Global Medical Solutions Hong Kong Ltd v. Ma Man Lung

HCA 1560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1560 OF 2011

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J U D G M E N T

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1.The Plaintiff is a Hong Kong company carrying on the business of trading in radioactive and pharmaceutical products in Hong Kong.

2.The Defendant is a former sales representative of the Plaintiff during the four months between November 2010 and March 2011.  On 11 March 2011, the Plaintiff terminated the Defendant’s employment with immediate effect for reasons set out in the Statement of Claim filed in these proceedings.  On 12 September 2011, the Plaintiff commencing the present proceedings against the Defendant seeking primarily an injunction and damages.  The material facts are set out in the Statement of Claim and shall not be repeated here.  At the hearing, the Defendant told this court he now works as a salesman of medical appliances.

3.On 19 January 2012, To J granted inter alia[1] an injunction (“Final Injunction”) as follows:

(a) The Defendant be restrained from howsoever (whether on his own account or on behalf of or in conjunction with any person, firm, company or other entity) assaulting, harassing, intimidating, threatening or pestering:

(i) the Plaintiff;

(ii) the directors, officers and employees of the Plaintiff, including but not limited to Jay Simon, Kwong Chung Yin and Wong Patrick;

(iii) the potential and existing suppliers of the Plaintiff, including but not limited to the suppliers as set out in Annexure A attached thereto (the “Suppliers”);

(iv) the directors, officers and employees of the Suppliers, including but not limited to Yim Suk Ming of Covidien HK Ltd;

(v) the potential and existing customers of the Plaintiff, including but not limited to the customers as set out in Annexure B attached thereto (the “Customers”); and

(vi) the directors, officers and employees of the Customers.

(b) Without prejudice to the generality of the above, the Defendant be restrained from howsoever (whether on his own account or on behalf of or in conjunction with any person, firm, company or other entity) assaulting, harassing, intimidating, threatening, or pestering persons mentioned hereinabove (the “Relevant Persons”) and /or from interfering with the economic interests and/or rights of the Plaintiff by conducting, committing and/or engaging in the following acts or conduct :

(i) communicating, whether directly or indirectly, with the Relevant Persons, with the intent to do any act restrained above, whether in writing or orally, including but not limited to (a) making telephone calls (b) sending faxes (c) sending text messages through mobile phones; and (d) sending emails/letters;

(ii) placing false and/or bogus orders with the Suppliers purportedly on the Plaintiff’s behalf;

(iii) impersonating the Customers and/or using false instruments to place false and/or bogus orders with the Plaintiff;

(iv) holding out and/or misrepresenting to the Suppliers and the Customers that he had the authority to act on behalf of the Plaintiff;

(v) purportedly doing any act on behalf of the Plaintiff; and

(vi) making false and/or inaccurate report and/or complaint against the Plaintiff.

4.The Final Injunction was granted by To J upon the failure of the Defendant to file a Defence to the Statement of Claim herein, but after hearing both the Plaintiff and the Defendant (acting in person) at the hearing.

5.By summons filed on 5 July 2012, the Defendant sought leave to appeal against the Order made by To J on 19 January 2012 out of time. On 14 August 2012, To J, after hearing solicitors for the Plaintiff and the Defendant in person, dismissed the Defendant’s leave application.

6.There are two applications by the Defendant before this court.

7.First, the Defendant applied by an undated summons probably issued on 28 January 2016 (“1^st Summons”) seeking to set aside an interim injunction, similar in terms to the final one granted by To J, granted by Yam J on 16 September 2011.  At the hearing before this court, the Defendant confirmed that he would withdraw the 1^st Summons. The only issue outstanding is the question of costs.

8.Second, the Defendant applied by summons dated 29 February 2016 (“2^nd Summons”) seeking to set aside the Final Injunction.  The 2^nd Summons is supported by an affirmation of the Defendant (“Ma 1”) dated 9 March 2016.

