Iu Po Cheung v. The Commissioner for Census and Statistics and Another

CACV 87/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 2013

(ON APPEAL FROM HCA NO. 1120 OF 2012)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.For the past 11 years, the Plaintiff has been litigating with the Commissioner for Census and Statistics [“the Commissioner”] in respect of his appraisal reports. He was a Census and Survey Officer working in the Census and Statistics Department until he retired by way of early retirement in November 2004. He alleged that his superior officers had amended his appraisal reports to his detriment causing him to lose the opportunity of being considered fairly for promotion. Since 2004, he has commenced three different actions in the High Court to seek redress, one after another. This appeal is in respect of the striking out of his last action, HCA 1120 of 2012. Before we consider the present action, we should give a short account of the two previous actions[1].

2.The first action brought by the Plaintiff against the Commissioner in respect of the allegedly unauthorised amendments of his appraisal reports was HCA 2619 of 2004.  The Commissioner applied to strike out the claim and it was heard by Master Lung (as he then was) on 10 March 2006.  The Plaintiff was then represented by counsel.  Counsel acknowledged there were defects in the statement of claim.  However, he submitted that the defendant should ask for particulars instead of having the claim struck out. Counsel also applied to amend the statement of claim to plead malice.  It appears that counsel did not provide particulars or put forward a draft amendment before the court. 

3.Master Lung struck out the claim because though the Plaintiff alleged the Commissioner to be in breach of contract, there was no plea that the superior officers could not amend the appraisal reports without his prior knowledge.  The master was also of the view that a letter written by the Plaintiff to the Secretary for Civil Service on 12 June 1997 suggested otherwise.  He also accepted the submission of the defence that in view of the many factors being involved in a promotion exercise, it was impossible for the Plaintiff to establish that he would be promoted if the appraisal reports had not been amended.  The master considered that if the superior officers had the power to amend the reports based on their true reflection of the Plaintiff’s performance, there could not be any claim.  He also refused the application for amending the claim by adding a plea of malice as it would be a different action altogether.  He dismissed the action.

4.Thus, in essence, the master struck out the claim due to the defects in the Plaintiff’s own pleadings without examining the merits of the claim by reference to the evidence of the Commissioner.

5.The Plaintiff appealed against that decision. However, when the appeal came before Burrell J on 7 June 2006, his counsel informed the court that the Plaintiff would withdraw the appeal as the Plaintiff would file a fresh action. 

6.The second action was HCA 753 of 2007.  Again the Commissioner applied to have the action struck out.  The matter was heard by Master Yu on 1 February 2008.  It was accepted by counsel for the Plaintiff that there was no right to promotion.  The focus was on the loss of a fair opportunity to be considered for promotion due to the mishandling of the appraisal of the Plaintiff.  After hearing submissions, the master considered at some length the pleadings in respect of the four heads of claim advanced by the Plaintiff.  First, in respect of the breach of contract claim, the master found the pleading to be deficient in that there was no plea that the relevant CSR directions and regulations were impliedly incorporated into the employment contract of the Plaintiff.  He also found difficulty in having such an implied term in light of the nature of those CSR directions and regulations.  Second, in respect of the claim based on breach of statutory duty, the master observed that the pleading of the Plaintiff failed to identify the relevant statute and the relevant duty.   Third, in respect of the claim based on misfeasance in public office, the pleadings were defective in that it did not plead the material facts supporting a claim of bad faith, supporting the allegation of abuse of power and supporting a plea of the Defendant’s knowledge as to injury. Further, counsel could not pinpoint why the Commissioner should be personally liable for such a claim and no particulars were given regarding the responsible officers.  In that regard, Master Yu took account of the history of the matter and the absence of any viable amendment placed before him.  Fourth, in respect of the claim of negligence, the master regarded it as a subsidiary claim to the misfeasance or the contractual claims.  On the face of the pleadings, the master read it as a claim for loss of promotion as opposed to the loss of a fair chance to be considered for promotion.  As regards the former, the master decided that it was not viable in light of Wong Ho Ching v Director of Food and Environment Hygiene [2003] 4 HKC 422.  The master struck out the statement of claim and dismissed the action.

