Yuen Oi Yee Lisa v. Charoen Sirivadhanabhakdi and Others

DCCJ 1914/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1914 OF 2015

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JUDGMENT

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1.This judgment primarily deals with the application of D2, D5, D7 and D8 (“the applying defendants”) to strike out the claim herein against them and for a restrictive proceedings order (“RPO”) against the plaintiff (“Madam Yuen”).

2.As in other cases involving Madam Yuen, the application has prompted many more interlocutory applications from her.

A. Background

3.This case emanates from the dispute between Madam Yuen’s husband Lee Chick Choi (“Mr Lee”) and his former employer Best Spirits Company Limited (ie D8) over the termination of Mr Lee’s employment in 2010.  The factual background has been succinctly summarised in the decision of Deputy High Court Judge Yee dated 1 December 2014 in HCA 2045/2012 (“the CFI decision”):

“7. Mr Lee was an employee of the Company from June 2006 to late 2010 as its General Manager. Mr Lee contends that the employment was terminated upon his resignation on 3 December 2010 whilst the Company contends that Mr Lee was dismissed due to his misconduct in November 2010. This debate was resolved in Mr Lee’s claim in the Labour Tribunal No. LBTC 588/2011 on 28 October 2011 in the favour of the Company among other matters.

8. Mr Lee decided to take his claim to the High Court for an appeal. However, Mimmie Chan J dismissed his application for leave to appeal on 6 June 2013.

9. In the course of the proceedings in the Labour Tribunal, it transpired that in one of the witness statements, the Company made use of some personal data of his wife stored in the lap-top computer of Mr Lee handed over to the Company upon the termination of the employment. The lap-top computer was assigned to Mr Lee for his official use during his employment with the Company. It was protected by a password only known to Mr Lee.

10. The wife of Mr Lee, Madam Yuen Oi Yee Lisa, lodged a complaint with the Office of the Privacy Commissioner for Personal Data, Hong Kong (“the PCPD Office”). By a letter dated 16 May 2013 (“the Letter”), the PCPD Office informed Madam Yuen of the result of its investigation of her complaint. Mr Lee’s new claim is based on the Letter.

11. In the Letter, the PCPD Office explained that while they rejected all other complaints of Madam Yuen, they did consider that the Company had failed to take all reasonably practicable steps to make known to its staff its policy in relation to accessing, checking, deleting and backing up information (including personal data) held at the computers assigned to them for official use, upon their cessation of employment. The PCPD Office hence concluded that the Company contravened the requirements of DPP5 (Data Protection Principle 5). The said provision provides that a data user shall take all practicable steps to ensure that its policies and practices in relation to the kind of personal data held and its purposes of use should be made generally available.

12. The PCPD Office further considered that the Company had already in the course of their investigation revised their staff handbook and drawn to their staff’s attention to its relevant policies and practices. In light of their remedial work, the PCPD Office decided not to serve an enforcement notice on the Company.

13. Lastly, the PCPD Office reminded Madam Yuen of section 66 of the Ordinance [ie Personal Data (Privacy) Ordinance, Cap 486], which provides that an individual who suffers damage (including injury to feelings) by reason of a contravention of a requirement under the Ordinance by a data user shall be entitled to compensation from that data user for that damage.”

4.In 2012, Mr Lee commenced HCA 2045/2012 in the Court of First Instance against D8 to claim damages under s 66 of the Personal Data (Privacy) Ordinance, Cap 486 (“the PDPO”).  His claim, as recorded by the Deputy Judge in §14 of the CFI decision, was that:

“… he has suffered financial loss in the sum of HK$14.475 million arising from the Company’s breach of DPP5. His allegation in his proposed/draft Statement of Claim is that the breach led to the rejection of Mr Lee’s resignation and, in its place, his dismissal due to alleged misconduct. As a result, he has been unable to find a comparable job in a high level managerial position and has been suffering a loss of income in the sum of HK$89,000 per month for the rest of his life.”

5.Upon D8’s application in HCA 2045/2012, the Deputy Judge struck out Mr Lee’s claim on two grounds.  First, the claim was beyond the jurisdiction of the Court of First Instance as section 66(5) of the PDPO mandates “Proceedings brought by an individual in reliance on subsection (1) are to be brought in the District Court ...”. (see §§16-17 of the CFI decision)

6.Secondly, the Deputy Judge held that:

“18. Jurisdiction issue aside, I fail to see any causal link between the alleged breach of DPP5 on the one hand and the alleged income loss sustained on the other. The alleged breach had nothing to do with the dismissal of Mr Lee to start with. It is also far-fetched to attribute his inability to secure a similar job to his dismissal by the Company. As the proposed/draft Statement of Claim now stands, I am convinced that it would also be doomed to failure.”

7.Mr Lee was late in lodging an appeal.  When he applied for extension of time to do so, the Court of Appeal dismissed his application and held that:

“25. We find the judge’s reasoning in §18 of his judgment unassailable. He is obviously right there is no conceivable causal link between the defendant’s breach of DPP5 and the events which led to the defendant maintaining the stance that the plaintiff was dismissed for misconduct. He is right to say that it is far-fetched to attribute the plaintiff’s failure to secure a similar job in future to his dismissal by the defendant. Besides, the Labour Tribunal had decided the plaintiff was dismissed for valid reasons because it was dissatisfied with the plaintiff’s performance and his rude outburst during a meeting on 4 November 2010. The plaintiff cannot re-litigate an issue already decided against him.

26. The plaintiff contended that the judge should not have formed his view on the draft pleading without giving him an opportunity to substantiate his claim with proofs and evidence. We do not think there is any error in the judge’s approach, as it is clear beyond peradventure that the claim for damages for loss of earnings for the rest of the plaintiff’s working life is unsustainable at law as being far too remote.”[1]

8.It is therefore clear from the CFI decision as confirmed by the Court of Appeal that:

(a) The Labour Tribunal has rejected Mr Lee’s case and found that he was dismissed by D8 for valid reasons (“the LT decision”).  Mr Lee may not re-litigate the same issue again.

(b) There is no causal link between D8’s breach of DPP5 and Mr Lee’s dismissal.

(c) It is far-fetched for Mr Lee to attribute his failure to secure a similar job in future to his dismissal.  His claim for damages for loss of earnings for the rest of his working life is unsustainable at law as being far too remote.

