林永恒 v. 丁明幗

DCCJ 842/2022

[2023] HKDC 864

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 842 OF 2022

-------------------------

BETWEEN

--------------------------

-----------------------------------

REASONS FOR DECISION

------------------------------------

Introduction

1.This is an application for default judgment by way of Summons dated 28 September 2022.

2.The plaintiff first intended to appear before Deputy District Judge Tony Ko on 31 January 2023. At that hearing, however, the plaintiff did not appear by himself but appointed his friend Mr Cheng Wai Kee (“Mr Cheng”) to attend on his behalf for the reason that the plaintiff, who was at the old age of 77, had suffered a severe stroke in April 2022. Such representation for attendance was disallowed by the learned Deputy Judge, and the hearing was adjourned to be refixed. The defendant was absent in that hearing.

3.The application has been refixed before me today.

4.For the purpose of today’s hearing, the plaintiff submitted a medical certificate dated 2 June 2023 showing that he is now physically and mentally fit to attend the court hearing. He was accompanied by his sister and the said Mr Cheng. As the plaintiff appeared to be having some hearing difficulties, I allowed Mr Cheng to sit next to him, but that was limited to relaying conversation and locating documents. I expressly disallowed any submissions to be made or prompted by Mr Cheng. No McKenzie friend was allowed in the hearing.

5.The hearing proceeded in the defendant’s absence.

6.After having heard the plaintiff’s submissions, I dismissed the Summons and I now give my reasons.

The plaintiff’s case

7.On 28 February 2022, the plaintiff issued the Writ with the Statement of Claim endorsed.

8.The defendant has not filed any acknowledgment of service or defence.

9.On 28 September 2022, the plaintiff asked for default judgment. The court shall give judgment as the plaintiff appears entitled to on his statement of claim (RDC, O 19 r 7).

10.According to the Statement of Claim, the plaintiff pleaded as follows:

(1) The plaintiff was a shareholder and director of a company called Good Ascent Investment Limited (“Good Ascent”), in which the plaintiff held 51% and the defendant held 49% of the shares at the time when it was incorporated on 5 June 2001;

(2) In 2015, the liquidators of Good Ascent informed the plaintiff that, on 22 April 2002, his shares in the company had been transferred to the defendant and one Madam So Pui Ching at 50.99% and 0.01% respectively, and that, on the same day, he had resigned as director; (My emphasis)

(3) Upon reviewing the documents filed in the Companies Registry and other records, the plaintiff discovered that his signature was forged on the relevant document(s) and that the beneficiaries were the defendant and the defendant’s mother (Madam So); and

(4) The plaintiff reported the incident of using false instruments (amongst other criminal matters) to the police but, to date, there was still no progress in the police investigation.

11.The plaintiff claims against the defendant for (1) return of his shares in Good Ascent; (2) reinstatement of his directorship of Good Ascent; and (3) damages for the deprivation of his shares and directorship during the relevant period at HK$2,999,999.

12.The plaintiff said that he particularly kept his claim within the jurisdictional limit of the District Court of HK$3,000,000 and would waive any compensation exceeding such amount.

My concerns

13.Without going into the merits of the application, some matters had raised my concerns.

14.This case is peculiar in that, not only the plaintiff is claiming that a fraud had been practiced on him over 20 years ago, but also it seems the plaintiff would be flexible on the particulars of damages so long as they would not exceed the jurisdictional limit of the District Court.

15.When asked “what were the particulars for the damages of HK$2,999,999,” the plaintiff declined to answer.

16.When questioned why he chose not to take out this action in the Companies Court of the High Court, the plaintiff, again, declined to answer.

17.As stated in his affirmation, the plaintiff was a discharged bankrupt on 11 May 2020 and he said, therefore, he is now free to take out the present action. According to the bankruptcy records (as mentioned in other judgments discussed below)[1], the plaintiff was first declared bankrupt on 25 April 2007 and discharged on 25 October 2011; and was declared bankrupt for the second time on 11 May 2015 and discharged on 11 May 2020.

