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HCA 2333/2019
[2020] HKCFI 1557
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO 2333 OF 2019
________________________
BETWEEN
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林雪梅是赤柱街120號
和赤柱地段95號(業主) |
Plaintiff |
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and |
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雋暉有限公司 |
Defendant |
________________________
Before: Hon Marlene Ng J in Chambers
Date of Hearing: 17 June 2020
Date of Handing Down Judgment: 15 July 2020
________________________
J U D G M E N T
________________________
I. INTRODUCTION
1.On 18 December 2019, the plaintiff “林雪梅是赤柱街120號和赤柱地段95號(業主)” commenced the present action against the defendant “雋暉有限公司” (Win Talent Limited, “D”). I shall refer to “林雪梅” as “P” below.
2.By her Statement of Claim (“SoC”), P averred as follows:
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(a) |
P was an indigenous villager who grew up at Stanley (a small fishing village with few indigenous villagers), so the Lam family and the Yung family were good neighbours. |
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(b) |
The Land Registry records showed that in 1941 the Yung family engaged a professional surveyor to partition and divide Stanley Lot No 456 (“Lot 456”) into 3 portions pursuant to section 2 of the Partition Ordinance Cap 352 because “翁家太公” had 3 sons, ie the eldest son Yung Kwai Sang, the second son Yung Hok Ming and the third son Yung Shau Nin, so the owner of each portion could sell his own portion. |
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(c) |
In 2004, P intended to develop No 120 Stanley Main Street, Hong Kong (“120 Address”), so she engaged an architect surnamed Chan to submit building plans to the Building Department (“BD”). But the BD considered the area was too small for development, and required her to acquire another 60 sq ft of land from the government. The BD later set out the terms for such acquisition of land. |
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(d) |
On 13 July 2007[1] the owner 林永恆 (Lam Wing Hang, “Lam”) sold “地段” (ie 120 Address)[2] to Good Ascent Investment Limited (“Good Ascent”). Subsequently, Good Ascent proposed to surrender such lot to the government in exchange for another lot. By Deed of Surrender and Conditions of Exchange executed on 20 October 2004 (“Surrender Deed” and “Exchange Conditions”), such lot was surrendered for another lot. |
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(e) |
“(一)將[Good Ascent]申請換地(二)賣多60平方尺要630.000費用(三)將[120 Address]的年期999年期轉換為50年(四)將上述地段改名叫赤柱地段95號[“Lot 95”](五)真正業權歸[Good Ascent]及[P], 當年是[P]開了一張美國銀行的支票給地政署最後結果, 可以從地政署親手將換地的資料送到土地註冊處登記, 真正是[Lot 95], 只得60平方尺。” |
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(f) |
“2004年10月20日, 同日完成換地以後地政署給回[Good Ascent][120 Address]的地契, 親手給[Lam]後, (一)[Good Ascent]董事再沒有簽過文件賣給任何人和任何公司(二)沒有向任何銀行貸款(三)[Good Ascent]從來沒有簽賣買物業文件, 賣給[D]”. |
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(g) |
“如果當日在法庭法官面前, 請求法官請[D]拿出(一)[Good Ascent]在2008-3-31號[Good Ascent]同匯豐銀行[“HSBC”]簽的借貸的合約, (二)[D]向[HSBC]賣買合約日期2012年2月27的合約”. |
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(h) |
“損失部由2012年至2019年[D]不是[120 Address]及[Lot 95]的業主, 而[D]損壞室內一切的裝修, (一)希望法官判原告勝訴、(二)要[D]賠償港幣二千萬元”. |
3.In short, P alleged she and Good Ascent held “real” title to Lot 95 as she had issued a cheque to the Lands Department (presumably for the premium paid for the Exchange Conditions), and in 2012-2019 D was not the rightful owner of Lot 95 because (a) Good Ascent never borrowed loans from banks, and (b) Good Ascent and/or its directors never executed any sale and purchase documents for the sale of Lot 95 to D, so P suffered loss due to damaged furnishings at Lot 95 and D’s wrongful ownership of Lot 95, and she was entitled to damages in the sum of $20,000,000.