B. This action

9.According to the indorsement on the writ, Madam Yuen is claiming in this action “HK$16,000,000.00 under Section 66 of Personal Data (Privacy) Ordinance which is a precedent case in HKSAR.”

10.She has pleaded in the statement of claim (“the SOC”) that:

“20. I was a full time housewife and had wholly relied on my husband’s income in order to maintain my standard of living since March 2003.

21. Since the defendants had instructed, aided and abetted BS [ie D8 in this action] to have a turnover of my husband’s resignation being accepted by them on 4^th November, 2010 to an instant dismissal due to misconduct after having stolen my personal data from my husband’s lap top left in BS’s conference room on 4^th November, 2010, my husband dared not to approach the head hunters or apply for jobs with comparable position by having a monthly salary of HK$89,000.00 anymore. It was because no potential employers in town would offer a top position to my husband if he was not resigned on his accord or his resignation had never been accepted by BS which was not true.

22. My standard of living has been seriously deteriorated due to my husband’s loss of his comparable income. My husband and I were/are forced to rely on our children’s income due to my husband’s loss of comparable income since 4^th November, 2010.

23. I am therefore entitled to claim my husband’s loss of income and other benefits until his 65 years old leading to my deteriorated standard of living and injury to feelings under Section 66 of PDPO which is a precedent case in HKSAR.”

11.She accuses:

(a) D3 of lying at the trial of LBTC 588/2011. (§5 of the SOC)

(b) D4 of including her personal data in D4’s witness statement filed in LBTC 588/2011. (§4 of the SOC)

(c) D5 of stealing her personal data from her husband’s laptop computer which was left in D8’s conference room on 4 November 2010. (§4 of the SOC)

(d) Philip Au Yeung (“PAY”) of lying in his witness statement filed in LBTC 588/2011. (§18 of the SOC)

(e) Hobson & Ma (“H&M”), a firm of solicitors, of instructing, aiding and abetting D3, D4 and PAY to lie in their witness statements filed in LBTC 588/2011. (§§16 & 19 of the SOC)

12.She alleges that because D3, D4 and D5 have left the employment of D8, “I have therefore my absolute right to sue their employers and bosses all over the world even their cats and dogs at home leading to my damage and injury to feelings suffered under Section 66 of PDPO which is a precedent case in HKSAR.” (§12 of the SOC) There is otherwise no pleading respecting D1 and D2.  She identifies D6 as the holding company of D7 which, in turn, holds D8.  She also identifies Billy Ma (“BM”) and Wong Chi Leung (“WCL”) as the partners of H&M. 

C. The proceedings so far in this action

13.So far, the applying defendants (all resident in Hong Kong) have given notice of intention to defend.  Madam Yuen is yet to obtain leave under Order 11 rule 1 of the Rules of the District Court, Cap 336H (“the RDC”) to serve the writ out of the jurisdiction on D1, D3, D4 and D6.

14.The applying defendants applied in June 2015 to strike out the claim and for a RPO against Madam Yuen (“the defendants’ summons”).  Since then, Madam Yuen has taken out 10 interlocutory applications within a time span of about 4 months.

15.By a summons dated 6 July 2015 (“Yuen’s 1^st summons”), Madam Yuen applied to have this action either transferred to the High Court or adjourned sine die pending mediation.

16.At the hearing on 8 July 2015, I adjourned the defendants’ summons and Yuen’s 1^st summons for argument and gave directions for the filing of evidence (if any).

17.By a summons dated 24 July 2015 (“Yuen’s 2^nd summons”), Madam Yuen applied to add BM, WCL and H&M as defendants in this action and to withdraw her 1^st summons. 

18.At the hearing on 28 July 2015, I granted leave to Madam Yuen to withdraw her 1^st summons with costs to the applying defendants.  I also set down the joinder application in Yuen’s 2^nd summons for argument together with the defendants’ summons, abrogated my previous directions and gave consequential directions afresh.

19.By a summons dated 23 September 2015 (“Yuen’s 3^rd summons”), Madam Yuen applied to add PAY as a defendant in this action “pending leave to RPO to be granted…”.  By another summons dated 26 September 2015 (“Yuen’s 4^th summons”), Madam Yuen repeated her application in her 3^rd summons.

20.At the hearing on 5 October 2015, I granted leave to Madam Yuen to withdraw her 4^th summons with costs to PAY.  In pursuance of the RPO granted by Lam J (as he then was),[2] I referred Yuen’s 3^rd summons to the Court of First Instance for a decision as to whether the intended proceedings should be permitted to continue.

21.By a summons dated 6 October 2015 (“Yuen’s 5^th summons”), Madam Yuen applied to have the hearing bundles for the forthcoming argument delivered to her home address.  One day later, Madam Yuen took out another summons (“Yuen’s 6^th summons”) to amend her 5^th summons so that the hearing bundles would be delivered to her in court. 

22.Madam Yuen took out yet another summons on 7 October 2015 (“Yuen’s 7^th summons”) for leave to file a further affirmation to oppose the defendants’ summons.

23.At the hearing on 9 October 2015, I granted leave to Madam Yuen to amend her 5^th summons.  Upon her election, I allowed her to collect the hearing bundles already lodged in court by the applying defendants but ordered her to pay costs. [3]  By then, the Court of First Instance had granted RPO leave for Madam Yuen to pursue her intended proceedings against PAY.  I therefore abrogated the referral and set down Yuen’s 3^rd summons for argument together with the defendants’ summons and the joinder application in Yuen’s 2^nd summons.  I also granted leave for her to adduce the further affirmation in opposition.

24.By a summons dated 19 October 2015 (“Yuen’s 8^th summons”), Madam Yuen applied to file a further affirmation in support of Yuen’s 2^nd summons and Yuen’s 3^rd summons.

25.By a second summons dated 19 October 2015 (“Yuen’s 9^th summons), Madam Yuen sought an order for “leave to my absence for hearing to be held on 23^rd October, 2015.”

26.By an affirmation filed on 22 October 2015, Madam Yuen informed the court of her legal aid application and applied for either a legal aid stay or dismissal of the defendants’ summons (“Yuen’s 10^th application”).

27.So at the hearing on 23 October 2015, I needed to deal with:

(a) Yuen’s 9^th summons relating to her intended absence at the hearing;

(b) Yuen’s 10^th application in relation to her legal aid application;

(c) Yuen’s 8^th summons to adduce further evidence;

(d) the defendants’ summons for striking out and RPO; and

(e) Yuen’s 2^nd and 3^rd summonses to join additional defendants.