18.In fact, from my reading of the court records of this case, two matters had come to my attention that raised my concerns. First, Good Ascent was still in the process of a compulsory winding up (since 2010) and liquidators were appointed. Therefore, if there is any dispute as to the ownership of the shares in the company between the plaintiff and the defendant, the liquidators should be informed and have to decide whether to join as Interpleader in the proceedings.

19.Second, and more importantly, there were two restrictive orders being imposed upon the plaintiff by Marlene Ng J at the High Court under the following High Court proceedings:

(1) In HCA 889/2019, on 4 December 2019, a restricted application and restricted proceedings order (RAO/RPO) (for the parts of the RPO, “the 1^st RPO”) was ordered; and

(2) In HCA 1874/2019, on 7 June 2021, a restricted proceedings order (RPO) (“the 2^nd RPO”) was ordered.

20.For the present purposes, only the RPOs are relevant to the current proceedings. I shall consider these RPOs in greater detail.

Restricted proceedings orders (RPOs)

21.The operative part of the RPOs are as follows.

Paragraph 2 of the 1^st RPO (HCA 889/2019) provides:

“2. 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 the Lands Tribunal concerning any matters involving or relating to or touching upon or leading to the proceedings in HCA1180/2018 and the action herein [ie HCA 889/2019] without the leave of the designated judge being first obtained.”

Paragraph 1 of the 2^nd RPO (HCA 1874/2019) provides:

“1. 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 in the Lands Tribunal concerning any matters involving or relating to or touching upon or leading to the proceedings in HCA1361/2018, HCA1253/2020 and the action herein [ie HCA 1874/2019] without the leave of Marlene Ng J (“designated judge”) being first obtained.”

22.Therefore, it is important to consider whether the plaintiff’s claim as shown in the Statement of Claim in the current proceedings “involves or relates to or touches upon or leads to” the proceedings in HCA 889/2019 and/or HCA 1874/2019. If it is the case, the current proceedings would be subject to those RPOs. (For the present purposes, it suffices that this court does not have to consider the other specified proceedings in the RPOs other than the two captioned proceedings).

HCA 899/2019 and the 1^st RPO

23.In HCA 899/2019, the plaintiff (林永恒是 STANLEY LOT 456RP 業主) (sic), being the former owner of Lot 456RP (together with the messuages erections and buildings thereon then known as House No 120 Stanley), claimed against the existing owner (Win Talent Limited) of Lot 95 (in exchange of Lot 456RP and now known as No 120 Stanley Main Street) for the wrongful acquisition of the plaintiff’s 1/2 share of the interest therein as a result of which the plaintiff suffered loss and damages for $50,000,000.

24.In essence, the plaintiff’s complaint in that case was that, when he sold his shares in Lot 456RP to Good Ascent on 13 July 2001, the assignment he signed was somehow flawed. He alleged that he originally intended to sell only 1/2 share of the interest in Lot 456RP, which he acquired from Litmond on 31 May 2000, to Good Ascent for HK$3,000,000; however, the assignment in effect transferred all his interest in that Lot to Good Ascent. He said that he, therefore, should have been a 1/2 share co-owner of Lot 456RP with the remaining 1/2 share being held by Good Ascent. He said that any subsequent transactions (including the Exchange Conditions in 2004 or the mortgagee sale by HSBC to the defendant in 2010) without him being one of the participating parties were void. He said that he did not even receive any consideration whether HK$3,000,000 or at all.

25.The Judge, in hearing the Striking Out Summons filed by the defendant therein, considered on de bene esse basic what the plaintiff stated in his revised draft Amended Statement of Claim[2], which was attached to the 4^th affirmation filed by the plaintiff for the Amendment Summons:

“本人亦會在推翻 [Good Ascent] 的所謂100% 土地擁有權後，進一步推翻2004年10月20日與政府換地契據 (因為政府應該與本人 [P] 及 [Good Ascent] 共3方進行換地。本人 [P] 完全沒有參與，故此換地沒有法律效力。這一連串的法律挑戰，包括2008年3月31日 [HSBC] 成為銀主的按揭契。”