4.On 23 December 2019, D by its solicitors filed acknowledgment of service giving notice of intention to defend.
5.On 22 January 2020, D filed a summons (a) to strike out the SoC on the ground that it disclosed no reasonable cause of action, or was scandalous, frivolous or vexatious, or was otherwise an abuse of the process of the court, (b) to dismiss P’s claim in the present action, (c) to seek restricted application/proceedings orders against P, (d) to apply for extension of time to file/serve its Defence (if necessary) until after disposal of the Summons, and (e) to apply for costs (“Summons”). On the same day, D filed the affirmation of its solicitor Yeung Yun Por (“Yeung”) in support of the Summons (“Yeung Aff”).
6.The Summons was scheduled to be heard on 5 March 2020. On 2 March 2020, this court granted directions for re-fixing such hearing which had to be generally adjourned due to public health considerations. By a letter dated 9 March 2020, P wrote to the court stating that “本人[P]決定終止HCA2333/2019。故此無需排期審理被告方的剔除申請”. But in such letter P did not state her stance on the other reliefs that D sought in the Summons, eg D’s claims for restricted application/ proceedings orders and for costs. So on 16 March 2020, this court granted written directions to the parties that unless D withdrew the Summons, the earlier directions for re-fixing the hearing for the Summons do stand.
7.Eventually, the hearing of the Summons was re-fixed to be heard by this court on 17 June 2020 (“Hearing”). On 4 June 2010, the court duly posted a notice of hearing to P. On 16 June 2020, D filed an affirmation of service by the process server of D’s solicitors (“Process Server”) verifying that on 4, 10 and 12 June 2020 the Process Server served on P (a) Chinese notice of the re-fixed hearing of the Summons, (b) the hearing bundle for the Summons, and (c) the skeleton submissions and list of authorities by D’s counsel by way of ordinary post to her address for service.
8.P was absent at the Hearing. On the same day but after the Hearing, D filed an affirmation of service by the Process Server verifying that on 23 January 2020 the Process Server attended P’s address for service and left copies of the Summons, the Yeung Aff and the Chinese translations thereof with the person thereat (who claimed to be P’s friend), and such person signed to acknowledge receipt of such documents, and told the Process Server that she would inform P about receipt of such documents.
II. LOT 456RP AND LOT 95
9.It was unclear from the SoC what was the status of the historical and present title/ownership of the Remaining Portion of Stanley Lot No 456 (“Lot 456RP”) and Lot 95. The historical and present title of Lot456RP and Lot 95 was traced and set out in Part II of my judgment handed down on 4 December 2019 HCA889/2019 (“2019 Action”) commenced by P’s brother Lam (who claimed to be the owner of Lot 456RP) against D (“Judgment”),[3] which chronology of title was also evident from the title documents exhibited to the Yeung Aff. Unless contradicted by abbreviations adopted herein or otherwise set out in the judgment herein, I shall adopt the abbreviations in the Judgment.