7.The Plaintiff appealed and the appeal was heard by A Cheung J (as he then was) on 10 June 2008.  There was a late application for amendment by the Plaintiff to plead a cause of action based on misfeasance in public office.  The learned judge refused to grant leave for the amendment as the proposed amendment did not contain material facts or particulars to support the very serious allegations advanced by the Plaintiff.  In respect of the appeal, the judge regarded the Plaintiff had sued the wrong person because the Commissioner was not his employer.  Counsel for the Plaintiff then chose not to make further submissions which the judge took as the abandonment of the appeal.  The judge further observed that the master gave good reasons and came to the correct decision in striking out the Plaintiff’s claim.

8.The Plaintiff further appealed to the Court of Appeal in CACV 240 of 2008.  That appeal was heard on 7 May 2009.  The Plaintiff appeared in person.  The appeal was dismissed on 13 May 2009.  There was an application by the Plaintiff for leave to file a further affidavit.  That application was refused.  The court also refused to entertain the Plaintiff’s request to join further parties to the action as the Plaintiff did not produce any draft of the proposed amendments to justify the proposed joinder.  The court found the appraisal reports to be at the heart of the claims and the allegations of the Plaintiff were the same as those fully ventilated before Master Lung in the first action.  The only “new” matter was the bald allegation of malice which did not arise from any new information obtained by the Plaintiff after 2004.  The court held that the Plaintiff’s claim in the second action was an abuse of process by applying the principle in Yat Tung Investment Ltd v Dao Heng Bank Ltd (1973-76) HKC 194.  The appeal was dismissed with costs.

9.The Plaintiff applied for leave to appeal to the Court of Final Appeal.  The Court of Appeal refused to grant leave on 23 November 2010.  His further application to the Court of Final Appeal was dismissed by the Appeal Committee on 19 December 2011 under Rule 7(2) of the Hong Kong Court of Final Appeal Rules on the ground that it discloses no reasonable grounds for leave to appeal.

10.The above history of the second action shows that again the Plaintiff’s action was dismissed not by reference to the evidence of the Commissioner but by reason of the deficiencies in his own pleaded case and the failure on his part (and his counsel) to put forward any viable pleading to support his claims notwithstanding the identification of such deficiencies in earlier judgments.

11.The Plaintiff issued the writ in the present action on 28 June 2012. He filed a Statement of Claim at the same time.  The Statement of Claim was prepared by the Plaintiff himself, partly written in Chinese and partly in English.  In the Chinese part, he advanced many allegations of illegal and criminal conduct against the Commissioner.  This being a civil action, the court is not concerned with prosecution in respect of criminal conduct.  Within the confines of this action, the court is only concerned with disputes for which the Plaintiff could seek civil remedies against the Commissioner and the Secretary for Justice (the Plaintiff joined the Secretary as a co-defendant in this action). 

12.As appears in the English part of the Statement of Claim, it is quite clear that the substance of the Plaintiff’s claim is still his grievances in respect of the appraisal reports and the alleged failure on the part of the Commissioner to consider his case for promotion due to “adverse and unbalanced alterations and additions” to his appraisal reports.  Thus he pleaded in paragraph 2 in the English part of the Statement of Claim:

“  2)  The P was employed in the Department in July 1979 as an Assistant Census and Survey Officer and was promoted to the rank of Census and Survey Officer (“CSO”) from 1 January 1985 onwards.  He remained at that rank until he applied for early retirement in January 2004 apparently on medical advice (under serious grievance and stress) and he retired from Government on 18 November 2004 at the age of 51.  Annex A refers

a)  The Brief Summary of the P’s case

1.  The P lodged complaints against the D for improper operated the Promotion Policy in the department.  See: Annex Fa & F3 line 15-17 The D took revenge on the P by making adverse & unbalanced adjustments and assessments on the P’s appraisal reports from 1985 to 2001 behind the P’s back and without informing the P before May 2003.