I shall discuss the applications in that order.

D. Yuen’s 9^th summons relating to her intended absence at the hearing

28.Despite her summons, Madam Yuen turned up at the hearing.  I granted her leave to withdraw the summons.  For the avoidance of doubt, her affirmation filed on 19 October 2015 in support of that summons should be disregarded for the purpose of the remaining applications.

E. Yuen’s 10^th application in relation to her legal aid application

29.Madam Yuen applied for legal aid on the day before the hearing.  By Yuen’s 10^th application, she applied for a legal aid stay or dismissal of the defendants’ summons.  The applying defendants, BM, WCL, H&M and PAY, who are all represented by Gary Lam, counsel, oppose Yuen’s 10^th application.

30.After hearing both sides, I dismissed Yuen’s 10^th application.

31.To start with, there is no basis to dismiss the defendants’ summons by reason of Madam Yuen’s application for legal aid.

32.Secondly, s 15(4) of the Legal Aid Ordinance, Cap 91, only requires the proceedings to be stayed upon the filing of a memorandum by the Director of Legal Aid to notify the court of a legal aid application.  Madam Yuen applied for legal aid on the day before the hearing and no memorandum has been filed.  So technically, the statutory provision mandating a stay is not engaged.

33.More importantly, the court has the power to lift the statutory stay even if a memorandum has been filed. In Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Limited, unreported, CACV 39/1993, 14 July 1993, the Court of Appeal gave guidance on when a court may lift a legal aid stay.  The Court of Appeal reiterated that the primary function of the courts is to do justice between the parties.  A court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law has to be dealt with by a layman.  However, if the legal aid application is an abuse of the process, then the court should exercise its discretion to lift the stay.

34.Madam Yuen’s application for legal aid came very late.  This action was commenced by her in May 2015 and the applying defendants took out the defendants’ summons promptly in June.  Four hearings had since been held and, all along, Madam Yuen has been acting in person.  There is no indication that she has any difficulty in representing herself.  Quite to the contrary, she has been industrious in taking out interlocutory applications as illustrated in the above chronology.  Mr Lam submits that the legal aid application at the eleventh hour is a delaying tactic to derail the argument.

35.Madam Yuen confesses at the hearing that she has the benefit of legal advice in relation to her other proceedings behind the scene.  When she recently brought up this action with her legal advisers, she was advised to apply for legal aid.  With respect, that does not provide any justification for her late application.

36.One has to balance Madam Yuen’s wish for legal advice with the legitimate expectation of the applying defendants, BM, WCL, H&M and PAY to bring an end to the proceedings or intended proceedings against them.  For that purpose, they have instructed solicitors to prepare their papers, waited for months for this argument to come on and instructed counsel to attend the argument.  Both sides have prepared written submissions and the court has set aside 3 hours to hear the argument.  Allowing a legal aid stay would derail the long awaited argument and cause wastage of time and costs.  This would be against the underlying objectives of the court to ensure that a case is dealt with as expeditiously as is reasonably practicable, to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, to ensure fairness between the parties and to ensure that the resources of the court are distributed fairly. 

37.Furthermore, Madam Yuen has stated in her supporting affirmation that: “the sole reason for me to apply for legal aid is because I ought to seek legal advice of whether I should report the offences/crimes committed by Messrs Hobson & Ma to the Police or not during the civil proceedings of DCCJ 1914/2015 are to be carried on.”  She argues in her supplemental skeleton submissions that H&M have committed an offence by advising PAY not to file an affirmation to oppose Yuen’s 3^rd summons. 

38.Madam Yuen’s claim herein is founded upon a breach of DPP5.  Insofar as she is alleging that H&M have committed any offence in the course of LBTC 588/2011, that has nothing to do with any contravention of the PDPO.  It is also absurd for her to suggest that H&M have committed any offence in advising PAY not to file any affidavit.  The direction I gave on 9 October 2015 was for PAY to file an affidavit in opposition “if so advised” and there was no obligation for him to do so.

39.There is therefore no justification for a legal aid stay and I have pressed on with the remaining argument.  For the avoidance of doubt, I direct that there should be no legal aid stay upon the filing of the memorandum.

F. Yuen’s 8^th summons to adduce further evidence

40.By Yuen’s 8^th summons, Madam Yuen applies to adduce her “Affirmation in opposite of Yuen Oi Yee Lisa” filed on 19 October 2015 notwithstanding my directions dated 9 October 2015 that there should be no further affidavit evidence.  Mr Lam has taken a pragmatic approach after confirming his instructions that there is no evidence in reply and decided not to oppose the application.  I have therefore allowed Madam Yuen to refer to the affirmation in argument.

G. The defendants’ summons for striking out and RPO

G1. Striking out

41.The application is said to be based on Order 18 rule 19 of the RDC and the inherent jurisdiction of the court.

42.Order 18, rule 19(1) provides that:

“The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

43.In his skeleton submissions, Mr Lam makes references to Hong Kong Civil Procedure 2015 and gathers the following general principles:

(a) A court should only strike out a claim in plain and obvious cases.

(b) The court shall take the plaintiff’s evidence as true, unless it is plainly unbelievable or plainly inconsistent with indisputable facts.

(c) A “reasonable cause of action” means a cause of action with some chance of success when only the allegations in the pleading are considered.

(d) A proceeding is “frivolous” when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed.  A proceeding is “vexatious” when it is oppressive and/or lack bona fides.  The expression “frivolous or vexatious” includes proceedings which are an abuse of the process.

(e) “Abuse of court’s process” connotes that the process of the court must be used bona fide and properly and must not be abused.  It is an abuse of process to litigate matters which have or could have been decided in earlier proceedings. The basic rule is that where a matter becomes the subject of an adjudication, the court requires the parties to put forward their whole case for adjudication and will not (except under special circumstances) permit them later to reopen matters which have been brought forward as part of already concluded litigation.

44.Mr Lam accepts that since the applying defendants are also invoking the inherent jurisdiction of the court, affidavit evidence may be referred to in argument in assessing whether there is a reasonable cause of action: see Hong Kong Civil Procedure 2016, §18/19/3 at p 448.

45.Mr Lam has also referred me to China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1 at §§46-61 and Parakou Shipping Pte Ltd v Jinhui Shipping and Transportation Ltd [2011] 2 HKLRD 1 at §§97-103.