26.After examining the land search records and company search records and considering the confirmations received from the District Lands Office and the Land Registry, the court (Marlene Ng J) accepted and approved the following chronology of events:

(1) By 31 May 2000, the plaintiff had become the sole owner of Lot 456RP (together with House No 120 Stanley thereon) after acquiring the remaining 1/2 share of interest in the said lot from Litmond at HK$2,000,000[3];

(2) On 5 June 2001, the plaintiff and Ting Ming Kwok (same person as the defendant in the present case) (“Ting”) had become the shareholders and directors of Good Ascent, owning 51% and 49% of the shares respectively[4];

(3) On 13 July 2001, the plaintiff sold to Good Ascent Lot 456RP (together with House No 120 Stanley) for HK$3,000,000 (the P/Good Ascent 2001 Assignment)[5];

(4) On 22 April 2002, the plaintiff ceased to be the shareholder or director of Good Ascent and left Good Ascent[6];

(5) On 20 October 2004, Good Ascent surrendered Lot 456RP to the government in exchange for the grant of Lot 95 (after paying HK$630,000 premium to the government – the Exchange Conditions).[7]

(6) From December 2004 until January 2006, Good Ascent charged 120 Stanley Main Street to secure building loans of about HK$5,000,000 from Wing Hang Bank Limited (“WHBL”).[8]

(7) On 31 March 2008, Good Ascent refinanced the WHBL charges with HSBC for a sum of HK$11,000,000, part of which was used to repay the WHBL charges.[9]

27.However, the plaintiff in that case argued that, actually in March 2006 (not 2008), he and Ting, as shareholders of Good Ascent, had visited HSBC’s solicitors (Allen & Overy) for signing the loan documents and the plaintiff had personally given the title deeds of Lot 95 to a lawyer (Mr Li) in Allen & Overy’s office. He alleged that Allen & Overy was negligent in handling the 2006 HSBC Loan (including but not limited to failing to provide him a copy of the loan agreement which Good Ascent made with HSBC in 2006) and that he had never signed the 2008 HSBC Mortgage, which led to the mortgagee sale of Lot 95 by HSBC in 2010 (all of which had become the subject matter of HCA 1874/2019).[10]

28.It is important to note that the court had made the following specific findings of fact. At para 38 of the Judgment (HCA 889/2019),

“38. According to the Companies Registry records, P was a director and shareholder of Good Ascent at the time when he assigned Lot 456RP and 120 Address to Good Ascent (see above paragraph). Indeed, P was a first director of Good Ascent, and a subscriber to its memorandum and articles of association. The other director, shareholder and subscriber was Ting who was also the company secretary. It was only on 22 April 2002 that P ceased to be a director of Good Ascent and was replaced by So Pui Ching (“So”). According to the 1^st annual return of Good Ascent filed on 28 June 2002, P became a shareholder of 5,100 shares (5,099 shares allotted on 5 June 2001 and 1 subscriber share) and Ting became a shareholder of 4,900 shares (4,899 shares allotted on 5 June 2001 and 1 subscriber share) since 5 June 2001, but P ceased to be a shareholder of Good Ascent on 22 April 2002 (when P also ceased to be a director of Good Ascent) by transferring 5,099 shares to Ting and 1 share to So. Thus, P left Good Ascent (whether as director or shareholder) on 22 April 2002.” (Emphasis added)

At paragraph 42 of Judgment,

“42. By reason of the aforesaid surrender of Lot 456RP such that the last owner of Lot 456RP was the government (see the 456RP Records) in exchange for the grant of Lot 95 (see copy printout of the land search made on 24 May 2019 for Lot 95 exhibited to the Yeung Aff, “95 Records”), Lot 456RP ceased to have any legal existence, so although Lot 95 retained the same street number of 120 Stanley Main Street, Stanley, Hong Kong (see the 95 Records) 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 but not both. According to the 95 Records, Good Ascent was the 1^st owner and D was the 2^nd and current owner of Lot 95, and P’s name never appeared in the 95 Records. P’s pleadings and/or affirmation evidence did not reveal any written instrument that evidenced any ownership/title over Lot 95 by P. Bearing in mind Lot 456RP was different and separate from Lot 95, and Good Ascent was different and separate from P, it was plain P had no title, share or interest in Lot 95 or any part thereof.” (Emphasis added)