2.  The P did not hide up all the incidents of fraud, such as NOT making false statistical data to the public & enjoying the atmosphere of slackness.  See : Annex B & C (The 1^st Para)

3.  The DDS (Personnel) told the P that the D picked up the P’s file before the convening of the 1994 SCSO Promotion Board whence no Privacy Data Ordinance in Hong Kong.

4.  All those adverse & unbalanced alterations and additions were made in the P’s appraisal reports only disclosed to the P from May 2003 to April 2004, thus making the P extremely distress upon his discovery of the systematic and prolonged improper & unbalanced amendments and additions to his disadvantages, being made to the originally assessed appraisal reports by his superiors during the prevailing appraisal interviews.  See: Annex G or G6-7

5.  The D not only damaged the career prospect of the P but also forced the P early retired by all possible and devious office politic means.  See: Annex A, F, H & I

6.  The P sued the D, the D filed sizeable amount of false information to the courts by all means damaged the appeal of the P recklessly.  See: Annex D, E & J

7.  The constant culpable misconduct & the Tort-Misfeasance in Public Office caused the P suffered from extreme stress, mental cruelty & sickness.

8.  The misusing power conferred upon him (the Ds) by virtue of his title or position.  That is the element of the Culpable Misconduct & The Misfeasance in Public Office.

b)  After 6 years counting from 1.1.1985 (ie. 1.1.1991), the P was entitled to promotion to the rank of SCSO – counting from the year 1988.  Selection for promotion should be made on the basis of staff reports and recommendations of supervisors.

At all material times:-

1.  The P being a civil servant was governed by the CSRs; the P shall refer to the Offer Letter of Employment dated 12.6.1979 (See: Annex A1) for reference in regard to the terms of appointment and conditions of service governing both the P and the D.

2.  All such terms of appointment and conditions of service were legally and officially binding upon both the P and the D; they had formed employment relationship regulated by statutory powers.  See: Annex J9

3.  Further or alternative to hereinabove, the P alleged that the Ds at all material times owned a duty of care to the P by duly & properly following and observing all such relevant CSRs, regulations and instructions regarding the appraisal and promotion of the P.  The Ds breach of such duty.

c)  Litigation of the P

1.  The Defendants are and were the heads for the departments engaging themselves in the management of all categories of subordinates in the departments (including the P).

2.  The defendants are and were vicariously liable to the acts and/or conducts of the subordinates of the departments.

3.  The P sued the D since 2004 for the D contravention all the relevant CSRs, departmental regulations and instructions that damaged the P’s career prospect till his dealth, but the Ds struck out the P’s case by perjury, false statutory declarations, contradictory statements on oath, using false affidavits, fraud, evasion of liability by deception & suppression of documents with the collaboration of his legal adviser, the DOJ.

4.  The 2^nd defendant represents the Government of HKSAR at all material times owned a duty of care to the P by duly, properly & justly handling with the P’s litigation, but unfairly and unjustly.”

See also paragraphs 3(b) (1), 6. 

13.At paragraph 8, the Plaintiff pleaded his causes of action as follows:

“ 8. The causes of action against the defendants are:

1) The Ds’ bad faith, abuse of power conferred, negligence, failed to do some acts, and subjective intention to injure Iu’s appeal recklessly, dishonestly, & maliciously. The Ds committed Culpable Misconducts by acts of omission that is neglecting or failing to do some act which the duties of the Ds’ require to do. It may also come about through acts of commission, such as misusing the power conferred upon them by virtue of their titles or positions. Those are the elements of Tort – The Misfeasance in Publice Office/Misconduct in Public Office.