46.In China North, the Court of Appeal explained res judicata in this way:

“47. This doctrine, res judicata, is not a rule of evidence but one of substantive law, for which the underlying public policy is the interest of the community in the termination of disputes and the finality of judicial decisions and, further, the need for individuals to be protected from vexatious multiplicity of suits. It arises where a claim has previously been finally determined between the parties, or their privies, by a court of competent jurisdiction and the same issue falls directly in question in subsequent proceedings (cause of action estoppel) or where the issue has been determined by such a court as a necessary step in reaching judgment in case between those parties or their privies (issue estoppel). It has been held too that the doctrine applies only to fundamental issues determined in earlier proceedings and not to collateral or incidental ones: Angle v Minister of National Revenue[1975] 2 SCR 248.

48. The correctness of the final decision is not relevant. It binds the parties until such time as it is set aside on appeal. ‘This rests on the fact that a competent tribunal has jurisdiction to decide wrongly, as well as correctly and if it makes a mistake its decision is binding unless corrected on appeal’.” (my emphasis)

47.The Court elaborated on who may be regarded as privy of the original parties at §81: “The required commonality is a direct interest in the subject matter of the litigation, a parallel or corresponding interest in that subject matter and not simply a financial interest in the result of the action…”

48.In the later case of Parakou, Reyes J referred to the above and commented (at §103) that:

“The Court of Appeal’s dictum is obviously not intended to be a rigorous definition of ‘privity of interest’. I doubt that it is possible to come up with a comprehensive formula of ‘privity of interest’ applicable in all cases. But the Court of Appeal’s dictum provides a convenient working definition…”

49.I accept all these principles.

50.Central to Madam Yuen’s claim is the allegation that the defendants “made a turnover of my husband’s resignation being accepted by them on 4 November, 2010 to an instant dismissal due to misconduct”.  As a result, “my husband dared not to approach the head hunters or apply for jobs with comparable position”.  This, according to her, has led to “my husband’s loss of income and other benefits until his 65 years old leading to my deteriorated standard of living and injury to feelings” and hence her claim.

51.In my view, what Madam Yuen is attempting to do in this action is to rerun Mr Lee’s case in LBTC 588/2011 in the guise of her own claim under s 66 of the PDPO.  Her claim, which is dependent on her husband’s future loss of earnings, is identical to Mr Lee’s claim in HCA 2045/2012.  Thus viewed, Madam Yuen is mounting a collateral attack on the correctness of both the LT decision and the CFI decision.

52.In terms of the LT decision, the Labour Tribunal has rejected Mr Lee’s case and found that D8 had valid reasons to dismiss him.  Deputy High Court Judge Yee has also held in the CFI decision that there is no casual link between D8’s breach of DPP5 and Mr Lee’s dismissal and that his claim for future loss of earnings is far-fetched.  Both decisions have been upheld on appeal and Mr Lee is bound by them. 

53.Given the way Madam Yuen’s claim is presently formulated, she has a direct interest in the outcome of Mr Lee’s claim in both LBTC 588/2011 and HCA 2045/2012 and is bound by the decisions as privy of Mr Lee.

54.I now address the main grounds of opposition of Madam Yuen:

(a) Madam Yuen is hoping that PAY will file an affirmation to “prove to the court that the defendants had indeed instructed, aided and abetted him for his lies made in his witness statements filed and served in LBTC 588/2011 on 1^st April and 3^rd May 2011…”.[4]  She thinks that by not filing any affidavit, Mr Lam’s side is abandoning the argument. 

As I have explained above, there is no obligation on Mr Lam’s side to file any affidavit evidence.  By an email dated 28 July 2015, Mr Lam’s side has made it clear to Madam Yuen that: “The fact that we have no affirmation to file simply means that we do not find it necessary to repeat all those facts/documents which are before the court in an affirmation.  This will not bar us or our Counsel to make such submissions as we deem fit based on the materials available to the court there and then.”[5]

(b) Madam Yuen complains that in seeking to strike out her claim, Mr Lam’s side is being inconsistent with the representation made to the Administrative Appeal Board in July 2013 that they are in full support of the Privacy Commissioner’s decision that there had been a contravention of DPP5 and that anyone suffering damage thereby may have a claim under s 66.[6] 

Deputy High Court Judge Yee has already ruled that there is no casual link between D8’s breach of DPP5 and Mr Lee’s dismissal.  Madam Yuen’s claim, which is couched in terms of Mr Lee’s loss as a result of the alleged unfair dismissal by D8, has nothing to do with any breach of DPP5 on the part of D8.

(c) Madam Yuen has insistently pressed for mediation in this action but the defendants have not acceded to her request.  Her unilateral wish to mediate does not provide any basis to oppose the striking out application.

(d) The fact that Madam Yuen has obtained RPO leave to pursue this action does not mean that she has a valid claim.  In granting RPO leave, the court is merely confirming that her intended claim falls outside the scope of the existing RPO.  There is no endorsement by the court of her intended claim. That much was made clear in a letter dated 16 October 2012 granting her RPO leave in an unrelated matter: “The grant of leave does not mean the court endorse in any way the merit of her claim.”[7]

55.For the above reasons, I agree with Mr Lam that Madam Yuen’s claim as pleaded has no chance of success, is frivolous and vexatious and is an abuse of the process.

56.In the course of argument, I explored with Mr Lam whether there may be more to Madam Yuen’s claim than just a rerun of Mr Lee’s case in LBTC 588/2011 and HCA 2045/2012.

57.In §23 of the SOC, Madam Yuen has pleaded 2 heads of damage, namely, deterioration of her standard of living and injury to her feelings.  According to the prayer, her claim of $16 million includes “HK$14,475,849.00 as my husband’s loss of income from 4^th November 2010 to his age until 65 years old”.  So there are 2 parts to her claim.  The claim for $14 million odd is identical to Mr Lee’s claim in HCA 2045/2012.  She has otherwise not articulated on her claim for injury to feelings.

58.Section 66 of the PDPO provides that:

“(1) Subject to subsection (4), an individual who suffers damage by reason of a contravention-

(a) of a requirement under this Ordinance;

(b) by a data user; and

(c) which relates, whether in whole or in part, to personal data of which that individual is the data subject,

shall be entitled to compensation from that data user for that damage.

(2) For the avoidance of doubt, it is hereby declared that damage referred to in subsection (1) may be or include injury to feelings.