10.I shall adopt (but do not propose to repeat here) Part II of the Judgment. The status of the historical and present title/ownership of Lot 456RP and Lot 95 could be summarised as follows:
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(a) |
By the Block Leave, the government demised Lot 456 to Yung Shau Nin, Yung Hok Ming and Yung Kwai Sang. |
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(b) |
By an Assignment dated 21 January 1941, Yung Shau Nin assigned unto Kwok Mui his ⅓ share of and in Lot 456 (including the house at the 120 Address) for the residue of the Block Lease. |
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(c) |
By the Partition Deed dated 18 November 1941, Lot 456 was divided into 2 portions (not 3 portions as P alleged in the SoC), ie Lot 456A and Lot 456RP with inter alia Kwok Mui assigning and releasing unto Yung Hok Ming and Yung Kwai Sang as tenants-in-common Lot 456RP (including the house at the 120 Address) for the residue of the Block Lease. Thus, Lot 456RP came into existence pursuant to the Partition Deed, and Kwok Mui ceased to have any share/interest in Lot 456RP, which was owned by Yung Hok Ming and Yung Kwai Sang. |
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(d) |
Yung Kwai Sang passed away on 2 April 1942, and by the Yung Kwai Sang LA dated 6 May 1976, Yung Ming Kwong was appointed as administrator of the estate of Yung Kwai Sang. |
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(e) |
By an Assent dated 18 March 1980, Yung Ming Kwong became the owner of ½ share of and in Lot 456RP as tenant-in-common with Yung Hok Ming. |
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(f) |
By an Assignment dated 22 September 1990, Yung Hok Ming assigned his ½ share of and in Lot 456RP to Litmond, ie Litmond and Yung Ming Kwong owned Lot 456RP as tenants-in-common in equal shares. |
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(g) |
Yung Ming Kwong passed away, and by letters of administration granted on 8 November 1994, Yung Jim Mei Jimmy became the administrator of the estate of Yung Ming Kwong that included ½ share of and in Lot 456RP. |
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(h) |
By an Assignment dated 8 July 1995, Yung Jim Mei Jimmy assigned to Lam his ½ share of and in Lot 456RP. By an Assignment dated 7 November 1996, Lam re-assigned to Yung Jim Mei Jimmy his ½ share of and in Lot 456RP and the 120 Address for a consideration of $250,000. By an Assignment dated 8 July 1997, Yung Jim Mei Jimmy re-assigned to Lam his ½ share of and in Lot 456RP and the house at the 120 Address for a consideration of $250,000. |
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(i) |
On 5 January 1999, Lam made statutory declaration of lost title deeds and documents in respect of ½ share of the house at the 120 Address. |
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(j) |
By an Assignment dated 31 May 2000, Litmond assigned to Lam its ½ share of and in Lot 456RP for a consideration of $2,000,000. |
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(k) |
By the P / Good Ascent Assignment dated 13 July 2001, Good Ascent acquired from Lam (and hence became the owner) of Lot 456RP and the house at the 120 Address for a consideration of $3,000,000. |
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(l) |
At the time of the P / Good Ascent Assignment, Lam was a director and shareholder of Good Ascent. But on 22 April 2002 Lam ceased to be a director and director of Good Ascent, and thereby left the company. |
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(m) |
By the Surrender Deed dated 20 April 2004, Good Ascent surrendered Lot 456RP (as marked on the Surrender Plan) including any house thereon to the government in exchange for the grant to Good Ascent of “a piece or parcel of ground to be known and registered in the Land Registry as [Lot 95]”. By the Exchange Conditions dated 20 October 2004, the government granted to Good Ascent Lot 95 located at Stanley Main Street, Stanley, Hong Kong as marked on the Exchange Plan for a term of 50 years for premium paid in the sum of $630,000 in exchange for the surrender to the government of Lot 456RP located at the 120 Address marked in the Surrender Plan. |
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(n) |
Thus, by reason of the Surrender Deed and the Exchange Conditions, the legal existence of Lot 456RP (the last owner of which was the government) came to an end and the Block Lease was discharged, hence any interest Good Ascent had (or Lam previously might allegedly have had) over Lot 456RP was extinguished upon such surrender and exchange. So even though Lot 95 retained the same street number of 120 Stanley Main Street, Stanley, Hong Kong as that for Lot 456RP, there was no overlap and at any particular point of time the 120 Address was either the location address of Lot 456RP or the location address of Lot 95. |
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(o) |
Pursuant to the Exchange Conditions, Good Ascent was the first owner of Lot 95. |
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(p) |
