Leung Kam Chung Kenneth v. Commissioner of Police

HCA 1936/2021

[2024] HKCFI 2734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1936 OF 2021

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D E C I S I O N

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1.On 19 July 2024, this Court handed down a decision (“July Decision”) dismissing the appeal of Dr Leung against Master Ho’s decision.

2.This is Dr Leung’s summons dated 6 August 2024 for leave to appeal against the July Decision.

3.The intended grounds of appeal are as follows:

(1)  This Court made a false statement in the July Decision stating that the skeleton submission lodged with the Court dated 23 February 2024 (“the Submission”) was prepared by Ms Chao when in fact it was signed by Mr David Yim SGC on behalf of the Commissioner.

(2)  This Court did not deal with the issue of perjury or the filing of false statements made by the Commissioner or his counsel to the Court in a proper manner.

(3)  There was wrongful calculation on costs.

(4)  There was wrong assumption of the purpose of the summons.

4.The summons is opposed by the Commissioner on the grounds that Dr Leung’s summons is out of time and the intended appeal has no reasonable prospect of success.

Legal principles for granting leave to appeal and leave to appeal out of time

5.The legal principles would have been known to Dr Leung as they have been set out in the Decision in this case dated 20 March 2024 (“March Decision”), §§2-5.  In gist, Dr Leung has to show reasonable prospect of success, ie that the prospect of succeeding must be more than fanciful without having to be probable.  On a matter involving exercise of discretion, it has to be shown that the Court has exercised her discretion under a mistake of law, or in disregard of principle, or under a misapprehension as to facts, or that the Court took into account irrelevant matters, or the conclusion which the judge reached in the exercise of her discretion was outside the generous ambit within which a reasonable disagreement is possible.

Application out of time

6.Dr Leung was out of time by 4 days.  This was not the first time he sought leave to appeal out of time.  See the March Decision, §§7-13.  He should thus be familiar with the time frame for seeking leave to appeal and the need to file an affirmation to explain his delay.  And yet Dr Leung was completely silent on why he was out of time this time until he lodged his submission in reply.  The Court will not consider his explanation for the delay which was not adduced by affirmation. His delay was inexcusable although insubstantial.  He must show a real prospect of success on the merits.

Merits of the intended appeal

7.Most of the written and oral submissions of Dr Leung re-run the arguments of the underlying summons.  It is a wrong approach.  I focus on application of the tests in paragraph 5 above.

Intended Ground 1 – false statement in the July Decision

8.This Court admits the wrong reference as to counsel’s name for the Submission.  However, there was no mistake as to which skeleton submission I was analyzing.  The error in counsel’s name did not and would not affect my analyses and conclusion in the July Decision.  The intended Ground 1 has no merits.

Intended Ground 2 – failure to deal with the perjury/filing of false statements by the Commissioner to the Court in a proper manner

9.In essence, Dr Leung’s complaint is that the Submission contained a perjury/false statement (asserting that Dr Leung was not requesting for further and better particulars relevant to the pleaded defence), and did not contain a statement of truth.  And yet this Court did nothing to hold the Submission inadmissible or report the perjury/false statement to the police for investigation.  The Submission was lodged on behalf of the Commissioner, written under his instructions.  The Commissioner must have read it and was responsible and accountable for every word in it. 

10.Whether the Commissioner had read the Submission, counsel (whether from DOJ or the private bar) was acting on his behalf and advancing the case of the Commissioner.  I have explained in the Decision dated 19 September 2023, §§40-41 and the March Decision §§16-17, why Dr Leung was not requesting for further and better particulars and that perjury relating to the defence should be explored at the trial; I shall not repeat the same here.

11.In paragraphs M(s) to (t) of his submission in reply, Dr Leung submits that this Court had cited Nu Pharm Ltd  (卡士蘭有限公司) v Champ Group Limited (智盟有限公司) & Ors [2021] HKCFI 751 , §§21-24, 34-35, 44 and 46, Lok J, but all the references quoted had nothing to do with perjury. 

12.Dr Leung is correct.  However, this Court cited Nu Pharm not for any proposition on perjury but on when a court can refuse to order particulars where the requests concern matters of evidence, amount to cross-examination in disguise or are beyond the scope of the averments.  See §39 of the Decision dated 19 September 2023.  Dr Leung has not shown how this Court has erred in law or in the application of those principles.

13.Order 41, rules 2 and 3, and §1 of PD 19.3 require the inclusion of a signed statement of truth in various documents - pleadings and particulars of pleadings, witness statements, expert reports, statement of damages and answer to statement of damages.  A set of written submission may quote facts from those documents but it does not seek to adduce primary facts, hence no statement of truth is required.  There is no basis to rule the Submission inadmissible for lack of a statement of truth.

14.The intended ground 2 simply has no merits.

Intended Ground 3 – wrongful calculation of costs

15.I have given full explanation in the July Decision as to why I upheld Master Ho’s decision on costs.  On page 25 of the transcript of proceedings before Master Ho, the learned Master explicitly referred to his allowing only 50% of the application when he computed the costs to be awarded.  Dr Leung’s assertion that DOJ “slipped in” a figure of $65,520 for counsel’s fees only after that hearing before Master Ho was baseless.  Those counsel’s fees were included in the sum of $85,491 which Master Ho referred to on page 24 of the transcript.  The figure “slipped in” was $15,600 instead, which was computed at the hearing only after the length of hearing was known.  That costs statement appears at Appendix 10 of Dr Leung’s own hearing bundle for this hearing.    

16.Dr Leung has not shown that Master Ho or this Court has erred in law or, that the exercise of discretion on costs was outside the generous ambit within which reasonable disagreement was possible.  Ground 3 is not arguable at all.

Intended Ground 4 – wrong assumption by Master Ho and this Court on the purpose of the summons

17.In essence, Dr Leung disagrees with Master Ho and this Court’s view on the facts and re-runs his arguments for the underlying hearing.  It has not been shown that this Court has erred in law or that my view of the facts could not be supported by the evidence.  Ground 4 is not arguable.

Conclusion

18.In summary, none of the 4 grounds are arguable.  I decline to give leave to appeal.

19.On a nisi basis, costs of the application should be to the Commissioner, summarily assessed at $29,709.00.

20.I thank Ms Chao for her assistance.