HKSAR v. Kit Choy Development Ltd

HCMP 2357/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2357 OF 2010

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BETWEEN

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Before : Deputy High Court Judge Burrell in Chambers

Date of Hearing : 22 February 2012

Date of Decision : 27 February 2012

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D E C I S I O N

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1.By this application the defendant, represented by Mr Choy Bing Wing, seeks leave to appeal to the Court of Appeal against this court’s dismissal of his appeal against a decision given by Master Levy on 11 November 2011.

2.The main issue before Master Levy concerned the making of a charging order absolute in respect of a property owned by the defendant following the non-payment of a fine and legal costs.

3.No appeal was lodged against the charging order.  The defendant’s appeal was limited to “the interest rate applied and the interest charged by the plaintiff” and “the bill of costs be allowed in full without regard to the fraudulent nature of the purported judgment debt”.

4.An oral decision dismissing the appeal was given on 12 January 2012.  Mr Choy had left the court room at the time it was delivered, thus was not aware of the outcome until the written version was delivered to him towards the end of January.

5.His summons seeking leave to appeal to the Court of Appeal is dated 3 February 2012.

6.The defendant requires leave, the issue on appeal being limited to costs and interest, pursuant to the High Court Ordinance, Cap 4 section 14AA(1).  For leave to be granted the court must be satisfied that either the appeal has a reasonable prospect of success or there is some other reason in the interest of justice that the appeal should be heard.

7.Given the limited scope of the appeal and given that questions of costs and interest are matters within the discretion of the court the appeal was dismissed primarily on the basis that the Master had exercised her discretion judicially and properly.

8.However, in spite of the narrow ambit of the appeal, the defendant, through its representative Mr Choy, has listed five matters for consideration by the Court of Appeal which, he submits, are important questions of law arising out of this appeal.

9.They are as follows:

“(a) Whether it is contrary to legal principle for a judge not to stand down for having been found and accused aiding and abetting the kidnap and false imprisonment of HK resident carried out by HKSAR with false arrest warrant issued to Police violating Article 28 of Basic Law ‘freedom in violable’;

(b) Whether it is a fraud or oppression for the cover-up of a statutory order/direction issued to defendant to carry out fire improvement works for which it was mistakenly applied by an authority ad for which it had been repeatedly submitted to courts that such order/direction was impossible to be carried out;

(c) Whether it is contrary to legal principles for a Judge to refuse to look behind a previous judgment when fraud has been shown;

(d) Whether it is contrary to legal principles and against public interest for a Judge to turn complete blind eye to administrative and judicial frauds; and

(e) Whether a Judge can make a Charging Order Absolute and Costs Order for obstruction of justice by turning blind eye to prima facie fraud.”

10.Question (a) arises because at the beginning of the appeal on 12 January 2012 Mr Choy had asked me to recuse myself because in December 2004 I had been one of three judges sitting in the Court of Appeal when Mr Bing Choy had appeared as an appellant.  It should first be noted that the appellant in 2004 was Mr Bing Choy, not the defendant in the current proceedings.

11.Moreover, when the application to recuse myself was made, no further information about the 2004 was provided save that it was accepted that it was wholly unrelated to the issues before this court which stemmed from a conviction in the Magistrates’ Court for breaches of Fire Regulations.

12.I declined to recuse myself and continued to hear the appeal.

13.Turning to the remaining four questions, in my judgment, they do not flow from any of the issues dealt with by Master Levy nor do they relate to the issues on appeal before me on 12 January 2012.  Neither the “reasonable prospect of success” test nor the “interest of justice” test is satisfied.  The questions are broad and vague and have little or no nexus with the decision under appeal.

14.When asked what orders he would ask the Court of Appeal to make should he be granted a hearing, Mr Choy answered that he would submit that the Court of Appeal should reverse all the decisions related to this case which go back 10 years.  These include the original Magistrates’ Court verdict, the appeal before the late Gall J, the appeals from that dismissal, Master Levy’s decision, this court’s decision and many interlocutory matters in between.

15.This response, in itself, enhances this court’s view that neither of the above tests has been satisfied.

16.Accordingly, I refuse leave to appeal.

17.Mr W.K. Cheung who appeared on behalf of the plaintiff/respondent, in the event of leave not being granted, submitted an estimate of costs in support of a gross sum assessment.

18.I award costs in the plaintiff’s favour in the sum of $15,300.

Mr W.K. Cheung of Messrs Lo & Lo, for the plaintiff

The defendant appeared in person, present