Good Ascent as borrower/mortgagor entered into the 1st Building Legal Charge dated 7 December 2004 and the 2nd and 3rd Building Legal Charges both dated 28 December 2005 with WHBL, and such building legal charges were registered at the Land Registry on 5 February 2005, 13 January 2006 and 13 January 2006 respectively. |
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(q) |
By an all-moneys Mortgage dated 31 March 2008 and registered at the Land Registry on 23 April 2008, in consideration of HSBC granting banking facilities to Good Ascent, Good Ascent as beneficial owner charged and assigned Lot 95 and any messuages, erections and buildings at the 120 Address to HSBC subject to the proviso for redemption. Since the Mortgage was a publicly available document at the Land Registry, this was a complete answer to P’s allegation in the SoC that Good Ascent did not borrow money from banks and did not execute the Mortgage. |
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(r) |
On 31 March 2008 the 1st, 2nd and 3rd Building Legal Charges were discharged (ie the same date as the date of the Mortgage), and on 23 April 2008 the receipts on discharge of such legal charges were registered at the Land Registry (ie the same date as that for the registration of the Mortgage). It appeared that the banking facilities under the Mortgage were used to pay off the building loans under the 1st, 2nd and 3rd Building Legal Charges. |
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(s) |
Good Ascent was wound up by the court on 11 January 2010, which amounted to an event of default under the Mortgage, and which in turn triggered HSBC’s exercise of its power to recover possession and its power of sale in respect of Lot 95 under the Mortgage. |
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(t) |
With leave granted by Master Hui on 10 November 2010, HSBC commenced mortgage action in HCMP2376/2010 against Good Ascent. On 4 January 2011, Master Lai granted a money-and-possession order in favour of HSBC against Good Ascent whereby Good Ascent was required to deliver up vacant possession of Lot 95 to HSBC. |
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(u) |
HSBC recovered vacant possession of Lot 95. By the PASP dated 27 February 2012, the FASP dated 15 March 2012 and the Assignment dated 16 April 2012 executed by HSBC as vendor in exercise of its power of sale as mortgagee under the Mortgage, HSBC assigned to D Lot 95 together with messuages erections and buildings thereon at the 120 Address for a consideration of $27,500,000. The PASP was a publicly available document as it was registered at the Land Registry on 16 March 2012, which was a complete answer to P’s allegation in the SoC that there was non-production of such document. |
III. STRIKING OUT THE SoC AND DISMISSING THE ACTION
11.P’s name and/or Lam’s name never appeared in the 95 Records as owner or part owner of Lot 95. Further, P’s SoC did not reveal any written instrument that evidenced any ownership of title over Lot 456RP and/or Lot 95 by P. Bearing in mind that Lot 456RP was different and separate from Lot 95, and Good Ascent was different from Lam and/or P, it was plain that P had no title, share or interest in Lot 95 or any part thereof.
12.Whilst it was true Good Ascent was not the one who sold and/or executed documents to sell Lot 95 to D, the sale of Lot 95 was effected by HSBC as mortgagee under the Mortgage. As explained in paragraphs 94-98 of the Judgment, there was no basis for P and/or Lam to question such mortgagee sale for which D paid $27,500,000 to HSBC. Not only was such mortgagee sale by private treaty permitted under the Mortgagee made between HSBC and Good Ascent, sections 52 and 53(1)(a) of the CPO made clear that whatever title or interest Lam (and/or P) might have had in Lot 95 (albeit none had been shown), it would become null and void against D’s title to Lot 95 acquired under the mortgagee sale, and at best P’s claim (if any) would be against HSBC as the mortgagee exercising the power of sale under the Mortgage and not against D. Actually, it was doubtful whether P had any claim against any party at all since she had no title or interest in Lot 95 (the former owner of which land being Good Ascent and not P and/or Lam). Even if it was said P had some alleged interest in Lot 456RP, she still would not have any cause of action against D.
13.In any event, I cannot see how P being interested to develop Lot 456RP or P submitting building plans to the BD by her agent (as she alleged in the SoC) would give her any title/interest in Lot 456RP and/or, more importantly, in Lot 95. Further, P’s claim of alleged payment of the premium sum of $630,000 under the Exchange Conditions to the government was neither here nor there. It was Good Ascent who surrendered Lot 456RP to the government under the Surrender Deed and who exchanged and acquired Lot 95 from the government under the Exchange Conditions. Thus, Good Ascent and not P/Lam became the 1st owner of Lot 95. Any arrangements by Good Ascent for P to pay the premium on its behalf to the government would be a matter between P and Good Ascent. In any event, P’s alleged payment of the premium and/or any unwritten equities that might arise as a result (eg beneficial interest in Lot 95 due to resulting trust) do not bind D as bona fide purchaser for value without notice.