…”

59.For present purposes, Mr Lam does not dispute that based on the investigation result of the Privacy Commissioner (see §§10-13 of the CFI decision):

(a) D8 may be regarded as a data user;

(b) Madam Yuen may be regarded as a data subject; and

(c) there is contravention of DPP5 on the part of D8.

So insofar as Madam Yuen has suffered any injury to feelings by reason of D8’s contravention of DPP5, she may have a claim against D8 under s 66.

60.Mr Lam counters the above by submitting that:

(a) The contravention related to a failure on the part of D8 to take all reasonably practical steps to make known to its staff of its internal policy.  As Madam Yuen was never an employee of D8, the contravention did not concern her.

(b) Of the data items respecting Madam Yuen identified by the Privacy Commissioner, some do not amount to personal data at all, some had been downloaded from the internet and available in the public domain, and the remaining items were irrelevant to the dispute between D8 and Mr Lee before the Labour Tribunal.  Thus, he argues, Madam Yuen could not have suffered any injury to feelings.

61.As I have explained at the hearing, it is ultimately for Madam Yuen to formulate her claim insofar as she is alleging any injury to feelings as a result of the contravention.  At present, her claim as pleaded is dependent on Mr Lee’s loss of earnings.  Apart from mentioning the term “injury to feelings” and suggesting that her claim is over and above Mr Lee’s loss, there is no pleading pertaining to any injury to feelings.

62.It is noted in §18/19/4 (at p 450) of Hong Kong Civil Procedure 2016 that if a statement of claim does not disclose the cause of action relied on, an opportunity to amend may be given even though the formulation of the amendment is not before the court. 

63.I note that Madam Yuen had articulated a different claim against D8 when she applied for RPO leave (see the draft statement of claim placed before the Court of First Instance at Bundle B2/301-309).  There is no application from Madam Yuen to replace the SOC with the draft she used in obtaining RPO leave.  In any event, that draft (upon a closer look) contains objectionable material and will certainly lead to another round of striking out argument.[8] 

64.It was pointed out in Cheung Chui Sou Ying v The Personal Representatives of Cheung Yuk-luen [1981] HKLR 585 at 598I that where the amendments would be far-reaching and so radical as to amount to a totally new pleading which would probably invoke a fresh application to strike out, the correct course is to strike out.  I agree with Mr Lam that the better course to take in the present instance is to strike out Madam Yuen’s action leaving it to her to commence fresh proceedings against D8 in respect of her claim for injury to feelings. 

65.I shall therefore accede to the request of the applying defendants to strike out the proceedings herein against them.

66.Given that the present claim has no chance of success, is frivolous and vexatious and constitutes an abuse of process, I also strike out the proceedings against the other defendants (ie D1, D3, D4 and D6) on my own motion in pursuance of Order 18 rule 19.

G2. RPO

67.I now turn to the application for an RPO against Madam Yuen.

68.The jurisdiction of the courts to grant RPOs is well established: see Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 at §§8 and 66-100.  The justification for an RPO, as explained by Li CJ in Ng Yat Chi, is that: “in view of the past conduct of the party concerned, it is apprehended that that party may commence fresh proceedings which may be abusive.  The extended order [ie RPO] does not bar the institution of any new proceedings.  Its scope is limited to constraining new proceedings which may be abusive.”

69.Since Ng Yat Chi, the Chief Justice has given guidance in terms of Practice Direction 11.3 on how the High Court and the District Court may respond to persistent abuse of process by litigants in civil cases.  §8 in Section C thereof states that:

“In accordance with Ng Yat Chi, an RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the Court’s process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the Court, in circumstances where an RPO would be a proportionate response.”

70.So the present focus should be on: (i) whether Madam Yuen has abused the court’s process; (ii) whether she is likely to continue abusing the court’s process; and (iii) whether an RPO, in the circumstances, would be a proportionate response.

71.The allegations of the applying defendants in support of the application may be summarised under the following headings:

(a) Re-litigation;

(b) Deceitful conduct;

(c) Unfounded claims against the employers of the parties;

(d) Multiplicity of proceedings; and

(e) Harassment by correspondence.

G2a. Re-litigation

72.As discussed above, Madam Yuen is attempting to re-argue in this action Mr Lee’s case which has been rejected by the Court of First Instance and the Labour Tribunal.  Attempts to re-litigate the same matters that have already been determined are one of the hallmark activities of vexatious litigants: per Li CJ at §2 in Ng Yat Chi.

G2b. Deceitful conduct

73.There were attempts to serve the writ out of the jurisdiction on D1, D3, D4 and D6.  According to the affirmation filed by the applying defendants, D1, D3 and D4 (all resident aboard) received parcels purportedly sent by H&M containing cover letters signed by Madam Yuen and the writ and statement of claim of this action.  The parcel addressed to D1 also contained the cover letter and writ marked for the attention of D6.

74.The cover letters (exhibited as Exhibits “LMK-10” and “LMK-11”) are in these terms:

“FR: YUEN OI YEE LISA

RE: DCCJ 1914 OF 2015 – SERVICE MADE TO YOU OF EVEN DATE

As my husband and I do not hear from Messrs Hobson & Man by 5:00 yesterday to vacate the hearing to be held in HCB1128/2015 at 10:00 AM tomorrow on 13^th May, 2015 despite our humble pleas made to them in order to save all parties’ time and costs, I am forced to serve my captioned Writ of Summons and Statement of Claim to all of you today under no choice.

Please acknowledge my service of Writ of Summons made to you within 14 days from today by 26^th May, 2015 and seek your legal advice immediately and urgently.

…

[Signature]

YUEN Oi Yee Lisa

Encl”

75.According to the certificates of postage on these parcels at Exhibit “LMK-9” (or “Address Pack” as it is called), the sender is identified as “Hobson and Ma” and the firm’s address is provided.  There is the mark “LY” in the space provided for “Date and Sender’s Signature”. 

76.H&M has specifically denied sending those parcels: see §10 of the affirmation.  Although the affirmation of the applying defendants stopped short of accusing Madam Yuen as the sender, the evidence strongly suggest so.

