Leung Kit Hing, Doris v. Secretary for Justice

CAMP 62/2021, [2023] HKCA 1308

On Appeal From [2021] HKCA 1050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 62 OF 2021

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BETWEEN

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A. INTRODUCTION

1.As set out in the judgment (“the Judgment”) of this court (Poon CJHC, Lam VP and Au JA) dated 21 July 2021 ([2021] HKCA 1050), the applicant herein is a vexatious litigant.

2.By the Judgment, the court dismissed various and multiple summonses, notices of appeal and a notice of motion that had been brought by the applicant under different sets of proceedings.  The Secretary for Justice (“SJ”) was further joined as a party to the relevant proceedings to advance submissions on whether relevant orders to prevent further abuse of process should be made against the applicant.  The court further decided to impose a Restricted Applications Order (“RAO”) and a Restricted Proceedings Order (“RPO”) on the applicant, and she was ordered to pay the costs in the RAO and RPO applications incurred by the SJ[1].

3.To put the present application in context, it is useful to recite the matters that were dealt with by the court in the Judgment as set out at [1] - [16] as follows:

“1. CAMP 153/2020 was an application brought by Leung Kit-hing, Doris (‘Doris Leung’) by a summons dated 4 September 2020 to set aside a bankruptcy petition and proceedings brought by the Legislative Council Commission against Mr Leung Chung Hang, Sixtus (‘Mr Leung’) in HCB 5651/2020. Doris Leung claimed to be a relative of Mr Leung.

2. In a judgment handed down on 6 November 2020 [2020] HKCA 893, this Court struck out Doris Leung’s summons dated 4 September 2020 as an abuse of process.

3. In the same judgment, it was further observed that Doris Leung had made numerous unmeritorious applications to courts in respect of litigations involving Mr Leung in which she herself was not a party.

4. These included proceedings against Mr Leung for recovery of remunerations in DCCJ 4497/2017, criminal proceedings against Mr Leung in KCCC 2035/2017 and bankruptcy proceedings against Mr Leung in HCB 5651/2020. She also made some satellite judicial review applications in her own name in HCAL 1140/2017 and HCAL 419/2018 in respect of steps taken in KCCC 2035/2017 and in HCAL 1016/2017 in respect of the by-election to fill the vacant seats in the Legislative Council after the disqualification of Mr Leung. All these applications were struck out as abuse of process and she took out unmeritorious appeals. After her appeals were dismissed, she unsuccessfully sought leave to appeal to the Court of Final Appeal. Her applications were invariantly ill-formulated, unfocused and incoherent. As such, the courts had to spend valuable and substantial judicial resources to process her vexatious proceedings and applications. Such resources could and should be better deployed for other matters.

5. In the circumstances, the Court had to consider whether steps should be taken by way of Restricted Proceedings Order (‘RPO’) and/or Restricted Application Order (‘RAO’) to curtail Doris Leung’s persistent abuses of the court process.

6. Therefore, the Secretary for Justice (‘SJ’) was joined as a party to these proceedings to advance submissions on whether an RAO or RPO should be made against Doris Leung arising from matters or litigations involving Mr Leung.

7. Doris Leung lodged submissions on 20 November 2020 opposing the making of RAO or RPO against her.

8. Written Submissions for the SJ with proposed terms of the RAO and RPO were lodged on 14 January 2021. In those submissions, there is an Annex setting out the chronology of events related to the proceedings of Doris Leung. We found the chronology accurate and useful for present purposes. The chronology is attached to this judgment as an Annex (see Annex 1).

9. Doris Leung filed an 3rd affidavit in CAMP 153/2020 on 8 February 2021 exhibiting her submissions in opposition.

10. By a letter dated 21 January 2021, the SJ informed the Court that Messrs Lo & Lo, solicitors for the Legislative Council Commission (‘the LCC’) in HCB 5651/2020 informed them that since the lodging of her written submissions, Doris Leung had commenced a number of proceedings in relation to matters set out in the proposed terms of the RPO and RAO. As such, the SJ requested leave from this Court to lodge and serve supplemental submissions on RPO and RAO within 14 days of the order and Doris Leung to reply within 14 days thereafter.

11. On 1 February 2021, this Court granted the leave sought by the SJ. Supplemental submissions with amended proposed terms of the RAO and RPO were lodged on 10 February 2021 by the SJ.

12. Instead of filing submissions in opposition to the supplemental submissions, Doris Leung filed a new application in CAMP 62/2021 on 19 February 2021 seeking to set aside the supplemental submissions and the proposed terms of the RAO and RPO. She amended the summons on 25 February 2021. As far as we can gather from the very confusing contents of the amended summons, the relief she sought were still directed against the supplemental submissions of the SJ.

13. On 11 March 2021, this Court handed down another judgment in [2021] HKCA 259 dismissing Doris Leung’s various applications made under CACV 115/2020, CAMP 124/2020, CAMP 170/2020 and CAMP 178/2020.