2) The Ds breach of the relevant in or before 1994 departmental appraisal instructions, statutory powers (CSRs 109(1), 232(1), & 232(2) in or before 1994 version) and the present, employment relationship regulated by statutory powers (A1) & (J3) 14-091 miscellaneous torts, misfeasance in public office {(J9) 14-115 Contract and public sector employment}, culpably misconducts and law stated below.

…

3) The defendants breached/committed the ordinances/ regulations/instructions stated in this document & related # 1 to 35 of the List of Authorities. The Secretary for Justice/The Commissioner is/was variously liable for the conducts of his/their subordinates.

4) The defendants cheated the courts recklessly, dishonestly and maliciously with an intention to damage the appeal/litigation of the plaintiff.

5) The P obtained Fresh Evidence in or after 2007 because the Ds using false affidavits E20-21 & (false documents) See: Annex D

6) This case is related to Tort– Misfeasance in Public Office/Misconduct in Public Office. All inconsistent & unbalance alterations made in the P’s 1992 appraisal report that affected the P’s 1994 promotion board exercise because the board considered the past 3 years appraisal reports, those were 91, 92 & 93. The Ds provided false material to the courts in HCA 753/2007 between 2007 and 2010. Detail material facts stated in all the annex.

a) The essence of the tort is a deliberate and dishonest abuse of power by the Ds. The act is done maliciously, that is with the intention of injuring the P, or knowing that the act is ultra vires the powers of the Ds and knowing that the P will probably suffer LOSS, 14-092, See: Annex J No. 5

b) The tort may be committed in respect of the purported exercise of a statutory power. In principle, any exercise of the power amenable to JR should also be remediable in damages, if the necessary elements of malice or knowledge, together with foreseeability and causation, can be established, 14-093. See: Annex J No. 5

c) The exercise of power of the Ds maliciously for the purpose of injuring the P, or knowing that the exercise of power was ultra vires was sufficient to found the tort whether the power was public or private, 14-094. See: Annex J No. 5

d) The H.L. held that … whether there was malice … exercise power with the intention of injuring the P. The Ds must have known that the acts could probably harm the P or have been recklessly indifferent as to the consequences of their actions. Ds know that they are acting unlawfully without appreciating that the actions will probably harm the P, 14-096 See : Annex J No. 5

e) The act … have caused the LOSS … the P ought to be able to recover for loss suffered, 14-098. #5 of The List of Authorities. See: Annex J No. 5

7) Senior officers in my department acted with intention and acted unfairly to promote other staff. The consequence was that my lost in the promotion exercises. Since we have proved that the CSR is a subordinate legislation and the procedures specified in the CSR is plain to ensure that the promotion exercise will be conducted in a fair manner. The DOJ protected the Commissioner filed false affidavits to the Courts. This gives me a statutory right and put a statutory duty on the staff concerned as well. So, I may be able to claim a tort for breach of statutory duty as well.

8)  The Defendants cheated (the courts, the government, the public and the P) and breached/committed not only the materials stated in the list of authorities (the relevant CSRs, departmental instructions in or before 1994 version), (Para 8(2) above, Annex E refers), but also Cap 93, Cap 200 and Cap 210 as stated below …

…

By reasons of the matters aforesaid:-

9)  The Ds had wrongfully contravened the employment relationship regulated by statutory powers between the P and the Government as pleaded in this Writ by failing to have duly followed all those relevant CSRs, regulations and instructions concerning the appraisal & promotion of the P for the period from 1985 to 2001.

10) Further or alternatively, the Ds had wrongfully contravened Cap 93 s 9 & 13, Cap 200 s 31, 36, 39 & 40, Cap 210 s 16A, 18B, 19, 22 & 32, Cap 316 s 16 & 19(c), Misconduct in Public Office, Misfeasance in Public Office, Misleading Police Force Ordinance, Contempt of the Courts and No. 1 to 35 of Annex J.