77.This is not the first time Madam Yuen is engaged in deceitful conduct.  In ESCC 5404/2008, she was convicted of one count of “Forgery” contrary to s 71 of the Crimes Ordinance, Cap 200 and was sentenced to 3 months’ imprisonment.  It was alleged in that case that she had made a false instrument (namely, the writ of summons in HCA 189/2008) by purporting to sign for one Anthony Boulton without authority.  Her conviction was upheld by the High Court. [9]  In dismissing her appeal, D Pang J (as he then was) specifically warned her that:

“16. Section 69(a)(i) of the Crimes Ordinance provides that ‘an instrument is false if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form’.

17. On the basis of this provision alone, one cannot sign a document on behalf of another person without giving clear indication of this fact. Otherwise, it is no different from misleading other people into believing that the document in question was made personally by the person whose signature appears on it. That means the offence of Forgery has been committed. This is the clearest and most straightforward interpretation arrived at from the wording of the provision.”

78.At the hearing before me, I warned Madam Yuen of her right of silence and right against self-incrimination before she attempted to deal with the allegation.  She admitted to have signed the certificates and refused to explain further.  She accused me of bias. 

79.Madam Yuen’s admission confirms the suspicion that she was the sender of those parcels.  Her attempt to serve the writ out of the jurisdiction without leave of the court is in breach of Order 11 rule 1 of the RDC.  She might even have committed an offence. 

80.What’s more, Madam Yuen has put forward a claim which is different from the one she is allowed to pursue under the existing RPO.  She is required to enclose “a copy of the draft document by which the fresh proceedings are intended to be commenced” when applying for RPO leave.[10]  The draft statement of claim she used in obtaining the RPO leave (at Bundle B2/304-307) is different from the SOC she filed herein.  This is another example of her deceitful conduct in these proceedings.

G2c. Unfounded claims against the employers of the parties

81.Madam Yuen asserts in §12 of the SOC that she has the “absolute right to sue their [ie D3, D4 and D5’s] employers and bosses all over the world even their cats and dogs at home”.  By D3, D4 and D5’s “employers and bosses”, she should be referring to D1 and D2 as there is otherwise no pleading respecting them.

82.Similarly, Madam Yuen is claiming against D6 and D7 apparently on the basis that they are the holding companies behind D8.[11]

83.Even if she considers that D3, D4, D5 and D8 have somehow wronged her, there is no basis for her to pursue against their employers/bosses or the holding companies/owners behind.  The only logical explanation for her action is her malicious intention to cause damage to her adversaries.

G2d. Multiplicity of proceedings

84.Madam Yuen has commenced HCA 1506/2015 and DCCJ 1915/2015 against BM, WCL and H&M.  According to the indorsements on those writs, Madam Yuen’s claims are for “HK$16,000,000.00 under Section 66 of Personal Data (Privacy) Ordinance which is a precedent case in HKSAR”.  This is identical to the indorsement in this action.

85.Madam Yuen accepts at the hearing that there is a duplication of claim and volunteers to discontinue HCA 1506/2015 and DCCJ 1915/2015 if she is allowed to pursue against BM, WCL and H&M in this action.

86.It is an abuse of process to commence multiple proceedings for the same claim.

G2e. Harassment by correspondence

87.It is clear from the evidence before me that Madam Yuen has been bombarding the defendants, the intended parties and other unrelated people with letters and emails on the pretext of this action.  Some of these communications are quite abusive.  For example:

(a) She wrote to D1 and D2 as the employers of D3 and D4 to question the integrity of D3 and D4.[12]

(b) She warned D3 not to defend this action but to mediate with her and threatened to go to the press.[13]

(c) She accused D4 of “hiding your head”.[14]

(d) She criticised D5 as “stupid” for filing an affirmation in support of the defendants’ summons.[15]

(e) She wrote to WCL of H&M that: “… my husband & I are thrilled & joyful for a Bankruptcy Order made today by forcing me to write to U & Mr Jason Yu day & night through fax & emails with effect from today.  Hahaha!”[16]

(f) She wrote to BM of H&M accusing WCL of suffering from mental disorder.[17]

(g) She wrote to PAY and copied to the Chief Judge of the High Court to ask PAY to “confess your lies and contradictions … to the Chief Judge…”.[18]

(h) She wrote to Jason Yu (counsel who has acted for the defendants before) that: “My husband & I are filled with joy & thrill today coz my husband is released with immediate effect fr today by leaving my game to be played with U & Hobson & Ma day & night.”[19]

(i) She threatened WCL and Jason Yu “not to accept your fresh appointment to act for the defendants in DCCJ1914/2015…”.[20]

88.Many of these transmissions have been copied to unrelated parties such as judges. 

89.Madam Yuen is also harassing the legal representatives of the other side (both present and former).  Apart from the examples cited above, she has made a complaint to Hong Kong Bar Association against Mr Lam for accepting the instructions to act for the other side.[21]

90.It is clear from the above that Madam Yuen has been abusing the court’s process in this action.

91.This is not the first time Madam Yuen is faced with restrictive orders (including both RPO and restrictive application order or “RAO”).  The court is entitled to refer to the findings in previous judgments in assessing the extent to which a litigant had engaged in litigations of a vexatious nature: see Choy Bing Wing v Chief Executive of HKSAR [2006] 1 HKLRD 666 at §33. 

92.In 2006, the Secretary for Justice took stock of Madam Yuen’s litigation behavior up till then and applied for an order under section 27 of the High Court Ordinance, Cap 4, on the ground that she had habitually and persistently and without any reasonable ground instituted vexatious legal proceedings.  The Secretary later withdrew the application after Lam J (as he then was) had indicated at the hearing of the application that he would be making a RPO and RAO against Madam Yuen. [22]

93.On that occasion, His Lordship commented that:

(a) Madam Yuen had commenced one action after another seeking to litigate on matters basically arising from the termination of her employment with Heath Company Limited (“the Heath saga”).  Most of her actions had been struck out by the court.  She had difficulties in accepting unfavourable results and she simply commenced fresh proceedings after defeats in previous actions.

(b) She conducted litigation in manners calculated to increase the costs burden on her adversaries.  She had occasionally resorted to using insulting languages in putting forward her case, eg by calling others “monkeys”.  She repeatedly made unfounded allegations against lawyers acting for her opponents as well as judges, including allegations of conspiracy.  She had also threatened to commence legal proceedings against the lawyers.

(c) She had the propensity to write numerous letters to the court and copied her correspondence with others (including lawyers acting for the other side) to the court.

94.In August 2007, Lam J granted another set of RPO and RAO against Madam Yuen in the actions concerning her dealings with the businesses of Robert Lam (“the RL saga”) commenting that:[23]

(a) Madam Yuen had adopted similar modus operandi in pursuing the actions under consideration. 