14.In my view, on the above analysis in light of the legal principles on striking out claims as set out in paragraphs 78-81 of the Judgment, which I adopt but will not repeat here, P’s SoC ought to be struck out and the present action ought to be dismissed for disclosing no reasonable cause of action, and for being scandalous, frivolous and vexatious.
15.But Mr Wong, counsel for D, went further. He drew attention to HCA2513/2017 (“2017 Action”) whereby P as the plaintiff therein sued D on the same or similar subject matter as the present action, ie the matter of ownership interest of Lot 95 at the 120 Address. According to the Yeung Aff, P brought such claim as the front-woman for her brother Lam, who as the plaintiff in HCA1180/2018 (“2018 Action”) and in the 2019 Action also sued D in relation to the same or similar subject matter. Mr Wong submitted the SoC in the present action was also liable to be struck out for abuse of process as P (or Lam via P) issued multiple claims against D on the same or similar subject matter, which claims were unmeritorious and were brought to vex D.
16.As for the relevant legal principles for striking out claims based on issue estoppel, collateral attack and abuse of process, I gratefully adopt the succinct summary in Mr Wong’s written submissions:
“6. In relation to Henderson v Henderson issue estoppel, the Court of Appeal summarized in Yifung Properties Ltd v James Nicholas Barrie Smith [2018] HKCA 866 [2019] 1 HKLRD 36 that:
(1) Where there is an attempt to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings, the claim can possibly be struck out on the basis of the doctrine, which is founded on an abuse of process (§16).
(2) The abuse usually takes the form of a party or his privy being vexed twice, but it can also take other forms including bringing the administration of justice into disrepute or manifest unfairness to the other party in the subsequent proceedings (§17).
(3) One must allude to the background of the dispute between the parties in the earlier proceedings and the earlier judgments in conducting the broad merits-based assessment in the context of the doctrine (§§14-15).
7. As to abuse of process and collateral attack, the Court of Appeal held in China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1 that:
(1) With the Court’s inherent power to prevent an abuse of its process, the Court will in an appropriate case occlude an attempt to relitigate a decided issue even though the parties to the actions were not the same and/or where a different form of proceedings is to set up the same case: §§51, 52, 55.
(2) Where the parties to the later proceedings are not parties or privies of those who were parties to the earlier proceedings, it suffices to establish an abuse if a collateral attack may be manifestly unfair or an affront to the administration of justice in the minds of right-thinking people: §61.”
