 November 2020 filed the sealed orders of the three orders.

5.On 8 March 2021, Ms Leung issued the present summons to apply for leave to appeal the 1^st, 2^nd and 3^rd Orders. 

6.On 29 March 2021, the Registrar of Civil Appeals pointed out to Ms Leung that her summons was liable to be struck out on the grounds that (i) she had not previously applied to the Judge for leave to appeal; (ii) she had made the same or similar applications in CACV 115/2020, CAMP 124/2020, CAMP 170/2020 and CAMP 178/2020 all of which had been dismissed by the Court of Appeal; and (iii) the proposed grounds of appeal are unintelligible.  The Registrar of Civil Appeals directed Ms Leung to lodge, on or before 16 April 2021, written submission to explain why her summons should not be dismissed. These directions were communicated to Ms Leung by letter dated 31 March 2021. 

7.On 1 and 7 April 2021, Ms Leung filed two other summonses. On 9 April 2021, she further filed a notice of appeal.  She has, however not lodged any written submission as directed by the Registrar of Civil Appeals. 

8.In the meantime on 11 March 2021, this Court handed down the judgment in CACV 115/2020, CAMP 124/2020, CAMP 170/2020 and CAMP 178/2020[2], which ordered (at [30]), inter alia, on an interim basis that Ms Leung be restrained from filing any proceedings and applications in the Court of Appeal on matters arising from proceedings involving the defendant pending the determination on whether to make a Restricted Proceedings Order and a Restricted Application Order against her, and that if she insisted on filing any papers, such papers shall be expunged from the court file. 

9.In accordance with the above order, the Registrar of Civil Appeals directed on 11 May 2021 that the two summonses and the notice of appeal be expunged from the court file.  A bundle of documents lodged by Ms Leung on 28 April 2021 was similarly ordered to be expunged.

10.Having considered the summons together with the documents attached, we are of the view that it is appropriate to determine Ms Leung’s present application on the papers without an oral hearing, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

11.We are of the view that, for the reasons set out below, the summons should be dismissed.

12.First, Ms Leung had previously sought to appeal or apply for leave to appeal the Judgment and the Refusal of Stay Order, which had been dismissed by this Court in CACV 115/2020 and CAMP 178/2020: see this Court’s judgment at [8], [16], [19] and [24].  The present summons in so far as it relates to the Judgment and the Refusal of Stay Order is clearly an abuse of process.  For this reason alone, this part of the summons must be dismissed.

13.Second, the application for leave to appeal is seriously out of time and no explanation for the delay has been given.  Further, the proposed grounds of appeal as appeared by the summons are unarguable.  It would appear that Ms Leung’s primary complaints are that: (i) the Judge did not follow paragraph 29 of Practice Direction 4.1 to dispose of the applications on paper and instead insisted on an oral hearing, resulting in delay and incurrence of costs; (ii) it is an irregularity to allow the plaintiff’s solicitors to seal the 1^st, 2^nd and 3^rd Orders as the solicitors were not present at the hearing; and (iii) the Judge failed to ascertain her locus from the “privileged” documents. 

14.As to (i), Practice Direction 4.1 regulates the conduct of civil appeals to the Court of Appeal.  It has no application to the hearing of appeals from decisions of Masters or Registrar in the District Court.  As to (ii), Order 42 rule 5(5) of the Rules of the District Court, Cap. 336H provides that every order made and required to be drawn up must be drawn up by the party initiating the application and if that party fails to draw up the order within seven days after it is made any other party affected by the order may draw it up.  Since the 1^st, 2^nd and 3^rd Orders were not drawn up within seven days after they were made, the plaintiff’s solicitors were entitled to draw up the orders and had them sealed pursuant to Order 42 rule 5(6).  As to (iii), the Judge had in [32] to [42] of his Decision dealt with the issue of Ms Leung’s locus in the Action and what she asserted were “privileged” and “confidential" documents showing her locus. It is unclear in what way Ms Leung said the Judge had erred in this part of his decision.

15.Accordingly, we dismiss the summons of 8 March 2021 and make no order as to costs. 

16.As the application is wholly without merits, we further order under Order 59 rule 2A (8) that no party may under rule 2A (7) request the above determination to be reconsidered at an oral hearing inter partes.