At paragraph 53 of the Judgment,

“53. But P’s other assertions in paragraphs 50 and 51 above could not be supported and were in fact contradicted by the documents registered at the Land Registry and Companies Registry:

(a) P was not a shareholder of Good Ascent in 2006 and/or 2008 (see paragraph 38 above), and his assertion otherwise in paragraphs 50(a)-(b) and 51 above was wrong. In fact, P ceased to be a shareholder and/or director of Good Ascent on 22 April 2002 (see paragraph 38 above). P’s claim in the Chronology that the Companies Registry records showed he was a shareholder of Good Ascent since 5 June 2001 to date was wrong as such assertion ignored the Companies Registry records referred to in paragraph 38 above.

…

(i) P was pains to emphasise that he and Ting as directors signed the P / Good Ascent 2001 Assignment on behalf of Good Ascent, but it must not be forgotten that P ceased to be director/shareholder of Good Ascent shortly thereafter by 22 April 2002.

…

(l) P claimed in the Chronology that when he went to see Mr Li in March 2006, ‘當時放下[Good Ascent] 地段95號的屋契, 契上有[P] 和[Ting] 兩人董事名’. This is wrong. Good Ascent came into existence upon surrender and exchange in 2004, but by that time P was no longer any director or shareholder of Good Ascent, so P would not have signed as director of Good Ascent (see paragraphs 37-38 above). In 2006, the only title deed for Lot 95 was the Exchange Conditions which were signed by Ting as chairman of the board of directors of Good Ascent. P’s name was not found in the Exchange Conditions.” (Emphasis added)

29.The court also found that the 2006 HSBC Loan referred to by the plaintiff was a term loan facility (unsecured) which was different from the 2008 HSBC Mortgage of Lot 95.[11]

30.It was also the court’s finding that the HSBC Mortgage Action was triggered by the winding-up order made against Good Ascent by Au J (as he then was) (HCCW 625/2009) on 11 January 2010 in which the winding-up petition was presented by Good Ascent’s building contractor creditor.[12]

31.The defendant in HCA 889/2019 (i.e. the existing owner of Lot 95) had acquired Lot 95 through HSBC’s mortgagee sale (HCMP 2367/2010) in 2012 for a consideration of $27,500,000.[13]

32.The plaintiff then challenged that he was not notified of the legal proceedings of the mortgagee sale in HCMP 2367/2010. By reason that the plaintiff ceased to be a shareholder of Good Ascent on 22 April 2002 and was no longer a shareholder or director in 2010, the court found that the plaintiff’s complaint was of no substance.[14] The court further found that the plaintiff had no right to even bring his pleaded claim because his right to sue, being chose in action, would have vested in the Official Receiver upon his being adjudicated bankrupt in 2015.[15]

33.In conclusion, the court held that the plaintiff had no locus standi to bring the HCA 889/2019 action and that the statement of claim disclosed no reasonable cause of action, or was scandalous, frivolous or vexatious, or was an abuse of the process of the court and such claim was being struck out.[16] The plaintiff’s action was dismissed.

34.Having regard to the myriad and unmeritorious complaints made by the plaintiff causing grave concerns to the existing owner defendant,[17] and the then legal action was the 3^rd litigation (after HCA 2513/2017 and HCA 1180/2018) that the existing owner was sued on the same or similar subject matter,[18] the court ordered that RPO/RAO (ie the 1^st RPO) be imposed against the plaintiff.

HCA 1874/2019 and the 2^nd RPO

35.In HCA 1874/2019, the plaintiff (林永恒) claimed against the defendant (Allen Overy 律師行) (sic), the solicitors representing HSBC in handling the 2006 HSBC Loan and the 2008 HSBC Mortgage, for using fraudulent means to obtain the building erected at No 120 Stanley Main Street. The plaintiff claimed loss and damages for, inter alia, value and rent from 2010 to 2019 of about $110,000,000.