(b) In one respect, Madam Yuen had gone beyond what she had done before in the Heath saga by dragging the lawyers in as defendants in one of the actions. 

(c) She indicated in her tireless correspondence with the solicitors that Robert Lam should settle instead of incurring costs in fighting her and that her tactics would be to take every matter to the Court of Final Appeal to escalate costs.

95.The RPO made in the RL saga covers Madam Yuen’s claim in HCA 2107/2006 against Miranda Lam (a sister of Robert Lam).  Madam Yuen tried to evade the RPO by attempting to present a bankruptcy petition against Miranda Lam in the name of “David & Goliath” (a firm in which she was a partner) based on an alleged voluntary arrangement.  There had in fact not been any voluntary arrangement and the substance of the petition was a repetition of Madam Yuen’s claim in HCA 2107/2006.  The High Court Registry noted some irregularities and the petition was not filed.  Nonetheless, Madam Yuen wrote to Miranda Lam’s solicitors professing her intent to freeze Miranda Lam’s bank accounts on account of the petition and did actually notify one of the bankers.  On account of the serious abuse of process by Madam Yuen, Lam J granted a more extensive RPO against her.[24]

96.There were also Madam Yuen’s actions in relation to the dispute between the Lee/Li brothers (“the Lee/Li brothers saga”).  In the Reasons for Decision dated 22 August 2007 in HCA 2735/2006, Lam J observed that:

“17. … Yuen is an educated and intelligent person who knew all along what she was doing. She regarded litigation as some kind of games. It appears to her to be an advantage to play such a game in a tiresome and oppressive manner as she could act in person whilst her adversaries would have to bear heavy burden in terms of costs and time engaged in the legal proceedings. She repeatedly brought actions against the advisors of her adversaries based on some spurious claims like defamations, self-serving debit notes issued by herself and injury of feelings. From the correspondence, it is quite plain that Yuen adopted a tactic of causing maximum damages to her opponents in terms of costs which they would have great difficulties in recovering from her irrespective of costs orders in their favour. She threatened to take matters on appeal all the way to the Court of Final Appeal to occasion great exposure of her opponents to unrecoverable costs. In so doing, she tried to pass on a message to her opponents that it would be easier for them to advise their clients to settle with her instead of ‘playing games’ with her.

18. Instead of learning from her mistakes which this court have tried to explain to her for her benefit in Secretary for Justice v Yuen Oi Yee [2006] 1 HKLRD 679, her conducts in these proceedings have demonstrated that she intends to continue with her abuses of the legal process and the existing form of RAO and RPO is inadequate for the protection of other litigants and the prevention of wastage of judicial resources.”

97.In granting yet another set of RPO and RAP against Madam Yuen, His Lordship said on that occasion that:

“20. … in my view, time has come for a more extensive type of RAO and RPO to be imposed because Yuen’s litigation history since the making of the first RAO and RPO has proved that such order could not curb her impulsive inclination to cause damages to others by her vexatious activities.

21. Having considered the modus operandi of Yuen, the following types of actions are typical of her unmeritorious claims,

(a) defamation;

(b) self-serving debit notes issued by her on others;

(c) breach of oral agreement;

(d) injury to feelings.

22. Further, she has also attempted to rely on causes of action based on the following to generate unmeritorious satellite litigations,

(a) vicarious liability;

(b) professional negligence of lawyers.

23. It is proportionate and necessary to have a more stringent RPO and RAO in place. I therefore made a RAO and RPO not only encompassing existing subject matters and defendants in the Lee/Li brothers saga but also covering all new intended actions by Yuen in the High Court, District Court and Small Claims Tribunal based on the types of actions set out above irrespective of the identities of the putative defendants and the subject matters concerned. I am aware that such order is one step closer to a Section 27 order than the RPO and RAO that the court has made previously. However, on the facts and circumstances pertaining to Yuen’s actions, I regret to say that firm measure from the court is called for and the order I made has fairly taken into account of the legitimate interest of Yuen in the exercise of her right of access to the court.”

98.In 2008, the Secretary for Justice applied to commit Madam Yuen for contempt of court on account of her breaches of court orders and undertakings to court and interference with the due and proper administration of justice.  Chu J (as she then was) found, after trial, the allegations proven and sentenced Madam Yuen to a term of imprisonment of 2 months.[25]

99.On appeal, Madam Yuen tendered an apology to Lam J and offered her undertakings: (i) not to send any correspondence, letters or writings, to judges, clerks, officers and staff in the Registry; (ii) not to make telephone calls to judges, clerks, officers and staff in the Registry; and (iii) not to repeat the matter which have been complained about and the subject of the contempt proceedings.  The Court of Appeal accepted that she had purged her contempt and released her.[26]

100.Despite the previous restrictive orders against her, her conviction in ESCC 5404/2008, and the fact that she was found guilty of contempt of court, Madam Yuen has apparently not learnt a lesson and has once again resorted to her old tricks in this action. 

101.She refuses to accept her husband’s defeat in HCA 2045/2012 and LBTC 588/2011 and seeks to re-litigate the same issues again in the guise of her own claim.  She misrepresented to the Court of First Instance when applying for RPO leave and attempted to serve the writ out of the jurisdiction by deceit.  She is making unfounded claims and allegations against unrelated parties (such as the employers and lawyers of the immediate parties) and has commenced multiple proceedings in respect of the same claim.  She is harassing the defendants, the intended parties and their legal representatives with numerous and abusive correspondence and has unnecessarily copied such correspondence to a wider audience.

102.After Madam Yuen has obtained RPO leave to pursue against D8 in this case, she wrote to the Court of First Instance in these terms:

“Please be informed that both my husband and I had already prepared for the worst for a Bankruptcy Order to be made this morning by lifting up all available cash from my husband’s bank accounts, revolving loan accounts as well as using up all available credit limits in his credit cards … a Bankruptcy Order made against my husband in HCB1128/2015 will make no difference to my husband’s forcible retirement although my husband cannot proceed his litigation any further, if any, by leaving all his intended proceedings to be played by me under no choice not only with your Hong Kong Judiciary and Messrs Hobson & Ma but with the ICAC too…”[27]

103.In a grossly worded email, Madam Yuen openly professed her intention to commence other proceedings against the defendants:

“Once again, am I forced to be called [gross words omitted] by filing & serving my Disability Discrimination Claim against the same defendants in DCCJ1914/2015…”

104.In my view, Madam Yuen is likely to continue abusing the court’s process.  I therefore make an RPO in terms of the draft at Annex A.