11) Further or alternatively, the Ds were at all material times negligent in duly and properly following the relevant CSRs, regulations, instructions and Ordinances particulars of which have been stated hereinabove and Annex J and or all Annex.

12) Further or alternatively, the aforesaid culpable misconducts or Tort– Misfeasance in Publice Office as pleaded hereinabove and all the Annex were made at the material times by the Ds or their subordinates or their agents with malice, (No Duty of Care to the P & Breach of Duty), calculated to deprive a proper judgment for the P, as untrue information that the Ds submitted to the Courts.

By reason of the matters aforesaid:-

13) The P should have been won the case in or before 2011; and

14) Further or alternatively, the P should have been duly retired in 2008 but not in 2004.

15) Further or alternatively, the P should have been recovered his mental injury or no mental injured upon him since 2003 and upto now.

16) Nonetheless it is and was to the best knowledge of the P that all those CSOs working with the P from 1991 to 1994 (some 10 in the same section and some 20 in the same branch of the Department) had been promoted or granted acting appointment to the rank of SCSO in or before 1994 (other than the P) for the years from 1991 to 1993, irrespective of their relatively poor individual performance and/or efficiency and/or ability and/or qualifications.

17) Since the P was deprived of a fair and proper judgment of being judged by the Courts, he unreasonably owed a sizeable amount of money to the government.

18) The Ds not only cheated the Courts with malice recklessly, but they also mis-used power conferred upon them by virtue of their titles and positions.  They deducted the P’s ¼ pension from July 2011 unreasonably, drastically and recklessly.  The deduction was under coercion.

19) Owing to what are pleaded hereinabove, the P has suffered loss and damages in

(1)  Early retirement

(2)  Unreasonable failure in litigation

Particulars of Loss & Damages are shown in the Schedule as presented in Annex A or such sum as this Honourable Court may award

20) The P is entitled to interest pursuant to Section 48 & 49 of the High Court Ordinance, Cap 4 as the Court may deem fit.  AND the P hereby claims against the Ds for the following:-

i) Damages;   ii) Interests;  iii) Costs.

21) Such further and/or other reliefs as this Honourable Court deems fit. ”

14.The Commissioner and the Secretary applied to have this action struck out by a summons of 23 August 2012.  The summons was heard by Master J Wong on 21 Jan 2013 and he handed down his written decision on 26 February 2013 striking out the statement of claim and dismissing the action.  The master came to that decision because he found in substance the present action was still claims based on the allegations regarding the alterations of the appraisal reports and it infringed the res judicata principle.  He also noted that the Plaintiff could not explain why he could not raise the points which he now raised in the course of the appeals in the second action, and allegations of criminal conduct were not matters which could be litigated in a civil action.  The master also referred to the claims being brought after the time limit in section 4 of the Limitation Ordinance had expired. 

15.The Plaintiff appealed against the decision of the master.  The appeal was heard by Anthony Chan J on 19 March 2013.  On 8 April 2013, the learned judge dismissed his appeal, essentially adopting the reasons of the master.  The judge was of the view that the so-called new grounds of the Plaintiff had no basis and the other allegations against the Commissioner in respect of the affairs of that department were not proper subjects for consideration in this action.  As regards the allegations relating to false evidence, the judge was of the view that they only reflected the disputes between the Plaintiff and the Commissioner on the evidence.  The Plaintiff had had his opportunity to adduce his evidence to refute the evidence of the Commissioner and as the so-called disputes did not have much impact on the earlier striking out of his actions, the judge did not find those matters to be of any avail to the Plaintiff. 

16.We accept the Plaintiff’s submission that there were allegations in the present action which were not raised in the previous actions, viz the allegations of fraud against the Commissioner and the Secretary for Justice in respect of the conduct of the two earlier actions in terms of the materials deployed by the Commissioner (with the Department of Justice conducting his defence as his lawyer) and that the Plaintiff also claimed for loss arising from costs liabilities in those actions (see paragraph 11 in the Chinese parts of the Statement of Claim).  However, the Plaintiff also claimed for losses arising from damages he allegedly suffered as a result of the alterations of the appraisal reports which formed part of his claims in the earlier actions, see Annex a to his Statement of Claim. 