36.On 6 November 2020, Master J Wong, upon hearing the plaintiff and the defendant Allen & Overy solicitors (“A&O”), stuck out the plaintiff’s statement of claim indorsed on the Writ filed on 11 October 2019 and dismissed the plaintiff’s claim.

37.On 3 November 2020, A&O filed a summons for restricted proceedings order (RPO) against the plaintiff as there were also 2018 Action and 2020 Action taken out by the plaintiff targeting A&O and A&O’s former employers for negligence and fraudulent action. A&O was concerned that the RAO/RPO ordered under HCA 889/2019 might not sufficiently address the allegations in the 3 actions then against A&O and its former employees.[19]

38.At the hearing on 31 May 2021, the court (Marlene Ng J) made the following findings of fact:

At paragraph 57 of Judgment (HCA 1874/2019),

“57. As explained in paragraph 91 of the Judgment [HCA 889/2019], ‘since 2001/2002 or at the latest since 2004, P had no title, share or interest in Lot 456RP. Indeed, P could not have any present title, share or interest in Lot 456RP which had no present legal existence. There was no arguably credible basis for P to assert …… he was still owner or part owner of Lot 456RP ……’ Likewise, P never had any interest in Lot 95 as he had ceased to be the owner of Lot 456RP in 2001 and he had left Good Ascent by 2002 before Lot 95 came into existence in 2004 by land exchange. In my view, P had no reasonable cause of action herein to sue for the reliefs in paragraph 2(l)(i)-(iv) above. Further, by virtue of the mortgagee sale of Lot 95 by HSBC as mortgagee to Win Talent as purchaser, any title or interest P might have had in Lot 95 (which I disagree) would have been extinguished under sections 52 and 53(1)(a) of the CPO (see paragraphs 95-97 of the Judgment). Master J Wong rightly struck out P’s claim against A&O.” (Emphasis added)

39.The court continued to have found that “it was evident from the above analysis that the subject matter of P’s claim against A&O in the present action had been previously raised by him in earlier litigation, including the 2019 Action [ie HCA 889/2019] and other actions referred therein. Plainly, P intended to pursue the present action as well as the 2018 and 2020 Actions covering the same or similar subject matters, which were directed at A&O and their former employees Li and Chan as defendants. In my view, none of the matters raised by P had any merit. But such multifarious and unmeritorious complaints and litigation by P, and such repeated legal actions against A&O and/or their former employees served to add weight to the concern that unless restrained P would continue to vex others (including A&O, Li and Chan) with his unmeritorious complaints and claims.”

40.The court ordered the RPO, namely the 2^nd RPO, against the plaintiff.

Interpretation of RPOs

41.The proper approach for the interpretation and application of RAOs and RPOs was set out in para 14 of Practice Direction 11.3:

“14. Attention is drawn to paragraph 121 of Ng Yat Chi where, in relation to the interpretation and application of RAOs and RPOs, the Court has stated that regard should be had to the substance of the proposed applications or proceedings and not merely to their form. Accordingly:

(1) Collateral attacks made outside the proceedings covered by an RAO may in substance be merely a device to re-open without justification some matter already determined in those proceedings or otherwise an abuse of the process in respect of those proceedings and, if so, may be treated as applications within those proceedings, caught by the RAO.

(2) Where new proposed proceedings involve new elements or parties not found in the concluded proceedings referred to in the RPO, but are nevertheless in substance merely an unjustified attempt to re-litigate those proceedings, such proposed proceedings may be treated as falling within the RPO.”