14. In that judgment, this Court made an interim order restraining Doris Leung from filing any proceedings and applications in the Court of Appeal on matters arising from proceedings involving Mr Leung pending determination on RPO and RAO. If Doris Leung insisted on filing such proceedings or applications, they would be expunged from the court files with a direction that she can collect the same within 7 days, failing which they would be disposed of without being read by the Court.

15. Before the making of the interim order, there were also a number of outstanding applications made by Doris Leung.

16. In this judgment, we shall address the same by reference to the following matters:

(1) Whether or not an RAO/RPO should be made against Doris Leung;

(2) The summonses dated 19 and 25 February 2021 filed by Doris Leung under CAMP 62/2021 (‘the February Summonses’);

(3) The summons filed by Doris Leung on 27 October 2020 and 18 December 2020 under CAMP 196/2020 (‘the October and December Summonses’)

(4) The summonses dated 6 and 13 November 2020 filed by Doris Leung under CAMP 153/2020 (‘the November Summonses’)

(5) The notice of motion filed on 11 November 2020 filed by Doris Leung under CAMP 153/2020; and

(6)  The notice of appeal and the amended notice of appeal filed on 11 January 2021, the supplementary notice of appeal filed on 12 January 2021, the two amended notices of appeal filed on 21 January 2021 and 16 April 2021, the summons filed on 11 January 2021 and the amended summons filed on 21 January 2021 under CACV 8/2021; and the notice of appeal filed on 11 January 2021, the two amended notices of appeal filed on 11 January 2021 and 16 April 2021, and the summons filed on 11 January 2021 in CACV 9/2021.”

4.After the handing down of the Judgment, respectively on 4 August 2021, 12 August 2021, 8 September 2021 and 16 September 2021, the applicant lodged various purported notices of motion seeking to appeal to the Court of Final Appeal effectively from all the matters decided under the Judgment.  However, those purported notices of motion were defective for various reasons such as covering more than one appeal in one notice, being a photocopy document and being unreadable and unintelligible.  On 10 August 2021, 27 August 2021 and 29 September 2021, the Registrar of Civil Appeals (“RCA”) respectively gave directions to the applicant requiring her to lodge a properly formulated notice of motion under each of the various sets of proceedings which she intended to seek leave to appeal from.

B.  THIS APPLICATION

B1.  The Notice of Motion

5.On 6 April 2023, the applicant issued the present Notice of Motion in CAMP 62/2021 (which was one of the matters dealt with in the Judgment[2]) for leave to appeal to the Court of Final Appeal out of time (“Application”).  The Notice of Motion is handwritten and the majority of it is illegible and incomprehensible.

6.In the header of the first page of the notice of motion, after “CAMP 62 of 2021 (on appeal from)”, the applicant wrote “All lower courts proceedings and appeal on DOJ’s S.J.’s submission of 14 Jan 2021 and 10 Feb. 2021 in CAMP 153/2020 and other proceeding...”.  In her submission dated 19 May 2023, she asked the Court of Final Appeal to “rectify the irregularities of CFA and CA... and to set-aside RAO/RPO imposed and set-aside all costs incurred in RAO and RPO and to appeal on substantial appeal and to appeal on related costs in CAMP 114/2020, CAMP 177/2020, CAMP 153/2020, CAMP 196/2020, CACV 8/2021, CACV 9/2021, CAMP 62/2021 and in the inter-related proceedings... and all related costs...”.

7.The applicant has been again informed by the RCA on different occasions that she must lodge a separate notice of motion for each of her intended appeals.  The applicant has not done so.

8.After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

B2.  Discussion

9.The Notice of Motion is taken out under CAMP 62/2021.  In the premises, in this judgment, we will only deal with the Notice of Motion in relation to only those issues that concern CAMP 62/2021.  We will not deal with any other issues that are not related to CAMP 62/2021. In this respect, the court dealt with CAMP 62/2021 at [87] - [89] in the Judgment as follows:

“87. We can quickly dispose of the February Summonses in CAMP 62/2021. The relief sought was to set aside the supplemental submissions of the Secretary of Justice which were lodged on 10 February 2021 pursuant to the directions of 1 February 2021.

88. The court does not have the power to set aside the submissions of a party lodged pursuant to the directions of the court. Insofar as Doris Leung attempted also to challenge the direction of 1 February 2021, we cannot see any valid ground for doing so.

89.  The summonses in CAMP 62/2021 are dismissed.”

10.The applicant has also lodged a typed document dated 2 May 2023 in support of the Notice of Motion containing her intended grounds of appeal.  This document is however similarly largely incomprehensible.  Insofar as they can be understood and relate to CAMP 62/2021, the grounds of appeal raised by the applicant are these:

(1)  The SJ’s submission filed on 14 January 2021 and 10 February 2021 contained errors and this caused the Judgment to be in error as well;

(2)  The applicant was not guilty of delay in bringing her application for leave to appeal to the Court of Final Appeal.  In any event, both the court and the SJ had been alerted to her intention to seek leave to appeal; and

(3)  The RAO and RPO should not have been imposed on her.