17.The Yeung Aff described the 2017, 2018 and 2019 Actions as follows:
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On 3 November 2017, P commenced the 2017 Action against D in relation to the same or similar subject matter as in the present action. Upon review of P’s writ of summons with statement of claim endorsed thereon (“2017 SoC”) and P’s affirmation dated 11 January 2018 (to oppose D’s application to strike out the 2017 SoC and to dismiss the 2017 Action) (“2017 Aff”), Yeung (who later found out that P was Lam’s sister) believed P was Lam’s agent, front-person or accomplice since P in paragraphs 1 and 5 of the 2017 SoC described herself as “林永恒” (ie Lam). Upon D’s application by summons, Master J Wong on 18 May 2017 struck out the 2017 SoC and dismissed the 2017 Action on the ground that it was scandalous, frivolous or vexatious, or was otherwise an abuse of process with costs to D on indemnity basis assessed at $207,000 to be paid within 28 days.[4] |
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(b) |
3 days after the dismissal of the 2017 Action, ie on 21 May 2018, Lam (despite not being able to sue given his status as an undischarged bankrupt – see paragraphs 63 and 71-76 of the Judgment) commenced the 2018 Action allegedly in his capacity as the first director of Good Ascent and the owner of Lot 456RP on the same subject matter as the 2017 Action. In fact, Lam’s statement of claim endorsed on the writ of summons (“2018 SoC”) was identical to the 2017 SoC save that Lam crossed out P’s signatures and replaced them with his own. Again, on D’s application by summons, Master G Chan on 5 October 2018 struck out the 2018 SoC on the ground that it disclosed no reasonable cause of action, or was scandalous, frivolous or vexatious, or was otherwise an abuse of process, and she dismissed the 2018 Action with costs to D at $130,000.[5] |
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(c) |
On 22 May 2019, Lam commenced the 2019 Action against D on the same or similar subject matter, but sought damages for loss he allegedly suffered as a result of D’s wrongful acquisition of Lot 456RP (“賠償多年的損失及STANLEY LOT NO 456RP有可能請一間建築公司評估, 有可以要50.000.000”), which D denied. Upon D’s application by summons, this court by the Judgment on 4 December 2019 struck out P’s statement of claim endorsed on the writ of summons (“2019 SoC”) on the grounds that Lam had no locus standi to sue[6] and that the 2019 SOC disclosed no reasonable cause of action, or was scandalous, frivolous or vexatious, or was an abuse of the process of the court,[7] and this court went on to dismiss the 2019 Action,[8] to grant relevant restricted application/proceedings orders to prohibit Lam from issuing further applications in existing litigation and/or commencing fresh proceedings in the Court of First Instance, the District Court and the Land Tribunal concerning any matters involving or relating to or touching upon or leading to the proceedings in the 2018/2019 Actions,[9] and to award costs in favour of D on indemnity basis.[10] |
18.14 days after this court struck out the 2019 SoC, dismissed the 2019 Action and granted restricted application/proceedings orders against Lam, P commenced the present action against D. Having traced the history of the 2017, 2018 and 2019 Actions and now the present action, Yeung believed (and I accept) that in this series of litigation P and Lam were complicit in making concerted efforts to bring unmeritorious legal proceedings against D, and to re-litigate unfounded claims on the same subject matters against D. There was strong hint that by the present action P (who obviously had no title/interest in Lot 456RP and/or Lot 95 as evident from the 456RP and 95 Records) was attempting to re-run Lam’s case in the guise of her own claim, in which case the present action would amount to a collateral attack against the Judgment so as to further vex D on the same or similar facts/issues despite the dismissal of the 2018 and 2019 Actions.
19.Although the cause of action P advanced and the relief she sought in the present claim were on their face somewhat different from those relied on and sought by Lam in the 2019 Action, there could be no doubt that the present action and the 2019 Action were, as Mr Wong submitted, based on the same factual matrix and concerned the same or similar subject matter, ie the ownership of Lot 95. In fact, the issues in the 2017, 2018 and 2019 Actions and the present action overlapped because these actions required the court to investigate into the title, ownership and interest of the former Lot 456RP and the present Lot 95 by tracing the title documents referred to in paragraph 10 above. Thus, despite the slightly different formulations in the 2017, 2018 and 2019 Actions and the present action, which formulations were all lacking in essential particulars, the core issues were the same, ie whether D’s acquisition of Lot 95 was wrongful, and whether P/Lam suffered loss as a result.
20.In the circumstances, P’s present claim was an abuse of process and was bound to fail. There was also no persuasive reason as to why P could not have included all her allegations in relation to her ownership, use and possession (if any) in respect of Lot 456RP and/or Lot 95 in the 2017 SoC, and there was no explanation forthcoming as to why she had to “reserve” her claim for damages in the sum of $20,000,000 until the present action. I have no hesitation in concluding that the SoC ought to be struck out, and that the present action ought to be dismissed.
IV. RESTRICTED PROCEEDINGS/APPLICATION
21.Yeung noted that although the court dismissed the 2017, 2018 and 2019 Actions with costs to D, it was practically impossible for D to recover such costs from Lam (who was an undischarged bankrupt) and/or from P (who was not ordinarily resident in Hong Kong but in the United States).[11] D was concerned that unless restrained by the court, P would continue to pursue unmeritorious litigation against D who would have to incur substantial legal costs that were practically impossible to recover from P.