42.See Ng Yat Chi v Max Share Ltd and another (2005) 8 HKCFAR 1, [2005] 1 HKLRD 473 per Ribeiro PJ at para 121,

“121. In construing the terms of a Grepe v Loam order or an extended order and applying it to any fresh application or proceedings brought by the vexatious litigant, the court should look to the substance of what is sought to be done in the new matter and not to its form. Thus, it is not uncommon for some collateral attack to be launched by vexatious litigants in the course of proceedings, for instance, by making unfounded allegations of perjury in relation to an affidavit or trying to commit the other side’s lawyers for contempt, and so forth. A judge would be justified in treating such unfounded collateral attacks as in substance applications within the same proceedings for the purposes of a Grepe v Loam order, whatever their form. As already indicated, new proceedings, even if embellished with additional elements, may in substance be a vexatious attempt to re-litigate the concluded matter.”

43.Therefore, it is paramount for the court to identify any collateral attacks made outside the proceedings covered by an RAO and any new proposed proceedings involving new elements or new parties which would be in substance merely an unjustified attempt to re-open those matters already determined or re-litigate those proceedings, or otherwise an abuse of the process of the court.

The parties covered by the RPOs

44.I have specifically considered the following question: whether the defendant in the current proceedings has to be the same defendant in the specified proceedings (or someone related to such defendant) to which the RPOs were granted. My question stemmed from paragraph 118 of Ng Yat Chi per Ribeiro PJ:

“118. Secondly, a rule or direction should be in place providing that if any fresh proceedings served on defendants protected by an extended order are unaccompanied by either a court order giving leave to proceed or a direction that leave is not required, such defendants are entitled to do nothing in response until such time as they are notified of the court’s decision in relation to those fresh proceedings. Time for acknowledging service and defending the proceedings should automatically be deemed to be extended until such notice is received.” (Emphasis added)

45.In Ng Yat Chi, Chief Justice Li, at paragraph 11, made observations that that an extended order (an RPO) is capable of protecting persons who were not parties to the original proceedings:

“11. The focus of an extended order is on a defined class of proceedings which is prohibited without leave. The class should be defined with clarity. Its permissible scope is laid down in Mr Justice Ribeiro PJ’s judgment. That being its focus, an extended order is capable of protecting persons who were not parties to the original proceedings in which the extended order was made. If after the order was made, fresh proceedings are instituted against such persons, they would be protected by the extended order if the proceedings fall within the defined class.” (Emphasis added)

46.Accordingly, I found the defendant in the current proceedings was covered or protected by the RPOs.

47.As for the plaintiff, the name of the plaintiff was styled differently in HCA 889/2019 in which the 1^st RPO was granted. By way of written directions (para 4) dated 22 September 2020 given in HCA 1253/2020 (one of the actions commenced after the making of the 1^st RPO, but later being specified in the 2^nd RPO) (the 2020 Action), the court ordered that: -

“4. The [RAO/RPO Order] is binding on the plaintiff (whether styled in his own name or as ‘林永恒是STANLEY LOT 456RP業主’).”

48.Therefore, the plaintiff would also be covered by the 1^st RPO even if he is suing in his name. There is no question of the plaintiff’s identity in respect of the 2^nd RPO.

Collateral attacks and re-litigation

49.In the current proceedings, the plaintiff has filed 2 affirmations, on 29 September 2022 and 20 January 2023 respectively, in support of his Summons. In both affirmations, the plaintiff complained that his signature was forged on the Minutes of Directors’ Meeting of Good Ascent dated 22 April 2002 (which approved the transfer of shares and the plaintiff’s resignation as director) and his letter of resignation as director dated the same. However, it is also clear from the evidence that these alleged forged documents had been provided by the Liquidator (Deloitte) to the plaintiff in 2015 already (see Plaintiff’s 2^nd affirmation’s Exhibit ‘LWH-8’ Deloitte’s letter dated 12 February 2015 with enclosures). It is important to note that such allegation of forged signature had never been raised in HCA 889/2019, HCA 1874/2019, or any other proceedings before.

50.The court in the captioned proceedings had already made specific findings that “the plaintiff had ceased to be a shareholder and/or director of Good Ascent since 22 April 2002 and that the plaintiff could not be a shareholder of Good Ascent since 5 June 2001 to date” (see Paragraphs 28 and 38 above).

51.When the plaintiff had failed to challenge the P/Good Ascent 2001 Assignment, he now changed to attack the constituents of Good Ascent.

