Ng Yat Chi and Another v. China Resources (Holdings) Co Ltd and Others

CACV 263/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2005

(ON APPEAL FROM HCA NO 424 OF 2005)

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BETWEEN

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J U D G M E N T

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

1.This appeal was brought in 2005 in respect of the judgment of A Cheung J (as the Chief Judge then was) of 12 August 2005. The judge struck out the claim in HCA 424 of 2005 on the ground that leave had not been obtained pursuant to a RPO against the 1^st Plaintiff and he further made a RPO against the 2^nd Plaintiff. The Notice of Appeal was lodged by the Plaintiffs in person on 2 August 2005. The appeal was set down on the same date.

2.On 9 November 2005, Yeung JA (as he then was) made an order for security for costs in favour of the 4^th Defendant.  The security was duly paid into court.

3.On 22 December 2005, Yeung JA made another order for security for costs in favour of the 1^st to 3^rd Defendants.  The security was not paid and the appeal in respect of the 1^st to 3^rd Defendants was dismissed accordingly.

4.Notwithstanding that the appeal was extant as between the Plaintiffs and the 4^th Defendant, it became dormant.

5.On 1 December 2015, the 2^nd Plaintiff issued a summons seeking directions “required due to refusal to release tape recordings over 10 years to show the fabrication of judgment/orders/transcripts committed by A Cheung J in HCA 424 of 2005 be given for the further conduct of this appeal arising from the two orders issued by Yeung JA on 9 November 2005 and 22 December 2005 despite Yeung JA then was fully aware of such judicial frauds”.

6.That summons was dismissed by Yeung JA on 4 December 2015 on the grounds that the application is completely groundless and procedurally irregular.

7.From the records, it appeared that preparation was moving ahead in January 2016 and on 23 March 2016, the 2^nd Plaintiff filed an application to fix a date for the hearing of the appeal.

8.In a letter of 12 April 2016, a Master gave directions for the preparation of the appeal bundle.  By a letter of 12 April 2016, the 2^nd Plaintiff demanded the release of “authentic transcripts” without which he claimed that the appeal bundle could not be prepared.

9.The Master replied by letter on 15 April 2016 reiterating appellants must comply with directions in his letter of 12 April, failing which the matter would be referred to a Justice of Appeal for further directions.

10.By a letter of 15 April 2015, the 2^nd Plaintiff maintained his previous position, viz that “authentic transcript” must be available before appeal bundle could be prepared.

11.What actually happened was that A Cheung J had granted leave on 12 August 2005 for the transcript of the hearing of 23 June 2005 to be provided to the 2^nd Plaintiff.  He obtained the transcript.  He then made a request for releasing to him the tape recording of the hearing.  That request was refused by A Cheung J on 26 August 2005.

12.Due to the non-compliance with the direction of the Master, the matter was referred to Yeung VP.  On 3 May 2016, Yeung VP made an order that if the direction for preparation of bundle was not complied within 21 days, the appeal shall be dismissed.

13.On 10 May 2016, the 2^nd Plaintiff issued a Notice of Motion seeking to set aside the order of Yeung VP of 3 May 2016.

14.The grounds to support the Motion were set out in the Notice of Motion as follows:

“1. The present appeal has been held at bay due to manipulations by the Defendants and the Judiciary including A. Cheung J (now CJHC), Yeung VP and Lam VP.

2. Yeung VP had been involved in the manipulations including dealing with the Defendants’ applications for security for costs.

3. The crucial matter in the appeal is the authenticity of the transcripts released by A. Cheung J of the hearing on 23/6/2005 but the Judiciary insisted to act with falsity.

4. Yeung VP lately made directions that unless I lodge Appeal Bundle containing the falsified materials, the appeal will be dismissed.

5.  The Order made by Yeung VP is contrary to the rule of law and must be set aside, unless the Full Court of Appeal sees fit to the declarations prayed for herein.”

15.The 2^nd Plaintiff made an application for the recusal of Lam VP.  He advanced grounds based on the judge’s judgment in a probate case in which none of the party to this appeal has any connection. He also referred to the striking out of his claim in another case HCA 2351 of 2005. Having heard his application, we rejected the application.  The relevant principles are discussed in a judgment in another instance where the 2^nd Plaintiff made a similar application in another case, see Choy Bing Wing v President of Hong Kong Institute of Engineers CACV 172 of 2013, 13 June 2014.  Like that occasion, the 2^nd Plaintiff again relied on groundless allegation of judicial fraud without any scintilla of evidence. He also said Lam VP was ugly. Needless to say, that can hardly be a ground for recusal. After making his unruly comments, the 2^nd Plaintiff stormed out of the court room before the conclusion of the hearing. We therefore indicated on the record that we would adjourn and give our judgment in writing.

16.Turning to his Motion, Grounds 1 and 2 are absolutely unmeritorious.  Lam VP had not been involved in this appeal until he gave direction on 11 May 2016 for the hearing of the motion.  Further, the materials in the 2^nd Affirmation of the 2^nd Plaintiff do not disclose any evidence of “manipulations” other than the usual judicial directions or decisions on case managing the appeal and directions for release of transcripts and tape recording.  The processing of the applications for security for costs by Yeung JA was the usual conduct of proper applications in judicial proceedings and there is absolutely nothing to suggest that His Lordship had not dealt with the matter judicially.

17.The only particulars we could identify in respect of the 2^nd Plaintiff’s challenge to the authenticity of the transcript of 23 June 2005 appear in his letter of 21 December 2005 to the Chief Justice.  The discrepancies identified by him were as follows:

“ The judge omitted his words the right of a shareholder even holding one share to have the legal right to seek remedy for dividend back spoken in court on 23/6/05.

The judge inserted the issue of Court’s own motion in the transcript to strike out which was then detailedly (sic) canvassed in the judgment.”

18.Having read the judgment of 12 August 2005 and bearing in mind the detailed reasons given in that judgment for the decision, we can hardly see the materiality of these so-called discrepancies in this appeal.

19.Be that as it may, in order to allay the 2^nd Plaintiff’s concerns, we would grant him leave to obtain the audio recording of the hearing of 12 August 2005.

20.But that should not prevent him from the preparation of the appeal bundle.  We do not see any merits in Grounds 4 and 5.  Actually, the 2^nd Plaintiff had already produced an appeal bundle and submitted the same to the master for approval.

21.We shall make an order granting leave to the 2^nd Plaintiff to obtain the audio recording of 23 June 2005 upon the payment of prescribed fees. He can contact the clerk of Lam V-P within 5 days from the handing down of this judgment for the arrangement. If he does not do so, the leave will be revoked. We would not disturb the order made by Yeung VP of 3 May 2016.

1^st plaintiff, absent

2^nd plaintiff appearing in person

No attendance by Clifford Chance, for the 4^th defendant