9.While Ma 1 contains a large number of exhibits, the body itself is quite short.  Judging from Ma 1’s content, it would appear that the Defendant is complaining the lack of a time limit in the Final Injunction and that is very unfair to him.  The Defendant seems to take the view that four years have already expired since the grant of the Final Injunction and it should be about time to discharge it.  Further, the Final Injunction covers a large number of the Plaintiff’s potential and existing customers which are either hospitals or medical centers in Hong Kong with a department of nuclear medicine and clinical oncology.  The Defendant seems to be of the view that the Final Injunction precludes him from competing with the Plaintiff or contacting its customers and/or suppliers.

10.The 2^nd Summons is opposed by the Plaintiff.

11.Mr Birks, for the Plaintiff, submits that the application is misconceived. This court agrees.

12.First, the present Action having been concluded and the Final Injunction Order having been drawn up, sealed and perfected on 10 February 2012, it seems that this court (or To J for that matter) is functus officio and has no jurisdiction to discharge it.  Only the Court of Appeal can discharge the Final Injunction on appeal but the Defendant is way out of time by now.

13.In Andayani v Chan Oi Ling [2000] 4 HKC 233, at 237 C-D, Keith JA stated:

“There must, of course, come a time in any proceedings when the court must be regarded as having completed its task. When that time is reached, the court is said to be functus officio. Once that stage has arrived, the court has no further jurisdiction over the case. But when does that stage arrive? The answer given by the common law is when the judge's order has been drawn up, entered or otherwise perfected.”

14.The same principles apply to a consent judgment.  In Moores Rowland (a Firm) v Grant Thornton (a firm) and ors,HCA 735/2010, HCA 1126/2010, HCA 1873/2010 and HCMP 1284/2011, 8 June 2012, Deputy Judge Lok, having referred to Andayani v Chan Oi Ling, stated as follows:

“28. Secondly, the principle of functus officio is equally applicable to an order made without any judicial determination or exercise of judicial discretion.  As I see it, whether the consent order is approved by the judge or master or entered pursuant to O 42 r 5A, the most important issue here is that there must “come a time in any proceedings when the court must be regarded as having completed its task”, beyond that the court has no further jurisdiction over the case.”

15.Second, even assuming for the sake of argument that this court has jurisdiction to discharge the Final Injunction, this court is not satisfied that it should exercise its discretion to do so.  This court has carefully considered the contents of Ma 1 and the submissions of the Defendant at the hearing.  There are simply no grounds on which this court can act to discharge the Final Injunction.  Contrary to what the Defendant submits, the Final Injunction does not preclude him from competing with the Plaintiff, working in the business of trading in radioactive and pharmaceutical products in Hong Kong or, if he wishes to do so, carrying on such business.  It also does not preclude him from working as a salesman of medical appliances which he presently is doing.  All that the Injunction does is to restrain him from assaulting, harassing, intimidating, threatening or pestering the relevant entities or persons.  That is something which the Defendant is not supposed to do anyway.  It is difficult to see what prejudice the Defendant will suffer or why it is unfair to him by virtue of the continued existence of the Final Injunction.

16.For these reasons, the discharge application is misconceived and should be dismissed.

17.This court hereby makes the following orders:

a. leave to the Defendant to withdraw the 1^st Summons with an order nisi that costs be to the Plaintiff to be summarily assessed on paper and paid by the Defendant forthwith;

b. the 2^nd Summons is dismissed with an order nisi that costs be to the Plaintiff to be summarily assessed on paper and paid by the Defendant forthwith.

18.In the absence of an application to vary the costs order nisi within 14 days, the above costs orders shall become absolute.

19.The Plaintiff is directed to file and serve its revised statement of costs within 14 days. The Defendant is directed to file and serve his comment on the revised statement of costs, if any, within 14 days thereafter.  Costs will then be assessed by this court on paper without further hearing.

Mr M Birks, of Angela Wang & Co, for the plaintiff

The defendant, Mr Ma Man Lung, appeared in person