52.The relief the plaintiff claimed in the present proceedings is in effect seeking to invalidate all transactions which Good Ascent had entered into since 22 April 2002 (including the Deed of Surrender, the Exchange Conditions, and the term loan facilities and Mortgage with HSBC). By obtaining a declaration in the District Court that he would have been the shareholder and director of Good Ascent to date, the plaintiff would be able to re-litigate those proceedings in which the High Court had already decided that he had no interest in all the transactions after 22 April 2002 and that he had no locus standi to get involved into those transactions.

53.It is my view that the plaintiff in the current proceedings is seeking to re-open matters already considered determined in HCA 889/2019 and HCA 1874/2019, and the current proceedings are tantamount to a collateral attack on the dismissal of those actions and subject to res judicata.

54.Having considered the plaintiff’s Statement of Claim, affirmations and submissions, I found that the plaintiff’s claim for a reinstatement of his shareholdings and directorship of the Good Ascent since 22 April 2002 in the current proceeds is a matter “involving or relating to or touching upon or leading to” the proceedings in HCA 889/2019 and HCA 1874/2019. It would be caught by both the 1^st RPO and the 2^nd RPO.

Directions

55.In my decision, I have considered that the current proceedings (DCCJ 842/2022) have been caught by the RPOs and, however, I believe my jurisdiction can only reach thus far. It would then be prudent for this court to refer the current proceedings to the High Court, particularly to the designated judge for further consideration. Paragraph 13 of the 1^st RPO and paragraph 6 of the 2^nd RPO provide:

“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;”

It would be for the designated judge to decide whether the current proceedings should be permitted to continue or should be dismissed under the RPOs.

56.I hereby direct the Registrar of the District Court to refer the current proceedings to the designated judge at the High Court for decision pursuant to the abovementioned paragraph 13 and paragraph 6 of the respective RPOs.

57.I make the following Directions:

(1) In breach of paragraph 2 of the RAO/RPO dated 4 December 2019 in HCA 889/2019 and paragraph 1 of the RPO dated 7 June 2021 in HCA 1874/2019, the plaintiff failed to seek leave of the designated judge at the High Court before he commenced this action; and

(2) Pursuant to paragraph 13 of the said RAO/RPO and paragraph 6 of the said RPO, this action be referred to the designated judge at the High Court (or any High Court judge if so designated) for decision as to whether this action should be permitted to continue or should be dismissed.

Summons for default judgment

58.Whilst the determination as to whether the current proceedings (the main action itself) be allowed to continue is pending, this court has jurisdiction to dismiss any interlocutory summons where there were procedural flaws.

59.I dismissed the Summons on the strength of paragraph 15 of the 1^st RPO and paragraph 8 of the 2^nd RPO that, whilst the plaintiff being an RPO litigant subject to the RPOs, the Summons was taken out prematurely. The two paragraphs in the RPOs are identical and provide as follows:

“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.”

60.According to the above provision, the plaintiff was required to serve with the proceedings the Writ of Summons being accompanied by either a court order giving leave to commence the proceedings or a court direction that such leave was not required. Obviously, the plaintiff had not done so and the service of the Summons subsequent to that impermissible service of Writ (without leave) would be invariably invalid.

61.It is also provided in that paragraph of the RPOs that the defendant was entitled not to respond to such service, and the time for acknowledging service was deemed extended pending notification of the court’s decision. As the time for the defendant to file the acknowledgment of service has not yet materialized, the Summons for default judgment under O19 r 7 was taken out prematurely and ought to be dismissed.

62.Additionally, after the plaintiff obtained leave or direction, he still has to re-serve the Writ accompanied by such court order or court direction to the defendant. In default, any summons that jumped the gun would be an irremediable nullity.

63.For these reasons, I dismissed the plaintiff’s Summons dated 28 September 2022 with no order as to costs.

Conclusion

64.The Summons dated 28 September 2022 was dismissed with no order as to costs.

65.Directions so ordered.

The plaintiff, acting in person and present

The defendant was not represented and did not appear