Lam Ar Fu Peter v. Building Authority

CACV 68/2019

[2021] HKCA 1596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 68 OF 2019

(ON APPEAL FROM HCAL NO 2259 of 2018)

________________________

BETWEEN

________________________

Before:  Hon Cheung, Chu and Au JJA in Court

Date of Decision:  29 October 2021

________________________

D E C I S I O N

________________________

Hon Au JA (giving the Decision of the Court):

1.This Court (Lam VP, Cheung and Au JJA)  handed down our judgment on 26 May 2021 (“the CA Judgment”)  dismissing the applicant’s appeal against a decision of Chow J (as he then was)  dated 30 January 2019 refusing to grant leave to the applicant to apply for judicial review against a costs decision made by the Appeal Tribunal (Building)  (“the Tribunal”).

2.On 22 June 2021, the applicant filed a Notice of Motion seeking to appeal the CA Judgment to the Court of Final Appeal (“CFA”). In his Notice of Motion, the applicant referred this Court to the attached 77-pages written submissions without setting out any grounds of appeal.

3.On 24 June 2021, the Registrar of Civil Appeals (“RCA”)  directed, among others, that as the applicant’s written submissions exceeded the limit as stipulated in Practice Directions 2.1, it would not be considered by this Court.  The RCA further directed (a)  the applicant to file and serve a revised written submissions conforming with the page limit by 16 July 2021, and (b)  the parties shall not file or lodge any further documents or other written submissions without the leave of the court, and any such documents or submissions filed without leave of court or under these directions will not be considered by the Court.  For convenience, we will refer to these directions as “the RCA Directions”.

4.Notwithstanding the RCA Directions, the applicant on 5 July 2021 without leave from the Court filed an affirmation seeking to adduce fresh evidence and lodged a letter stating that he had informed the putative respondent his intention to apply for leave to appeal to the CFA.  On 15 July 2021, the RCA made further directions that the affirmation and letter filed by the applicant on 5 July 2021 would not be considered pursuant to paragraph 7 of the directions made on 24 June 2021.  We agree with the RCA and would not consider the affirmation and the letter.

5.The applicant’s revised written submissions were then filed on 12 July 2021.

6.Thereafter, on 5 August 2021, the applicant filed another two Notices of Motion titled “緊急動議：禁止阻攔本案終審法院上訴申請之涉嫌「妨礙司法公正」事件” and “緊急動議：請求暫緩相關案件訟費聆訊和訟費給付”.  He further submitted two petitions respectively on 9 August and 11 August 2021[1].  We would in this judgment refer these documents collectively as “Other NoMs and Petitions”.  Again, they were filed without leave of the Court and thus in breach of paragraph 7 of the RCA Directions.

7.According to section 22(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the CFA will only 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 CFA for decision.

8.After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

9.In support of this application, the applicant has formulated the question of law which he says is of great general or public importance at paragraph 10 of his revised written submissions as follows:

“香港是Common law地域成員之一，現時原訟庭與上訴庭似未盡Common law地域法院之責 (和基本法第八條和十八條之責)  以「立法原意」角度解釋BO sec.51(1)條文；另外沒有採納極具權威性之英國權威文獻 ‘Costs in Tribunals’ 之「立法原意」和「no cost-shifting except unreasonable conduct」之原則指示亦是有違基本法第八十四條，以上事情更令公衆懷疑香港法院已經放棄以基本法或是 ‘Common law’ 角度審理案件，此重要缺憾需要終審法院予以糾正。” [sic]

10.Under this question, the applicant effectively repeated his arguments in his revised written submissions and the Notice of Motion that the Tribunal ought not to have adopted the principle of “costs to follow the event”, but instead should have adopted the principle of “No cost-shifting except unreasonable conduct” in determining the costs between the applicant and the Building Authority.

11.At [12] - [19] of the CA Judgment, we explained why we rejected the applicant’s submissions that the Tribunal was wrong in the applying the principle of “costs to follow the event”.  For the present purpose, other than repeating his contentions advanced and failed before us, the applicant has simply failed to identify any errors in our reasons with any sufficient particularities[2]. Moreover, it is clear from our reasons that the applicable general principles in this regard are well established and settled, and our conclusion reached in the CA Judgment after applying the well-established principles is plainly fact-sensitive.  In the premises, the question posed simply does not involve any question of great general or public importance, nor is it reasonably arguable.  No leave to appeal to the CFA should be granted.

12.In the circumstances, we dismiss the Notice of Motion.

13.Further, we will similarly dismiss the Other NoMs and Petitions as (a)  we have refused leave for the applicant to appeal to the CFA, and (b)  in any event, they were all filed without leave of the Court pursuant to paragraph 7 of the RCA Directions.

14.There is no reason why costs should not follow the event.  The putative respondent has filed a statement of costs dated 23 July 2021 asking for the sum of HK$6,035. The applicant has not responded to or commented on it.  In any event, we find this sum to be reasonable, in particular in light of the voluminous materials that have been submitted by the applicant purportedly in support of this application.  We therefore order that the applicant do pay the putative respondent costs of this application, summarily assessed to be HK$6,035.

Mr Lee King Hay, Ryan, Government Counsel of the Department of Justice, for the putative respondent

The applicant acting in person