105.The RPO granted by me is different from the one asked for by the applying defendants in five important respects:

(a) It binds not just Madam Yuen but firms and companies in which she has an interest.

(b) The scope of the order is extended to HCA 2045/2012 and LBTC 588/2011.  This should cover any disability discrimination claim to be commenced by Madam Yuen against the defendants which is a rerun of Mr Lee’s case in those proceedings, as the District Court has exclusive jurisdiction over such claims (see s 72(3) of the Disability Discrimination Ordinance, Cap 487).

(c) The RPO will also protect Mr Lam.

(d) I shall require Madam Yuen to enclose in her RPO leave application a copy of the draft document by which the fresh proceedings are intended to be commenced.

(e) Madam Yuen should be permitted to claim against D8 under s 66 of the PDPO for injury to her feelings as a result of the contravention identified in the Result of Investigation dated 16 May 2013 of the Privacy Commissioner.  Madam Yuen is well advised to seek legal advice on her intended claim before commencing any action.

In my view, the terms of the order is proportionate to the abuse of Madam Yuen.

106.I further refer this judgment to the Secretary for Justice for consideration of whether Madam Yuen has committed any offence in her attempt to serve the writ in the name of H&M.

H. Yuen’s 2^nd and 3^rd summonses to join additional defendants

107.As I have decided to strike out the present action, there is no cause to bring in additional defendants.  I dismiss Yuen’s 2^nd and 3^rd summonses.

108.As stated earlier, Madam Yuen has duplicated her claim against BM, WCL and H&M in HCA 1506/2015 and DCCJ 1915/2015.  It is an abuse of process to commence multiple proceedings in respect of the same claim.  HCA 1506/2015 is beyond my jurisdiction but I will strike out DCCJ 1915/2015 with no order as to costs.

I. Conclusion

109.For the above reasons, I make the following orders:

(a) the statement of claim herein be struck out under Order 18 rule 19 of the Rules of the District Court and the inherent jurisdiction of the Court on the ground that it discloses no reasonable cause of action and that it is scandalous, frivolous and vexatious and that it is an abuse of the process of the court, and this action be dismissed;

(b) the indorsement on the writ in DCCJ 1915/2015 be struck out under Order 18 rule 19 of the Rules of the District Court and the inherent jurisdiction of the Court on the ground that it discloses no reasonable cause of action and that it is scandalous, frivolous and vexatious and that it is an abuse of the process of the court, and that that action be dismissed with no order as to costs; and

(c) there be an RPO in terms of the draft at Annex A.

110.Costs generally follow the event.  The applying defendants have asked for indemnity costs in view of the conduct of Madam Yuen.

111.In §62/App 12 of the Hong Kong Civil Court Procedure 2016, it is noted that:

“When to order indemnity costs —The Court of Appeal in Choy Yee Chun (The Representative of the estate of Chan Pui Yiu) v. Bond Star Development Ltd[1997] HKLRD 1327, CA reviewed the cases and summarised the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s cost on the indemnity basis. However, the circumstances in which an indemnity award might properly be made were not restricted to circumstances such as those described. The discretion was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be ‘appropriate’…”

112.Given what is said above regarding Madam Yuen’s conduct, I take the tentative view that it would be appropriate to order costs against her on an indemnity basis.  I therefore make a costs order nisi for Madam Yuen to pay the applying defendants, BM, WCL, H&M and PAY costs on an indemnity basis.  Unless an application has been made to vary that order, that order shall become absolute 14 days after the judgment is handed down.

Annex A

Terms of the RPO

1. (a) That subject to sub-paragraph (b) below, the Plaintiff herein, whether in her personal capacity or in the name of her firm or a company in which she has interest, be prohibited from commencing any fresh proceedings, by whatever originating process, in the District Court concerning any matters involving or relating to or touching upon or leading to the proceedings herein and the proceedings in LBTC 588/2011 and HCA 2045/2012, whether against any of the defendants herein or their current or former legal representatives (including Messrs Hobson and Ma and any of their current or former employers, officers, partners, consultants, and counsel Mr Jason Yu and Mr Gary Lam) or otherwise, without the leave of the District Court;

(b) Notwithstanding the other provisions in this order, the Plaintiff is at liberty to commence fresh proceedings against the 8^th Defendant herein (namely, Best Spirits Company Limited) under section 66 of the Personal Data (Privacy) Ordinance, Cap 486 to claim for damage for injury to her feelings as a result of the contravention identified in the Result of Investigation dated 16 May 2013 of the Privacy Commissioner (ie Annex 2 to the letter from the Privacy Commissioner to the 8^th Defendant dated 16 May 2013);

2. All applications for leave under paragraph 1 above be made by the Plaintiff ex parte in writing to the designated judge, namely:

(a) His Honour Judge Ko of the District Court; or

(b) in the event of his unavailability, such other Judge or Judges of the District Court as the Chief District Judge may designate;

enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced;

3. At least 7 days before filing of any application for leave under paragraph 2 above, the Plaintiff do notify in writing each intended defendant of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Plaintiff from such intended defendant, that the Plaintiff do file a copy of each such response together with her said application for leave;

4. Any intended defendant having notice of such intended proceedings be entitled, but under no obligation, to place before the Court written representations regarding the same;

5. All applications made pursuant to this Order and all ancillary matters be dealt with by the Court on the papers and without any oral hearing unless the designated judge should otherwise direct;

6. If the Plaintiff should issue fresh proceedings falling or which may fall within the terms of paragraph 1 above without first seeking the leave of the Court, and if such fact should come to the notice of the Registrar of the District Court or any Master or Judge, such fresh proceedings be referred to the designated judge for a decision as to whether they should be permitted to continue or should be dismissed;

7. Notice of each decision by the designated judge made pursuant to this Order be given in writing to the Plaintiff and to each intended defendant named in the fresh proceedings; and

8. Whether or not any fresh proceedings are brought to the notice of the designated judge, if a defendant is served with such proceedings without the relevant documents being accompanied by either an Order giving leave to commence such proceedings or a Direction that leave to commence such proceedings is not required, such defendant be entitled to make no response to such service pending notification of the Court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.