22.The dismissal of the 2017 Action and the costs order imposed had not deterred P from pursuing unmeritorious claims. Although P indicated to the court that she would terminate the present action, the very existence of the 2017, 2018, 2019 Actions and the present action spanning several years illustrated real concern that P might continue to abuse the court’s process by seeking to re-litigate failed claims that had been determined against her. It is an abuse of process to re-litigate claims that have been dismissed and subject to the doctrine of res judicata or issue estoppel. D feared P would have incentive to so re-litigate in order to circumvent the restricted application/proceedings orders imposed in the 2019 Action that prohibited Lam from inter alia commencing fresh proceedings in the Court of First Instance, the District Court and the Lands Tribunal concerning any matters involving or relating to or touching upon or leading to the proceedings in the 2018 and 2019 Actions.
23.In Ng Yat Chi v Max Share Ltd & anor, Li CJ said as follows:[12]
“2. It is not difficult to recognise the activities of the vexatious litigant. The person concerned will almost invariably be unrepresented and will pursue abusive proceedings which usually exhibit some of the following features. Hopeless claims are instituted. Totally misconceived appeals are launched. Judgments of the court, both interlocutory and at trial and both first instance and appellate, may not be accepted. There are likely to be attempts, often repeated, to re-litigate the same matters as have already been determined. The materials filed will often be irrelevant, incoherent or scandalous. When present at a hearing, some vexatious litigants are unable to conduct themselves with decorum and may hurl abuse at the opposite parties and/or the judge.
3. Abusive proceedings are oppressive to the other parties and result in unfairness to them. To protect themselves against such proceedings, time, effort and stress are involved and costs have to be incurred. They may be in a weak position to cope. Often, there may be little prospect of recovering the costs incurred.”
I accept that unless P is retrained by restricted proceedings order (“RPO”) / restricted application order (“RAO”), she would continue to commence unfounded actions and applications against D and/or related party(ies) on the same or similar subject matter. It would be a waste of court time and resources to allow such claims to proceed and RPO/RAO would prevent further abuse of the court process.[13] In any event, I agree with Mr Wong that P’s readiness not to continue with the present proceedings clearly showed it could not reasonably be said the RPO/RAO sought would deny her access to the court in respect of the same or similar subject matters.
24.I therefore order that RPO and RAO be imposed against P in the present action on the terms set out in the Schedule to this judgment.
V. CONCLUSION
25.I therefore grant the following orders:
(a) P’s SoC herein be struck out on the ground that the SoC disclosed no reasonable cause of action, or was scandalous, frivolity or vexatious, or was an abuse of the process of the court;
(b) P’s action herein be dismissed.
26.I also grant the RPO and RAO in the Schedule to this Judgment.
27.There is no reason why costs should not follow event. I therefore grant a costs order nisi that P do pay costs of the Summons and costs of the present action (including all costs reserved if any) to D on indemnity basis to be taxed if not agreed.
28.Should P required translation of this Judgment into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to her at the High Court Building at a mutually convenient time. Further, D must serve Chinese translation together with the sealed copy of the orders made herein to P.
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(Marlene Ng) |
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Judge of the Court of First Instance
High Court |
The plaintiff acting in person and absent
Mr Jonathan Wong, instructed by Yeung Law & Co, for the defendant
Schedule
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1.
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P is prohibited from making any further application to court in HCA2513/2017 and the action herein, whether before or after judgment, without the leave of Marlene Ng J (“designated judge”) being first obtained;
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2.
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P be prohibited from commencing any further fresh new legal proceedings by whatever originating process in the High Court or in the District Court or Lands Tribunal concerning any matters involving or relating to or touching upon or leading to the proceedings in HCA2513/2017 and the action herein without the leave of the designated judge being first obtained;
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3.