17.In our judgment, the new allegations were collateral attacks in respect of the results in the two earlier actions and by reason of the principle in Hunter v Chief Constable of West Midlands Police [1982] AC 529, the Plaintiff can not advance his claims by way of a new action unless he could establish a case for impugning those judgments.  The principle that a litigant should not be vexed twice applies to cases where the earlier sets of proceedings were concluded other than by way of an adjudication on the merits, see SCF Finance Co Ltd v Masri (No 3) [1987] QB 1028; Khan v Goleccha International Ltd [1980] 1 WLR 1482; Staffordshire County Council v Barber [1996] ICR 379; Lenon v Birmingham City Council [2001] IRLR 826; Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478.  It would be sufficient if a plaintiff misused an earlier opportunity for the issue to be adjudicated upon in the earlier set of proceedings.  Insofar as the opinion of a senior counsel relied upon by the Plaintiff suggested contrary, that was wrong in law.  The Plaintiff is attempting to impugn the outcome of earlier cases by alleging fraud against the Commissioner and the government counsel conducting the defence for the Commissioner. 

18.The relevant principles for considering the Plaintiff’s efforts in that regard can be taken from the speech of Lord Simon in The Ampthill Peerage [1977] AC 547 at p.591 B-H, applied by Le Pichon J in Re Maydwell, ex p WFM Motors Pty Ltd [1999] 3 HKLRD 339 and G Lam J in Zebra Industries Ltd v Wah Tong Paper Products Group Ltd  HCMP 436/2013, 27 October 2014.  For present purposes, they can be summarized as follows:

(a)  As a matter of law, the judgments in the 2 previous actions are binding on the Plaintiff so that he could not bring the same claim again in a third action unless he can bring himself within the exception where the court would set aside the previous judgments on the ground that those judgments were obtained by fraud; and

(b)  In respect of the exception, a party who wishes to impeach a previous judgment must prove that the court was deceived into giving that judgment by means of a false case known by the other party to be false or not believed to be true or made recklessly without any knowledge on the subject.  For present purposes, it should be noted that there are two essential elements:

(i)  The party alleged to have committed the fraud must have the requisite intent to deceive the court.  It is not enough to show that he or she made an inaccurate statement without showing that he or she did not believe in (or was reckless as to) the truth of that statement; and

(ii)  The deception has caused the court to make the impeached judgment. 

(c)  In respect of the first element, the relevant fraud must be alleged with particularity and proved distinctly with cogent evidence commensurate with the seriousness of the allegations.  Bald allegations and suspicions are not enough.  “A person is not permitted merely to allege fraud in the hope of discovering it as the case develops”.[2] 

(d)  A reasonable prospect of establishing such fraud must be shown before the court will go into the merits of the underlying judgments.  “The impugner of a judgment … must adduce evidence of facts discovered since the judgment which show a reasonable probability of such fraud as would invalidate the judgment, before he can call on the person whose judgment he seeks to nullify to make any sort of disclosure.”[3]

19.In the present case, we are not satisfied that the Plaintiff has come anywhere near to showing a reasonable prospect of impugning the judgments in the first two actions.  As discussed above, in the earlier proceedings the courts struck out the Plaintiff’s claims because of the Plaintiff and his lawyers’ failure to plead a proper case.  The courts did not refer to the evidence of the Commissioner.  Hence, irrespective of the accuracies of the statements in the affirmations filed on behalf of the Commissioner and the exhibits produced, the Plaintiff’s claims would still be struck out and his actions dismissed when he could not produce a proper statement of claim to support his claims.  In short, there is no connection between the evidence lodged on behalf of the Commissioner and the outcomes of those proceedings.  Thus, even assuming for a moment there is merit in Plaintiff’s contention that the evidence of the Commissioner were false, it did not cause the courts to make the impeached judgments. 

