Chin Bing Fu v. Mr. Clough and Legal Aid Department

CACV000272/1995

IN THE COURT OF APPEAL

1995, No. 272
(Civil)

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Coram: Bokhary, Liu and Ching, JJ.A. in Court

Date of Hearing: 23 January 1996

Date of handing down of Judgment: 2 February 1996

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J U D G M E N T

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Liu, J.A. (delivering judgment of the Court):

1. The plaintiff was the husband in a divorce case brought by his former wife. We will call them "the plaintiff" and "the wife". The wife claimed that the marriage had completely broken down primarily because the plaintiff was then cohabiting with one Pham Thi Nghia (also spelt as Fan Si Yi). A temporary divorce order was made by the court on 12 August 1988. The wife applied for a considerable sum to maintain herself and she wanted a share of Flat No. 1 on 18F Block C Connie Towers at 147 Hong Ning Road, Kwun Tong. Initially, the plaintiff was asked by the court to pay $3,000 per month as from 1 October 1989 for his wife's maintenance. The final divorce order was made on 23 May 1994. In between, the plaintiff had been prevented from leaving Hong Kong until he paid up the fees of the Director of Legal Aid in the sum of $8,999. Later, the plaintiff was ordered to pay his wife a reduced sum of $2,500 a month from 1 May 1990. He was also ordered to pay a lump sum of $100,000 before 1 August 1990. The plaintiff's share in Flat C, 14/F Kar Po Mansion at 499 Castle Peak Road, Kwai Chung was made subject to the payment of this $100,000. The wife abandoned her claim to Flat No. 1 18/F Block C of Connie Towers at 147 Hong Ning Road, Kwun Tong. The appellant did not make payments. By mid 1991, $132,999 was left outstanding. In November 1992, Flat C 14/F Kar Po Mansion at 499 Castle Peak Road, Kwai Chung was further made subject to the payment of legal costs of $23,500. There were further proceedings after the final divorce order. On the documents, it would appear to be a case of a divorced husband running into difficulties with the law for not making payment in time.

2. Looked at from the stand-point of the plaintiff, we can appreciate that the legal processes could be regarded by him as harsh and oppressive. The plaintiff maintains that he was given to understand that his liability would not exceed $2,000 in the divorce which he had agreed not to oppose. The monthly maintenance of not more than $2,000 in the Separation Agreement in Chinese signed by the plaintiff could have contributed to his overall misunderstanding.

3. The plaintiff felt aggrieved and targeted Mr Clough and the Legal Aid Department in his claims for reimbursement and compensation. In his High Court action, under the rubric of "Appeal Petition/Counterclaim/Compensation", he put his claims in six groups under six paragraphs:

(1) In paragraph 1, he complains that one Mr Wong of the Legal Aid Department had twice disturbed him early in the morning and advised him not to oppose the divorce and that these actions were in breach of the letter and the spirit of divorce law;

(2) In paragraph 2, it is complained that Mr Clough took steps to stop him from dealing with his residence property before the hearing of the divorce. That, he says, is contrary to the law. As for the sum the plaintiff was made to pay to the Registrar, he demands a reimbursement from the Legal Aid Department;

(3) In paragraph 3, the plaintiff claims against the Legal Aid Department for all his loss caused by the delay in the sale of his property, which, he says, was brought about by Mr Clough's interference with the finality of a court order for payment;

(4) In paragraph 4, it is said that Mr Clough intimidated and threatened witnesses inside and outside court, obtained an order preventing the plaintiff from leaving Hong Kong, disallowed out-of-court negotiation between the plaintiff and his wife and instigated Miss Mak of the Legal Aid Department to bring pressure to bear on his mother for him to return to Hong Kong from China; despite his request for expediting and bring an end to the court proceedings, the Legal Aid Department deliberately delayed matters, resulting in heavy losses to him. The plaintiff seeks compensation from the Legal Aid Department;

(5) In paragraph 5, the plaintiff expresses his dissatisfaction with the decision of Judge Longley who held that all his accusations could not stand and that as a losing party, he had to meet the costs awarded in the sum of $13,391.50. The plaintiff protests against and wishes to appeal from the false accusations of the Legal Aid Department;

(6) In paragraph 6, the plaintiff demands compensation for bodily and mental injuries and insults hurled at his family members and witnesses, in particular he regards the charge of adultery as the greatest insult against his wife, son and daughter. It is claimed that the High Court could not possibly reject his claims.

4. The plaintiff also gives details of his total claim of $1,397,843.50.

5. The plaintiff applied to the Master for an early trial, just five days after the defendant had acknowledged service of the writ and even before the time prescribed for service of a defence had expired. The Master rejected his application. Mr Justice Jerome Chan upheld the Master's decision. The plaintiff's oral application for summary judgment was also refused by the judge. At the same time, the defendants applied to the judge to strike out the plaintiff's Statement of Claim. The judge allowed their application except for paragraph 4. No reasons are given before us as to why it is said that the judge was wrong. We cannot but feel somewhat sympathetic towards the plaintiff who has his own but misguided notion of his right and fair play with which, he says, he should have been treated by the Legal Aid Department and its officers. His annoyance and frustration seem genuine. He voices his grievances, real or imagined, with deep emotion. Clearly, the struck out paragraphs of the Statement of Claim do not contain any sound reasons for making his claims. These are, at most, complaints of overzealous exercise of duties or functions by officials and their department. We are unable to assist the plaintiff. The judge's order for striking out must stand.

6. As for paragraphs 4 of the Statement of Claim, the judge gave him 21 days from his judgment to provide details of his allegations of malicious threats and intimidation. 21 days have since elapsed and extension of time is not a matter before us. We cannot find fault with the observation made by the judge on the break-down figures supplied by the plaintiff for his claims. We also cannot find any good reason for interfering with the order for costs made by the judge.

7. The plaintiff has had his day in court. We note his disappointment which he has so forcefully expressed, but we are unable to assist him on his claims which are simply not well founded. Therefore, we dismiss the appeal and make an order nisi for cost against the plaintiff.

Representation:

Chin Bing-fu, appellant in person

Mr K Wingrad of Crown Solicitor for respondents