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all applications for leave to issue an application in the specified proceedings must be made in writing to the designated judge (and not to any other judge or a master) without giving notice of the application to the intended respondent/defendant;
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4.
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in the event that the designated judge is not available to deal with the application for leave under paragraph 1 above, the same should be dealt with by another judge designated by the Chief Judge of the High Court or the Chief District Judge as the case may be;
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5.
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all applications for leave under paragraph 1 above and all ancillary matters thereto should be dealt with on papers and without any oral hearing unless the designated judge otherwise directs;
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6.
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where leave to make the substantive application is granted, service of the order giving leave must accompany service of the substantive application in question, which should be heard by a judge and not a master unless the judge otherwise directs;
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7.
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if contrary to this order, P seeks to issue an application in the specified proceedings without prior leave of the court, the purported application should forthwith be referred by the registry to a master for such application to be dismissed in accordance with this order;
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8.
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if, contrary to this order, P purports to serve on any intended respondent/defendant any application in the specified proceedings without at the same time serving on each of the intended respondents/defendants a copy of an order giving leave to issue such application, such application should automatically stand dismissed, so that neither any intended respondent/defendant nor the court will be required to take any steps in response;
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9.
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all applications for leave under paragraph 2 above be made by P ex parte in writing to the designated judge;
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10.
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at least 7 days before filing any application for leave under paragraph 2 above, P do notify in writing each intended respondent/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 P from any such intended respondent/defendant, P do file a copy of each such response together with the said application for leave;
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11.
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any intended respondent/defendant having notice of such intended proceedings be entitled, but under no obligation, to place before the court written representation regarding the same;
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12.
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all applications made pursuant to the order made herein and any ancillary matters be dealt with by the court on papers and without any oral hearing unless the designated judge should otherwise direct;
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13.
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if P should issue fresh proceedings falling or which may fall within the terms of paragraph 2 above without first seeking the court’s leave, and if such fact should come to the notice of the registrar of the High Court or the registrar of the District Court or the registrar of the Lands Tribunal, 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;
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14.
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notice of each decision of the designated judge made pursuant to the order made herein be given in writing to P and to each intended respondent/defendant named in the fresh proceedings;
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15.
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whether or not any such fresh proceedings are brought to the notice of the designated judge, if a respondent/defendant is served with such proceedings without the relevant documents being accompanied by either a court order giving leave to commence such proceedings or a court direction that leave to commence such proceedings is not required, such respondent/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 of or otherwise responding to such proceedings be deemed extended accordingly.
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[1] the relevant date should be 13 July 2001 (see paragraph 18.3 of the Yeung Aff and paragraph 10(k) below)
[2] Presumably the former Remaining Portion of Stanley Lot No 456
[3] 林永恒是Stanley Lot 456RP業主 v 雋暉有限公司 Win Talent Limited HCA889/2019 (unreported, 4 December 2019)
[4] see para 121 of the Judgment
[5] see para 122 of the Judgment
[6] see Part IV of the Judgment
[7] see Part V(b) and paras 102-123 of the Judgment
[8] see para 126 of the Judgment
[9] see paras 123-125 and 127 of the Judgment
[10] see para 128 of the Judgment
[11] Yeung referred to paragraph 6 of the 2017 SoC in which P pleaded that after she returned to Hong Kong from the United States, she went to Lot 456RP (also known as the 120 Address) and saw the shop at the ground floor and upper floors were occupied (“當業主林雪梅從美國回港後, 去赤柱RP46又名赤柱大街120號, 見地鋪及樓上有人居住”), and to page 2 of the 2017 Aff in which P said she had already emigrated to the United States in 1999 (“原因林雪梅是本人說細妹而當年林雪梅以經移民美國”), and Yeung noted P’s address for service was the same address given by both P and Lam (but such address was not owned by either P or Lam according to the land search records), and the person at P’s address for service told the Process Server she was P’s friend who would pass on the served documents to P (but neither P nor Lam resided there)
[12] (2005) 8 HKCFAR 1
[13] see Practice Direction 11.3
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