20.At the oral hearing of this appeal, we repeatedly invited the Plaintiff to address on this point.  However, he was unable to provide us with any satisfactory answer.  The best that he could say was that he only discovered the falsity when he reviewed in 2012 the documents in his possession again.  In this connection, the Plaintiff said he conducted the review in light of some documents he obtained through a personal data request.  Yet, the relevant documents had all along been in his possession and his failure to see the significance of those documents during the course of the earlier proceedings cannot be an excuse.  In any event, they have no bearing on the striking out of his actions which was due to his repeated failures in putting forward a proper case in his own pleadings.  The courts had yet to come to the assessment of the evidence of the Commissioner.

21.Further, his allegations of fraud are demonstrably unsustainable.  The main allegation of fraud was about the use of false documents.  The principal allegation of the Plaintiff (and his main argument in the course of the hearing of the appeal) was in respect of the relevant guidelines for staff assessment.  The Plaintiff claimed that the documents relied upon by the Commissioner in his evidence filed in the earlier actions were false.  He claimed that the relevant guidelines should be the set issued in 1984 instead of the 1995 and 1996 versions.  The Plaintiff said according to his understanding the 1984 version was applicable right up to 2001.  He went as far as suggesting the 1995 and 1996 versions were forged documents. 

22.However, on further probing, the Plaintiff accepted that there was a 1994 version.  Still, he maintained the relevant set of guidelines should be the 1984 version as he was complaining about his appraisal reports prior to 1994. 

23.Further, the Plaintiff also had to accept that in the evidence of the Commissioner, the 1984 version had been disclosed[4]. It was also the evidence of the witness for the Commissioner that the earlier appraisal reports were done in accordance with the 1984 version.  The evidence, as set out at paragraph 6 of the affidavit of Tse Bing-sum Magdelen of 3 July 2007 was that the appraisal reports were administered in accordance with the prevailing guidelines which were amended from time to time.

24.The Plaintiff therefore had to accept (as he did before us) that the question was whether the witness made reference to the relevant set of guidelines instead of whether the 1995 or 1996 versions were false.  He referred to paragraph 14 of the affidavit of 3 July 2007 (where Tse referred to the 1996 version) as making reference to the wrong version.  It is quite plain to us that the Plaintiff was taking things out of context.  Under that section of the affidavit, Tse was referring to the practice starting from June 1996 and it is neither surprising nor wrong for her to refer to the 1996 version in such context.  There is absolutely no question of Tse giving false evidence in that paragraph.

25.The Plaintiff also complained about paragraph 15 of the second affidavit of Tse Bing-sum Magdelen of 28 Sept 2007 where reference was again made to the 1995 version.  That affidavit was filed in reply to the affidavit of the Plaintiff of 31 August 2007.  That affidavit of the Plaintiff was not in the bundles before us.  Based on what had been said in paragraphs 7 to 17, that section of the second affidavit was apparently dealing with the alterations or adjustments in the appraisal reports of 1985, 1990 and 1992.  As such the Plaintiff does have a valid point that the reference at paragraph 15 of the second affidavit to the 1995 version of the guideline was irrelevant. However, it does not mean Tse was guilty of perjury or otherwise deceiving the court.  Tse made it clear that she was referring to the 1995 version.  It was a matter for submissions whether the point she made in that paragraph was relevant and the Plaintiff and his counsel could have advanced his case to the court that the 1995 version was not relevant.  This assertion does not come anywhere near to the kind of fraud which could impugn the earlier judgments.

26.The major disagreement between the Plaintiff and the Commissioner was on the question whether some of the alterations in his appraisal reports were made by the reporting officer before he submitted the same to the countersigning officers.  The Plaintiff did not accept that the alterations were made at that stage and he therefore regarded any evidence put forward by the Commissioner to support the Commissioner’s case as perjury or fraudulent.  We must point out that the mere disagreement on the part of a litigant with the evidence of the other party and the production of self-serving evidence by the Plaintiff cannot be regarded as cogent evidence commensurate with the very serious allegations of fraud and perjury against the Commissioner and the Secretary. 