11.On 19 May 2023, the applicant further filed a written submission where she contended that:

(1)  the application has merit and the support of the police, it also involves public interest because the Application “set good example to all citizens-, disputes can sort out in courts... instead of protest in street” or commit suicide (pages 1 and 5); and

(2)  the applicant was not in fact out of time in bringing the Application, one of the reasons being that after the Judgment was handed down, she spent a “few weeks dealing court’s direction to the ‘Statement of cost’...[she] did file ‘Notice of Motion’ in respect of appeal to CFA many times [and that the Court of Appeal was wrong for requiring separate notices of appeal]”.

12.The SJ has filed his skeleton submissions dated 1 June 2023 to oppose the Application.

13.In her reply submissions dated 7 June 2023, the applicant complained that she did not receive SJ’s submissions as of the date of her reply submission and that she was only able to copy “half” of the bundle of documents relied on by the SJ from the registry in High Court by the time she prepared the reply submissions.  She also reiterated the matters raised in the written submissions dated 19 May 2023, including her intention to appeal “all related proceedings being mishandled in lower courts”.

14.The applicant further submitted that:

(1)  The Notice of Motion is of “great public importance... [because the] applicant represent in rights to be elected and rights to elect the legco members...and Applicant herein represent a class of voters, in particularly, the finance voters, bankers...”.

(2)  As for delay, the applicant “filed and served... on all parties on “4 August 2021 re Notice of Appeal – Form A and Form B” and her appeal against Master Wong’s decision on all parties and there had been “No Objections 14 days upon service from 4 August 2021 and 15, 18 October 2021”.

15.We will first consider the applicant’s complaint that she did not receive the SJ’s submissions for the Application.  In this respect, it is noted that in support of this complaint, on 3 July 2023, the applicant also filed a purported “Notice of Appeal” of the same date seeking to “appeal” against the “decision” of the RCA given on 15 June 2023.  The “decision” is in fact the RCA’s directions that, given that the parties had respectively lodged all their written submissions (including the applicant’s reply submissions) in accordance with her earlier directions, the Notice of Motion would be referred to the Court of Appeal for determination on paper.  In this purported “Notice of Appeal” and her affidavit dated 4 July 2023[3], the applicant asserted that service is not the same as “receipt”.

16.There is nothing in this complaint. The SJ has filed an affirmation of service dated 12 June 2023[4] confirming that the relevant written submissions, list of authorities and statement of costs have been served on the applicant by posting the same to her address as stated on the Notice of Motion on 1 June 2023.  There is no suggestion that these have been returned.  There is therefore proper service and the applicant is deemed to have received them.  The applicant’s assertion that service is not the same as “receipt” is not only purely argumentative, but also plainly frivolous and totally without merit.

17.We now turn to consider the merits of this Application.

18.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

19.Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  A proper Notice of Motion was only filed on 6 April 2023, over one year and eight months after the date of the Judgment (ie, 21 July 2021).  Clearly, there has been significant delay by the applicant in taking out her application for leave to appeal to the Court of Final Appeal.

20.Although the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

21.The applicant submitted that she was not in fact guilty of delay because she had promptly filed a notice of motion on 4 August 2021.  However, that notice was defective because it sought to bring applications for leave to appeal against different set of proceedings.  In any event, the applicant did not give any explanation for not lodging a proper notice of motion at an earlier time after being repeatedly informed by the RCA to do so.  We therefore do not accept that there was any good reason for the serious delay.

22.More importantly, the Application does not meet the requirements of section 22(1) of the HKCFAO.

23.As shown above, CAMP 62/2021 relates to summonses taken out by the applicant to set aside the supplemental submissions of the SJ which were lodged on 10 February 2021 in relation to the RAO and RPO applications.  The facts and issues raised in CAMP 62/2021, as well as this court’s reasons for dismissing the applicant’s summonses, are set out in the Judgment as quoted above.  They are clearly fact and case-sensitive. We therefore do not accept that the Application involves any great general or public importance.  In any event, there is no merit in the intended appeal as the applicant has failed to point to any error with particularities in the court’s reasons in the Judgment in dismissing CAMP 62/2021.

24.We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

B3.  The applicant’s subsequent affidavits and applications

25.It is further noted that the applicant has by way of two affidavits respectively dated 9 and 10 November 2023 applied for “extension of time” in asking this court not to hand down or make any decision under the Notice of Motion purportedly by reason of her complaints about the conducts of a legal aid counsel (and her supervisor).

26.The purported matters mentioned in these affidavits do not have any material impact on or relevance to on our discussions above on the merits of the Notice of Motion.  We refuse the applicant’s request.

C.  DISPOSITION

27.For these reasons, the applicant’s intended appeal has no merit at all and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.

28.Costs should follow the event.  The SJ in his statement of costs dated 1 June 2023 has asked for the sum of $16,853.

29.The Application is plainly without merit and, given the history set out above, is an abuse of process.  The applicant should bear the costs of the SJ on an indemnity basis, which is summarily assessed in full at $16,853.  We therefore further order that the applicant shall pay the costs of the Application to the SJ in the sum of $16,853.

The applicant acting in person

Jacqueline Hung, Senior Government Counsel (Ag), of the Department of Justice, for the putative respondent