27.On the whole, we agree with A Chan J’s conclusion that the allegations of fraud and perjury were, on final analysis, no more than the Plaintiff’s own subjective disagreement with the evidence of the Commissioner.  There is no substance in the allegations of fraud of perjury.

28.We do not think the purported new evidence of the Plaintiff takes his case further and we dismiss his application to file the new evidence for the purpose of this appeal.

29.Hence, the Plaintiff’s so-called new claims based on the alleged wrongs in respect of the conduct of the 2 previous actions do not disclose any reasonable cause of action and are frivolous and vexatious. 

30.In respect of the old claims based on the allegations regarding the alterations of the appraisal reports, since we have concluded that the Plaintiff cannot satisfy the test in The Ampthill Peerage, supra, there is no reason why he should not be bound by the outcome in the two earlier actions. 

31.Bearing in mind that his pleadings were struck out in the previous actions instead of having his claims being adjudicated on its merits, we shall apply the modern liberal approach in assessing whether the Plaintiff should be permitted to advance his claims as laid down in Johnson v Gore Wood [2002] 2 AC 1; Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 and Virgin Atlantic Airways v Zodiac Seats UK Ltd [2014] AC 160.  Even so, it is clear to us that it would be an abuse of process to allow the Plaintiff to litigate these claims in a third attempt.  As the master observed, the Plaintiff was well outside the limitation period when he commenced this action in 2012 as even on his own case he was aware of these alterations in 2004.  For the reasons we have given above, he could not rely on any fraud or concealment to extend the relevant limitation period in respect of the old claims.  Further, the Plaintiff had been given more than enough chances to put his pleadings in order and he (and his counsel) had not been able to do so on no less than 5 occasions (counting the number of times that he had failed in his attempts to persuade judges at different levels that his claims were properly pleaded).  As observed by the master, there is no reasonable explanation from the Plaintiff as to why he did not place a proper claim before the court in the past.  The so-called fresh evidence did not take his case on the alterations of the appraisal reports any further.  In our view, the current version of the Statement of Claim still suffers from some of the defects pinpointed by Master Lung and Master Yu.  It is not clear as to the basis on which the Plaintiff alleges the Commissioner to be responsible for alterations of the appraisal reports (as it could not be alleged that the Commissioner did so personally): is it the Plaintiff’s case that the Commissioner instructed the relevant officer to make the alterations and if so what is the factual basis for inferring that such instruction had been given? (see paragraph 8 in the Chinese part of the Statement of Claim).  It is also not clear how the Plaintiff could establish that but for the alleged alterations, he would have been promoted after he had been employed for 6 years (see paragraph 2(b) in the English part of the Statement of Claim).  The Plaintiff did not plead any facts to show that the officers doing the appraisals could not have bona fide made the assessments in the reports as altered.  There is also a large amount of irrelevancies in the Statement of Claim which makes it very difficult to pinpoint the basis of the Plaintiff’s real claim.   

32.For these reasons, we are of the view that the master and the judge were correct in striking out the Plaintiff’s statement of claim and dismissing his action.  The appeal is dismissed with costs accordingly.  We also order the Plaintiff to pay the Defendant’s costs in the appeal, such costs are to be taxed if not agreed.

33.Further, in view of the repeated unsuccessful attempts by the Plaintiff to pursue the same claims, and in view of the diversion of the limited resources of the court to deal with these unmeritorious claims, we remit the matter to a judge in the Court of First Instance to consider whether a restrictive proceedings order should be made against the Plaintiff in respect of the same or similar subject matter.  Directions for processing that application shall be given by that judge.

The Plaintiff appeared in person

Mr Eric Ko of the Department of Justice, for the defendants