Iqbal Hussain Khan v. A.J. Schouten

HCA002579/1974

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 8th February, 1975.

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DECISION

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1. There are five summonses before me in relation to five separate actions in which the plaintiff is Iqbal Hussain Khan and the defendants are various Public Officers - one being the Attorney General.

2. I shall refer to the several actions by their respective numbers for the sake of convenience. These are:-

3. The several summonses before me, and I dealt with all the actions at the same time for reasons which will become apparent, are in identical terms (other than dates) and are

"for an order that the Statement of Claim filed (in those actions) be struck out on the ground (sic) that:-

4. Patrick Yu, Esq., appeared for all the defendants instructed by the Attorney General and the plaintiff was in person.

5. The arguments of Mr. Yu relate to all the actions with one reservation that O.J. 2362/74 may well disclose a good cause of action, to which Mr. Yu says there is a good defence, in respect of libel.

6. Before dealing with the arguments advanced I wish to advert to one matter which took place at the start of the proceedings. Mr. Yu made an open offer across the Chambers table to the effect that if the plaintiff were to unconditionally withdraw all five actions he would not ask for any costs of those action nor of the appearance in Chambers. He approached this position with caution - and may I say his usual fairness - in the light of the unrepresented state of the plaintiff.

7. The offer was explained to the plaintiff by myself, Mr. Yu having suggested that I should consider doing so, and it was pointed out to him that this was simply a suggestion of settlement as between the parties and it was entirely a matter for the plaintiff whether he accepted such settlement or not. It was further explained to him that the offer was made in the light of the opinion formed by Counsel that the actions had little chance of success in view of the Judgment of Cons, J. in O.J. Action 2683 of 1971, in which Mr. Khan was the plaintiff and the Attorney General the defendant, and in which the declarations and remedies sought by the plaintiff were refused by the learned Judge and costs were given against the plaintiff. I then adjourned for a short period to allow the parties to consider the offer amongst themselves - this at the suggestion of Mr. Yu and the desire of Mr. Khan - but no agreement was reached and the matter then proceeded.

8. In the light of certain press reports which have appeared since the adjournment of these several summonses and the delivery of this decision upon them I think it should be made clear that the offer in no way concerned with the defendant's bill of costs in O.J. 2683/71 which await taxation and subsequent payment.

9. Further, resulting from the publicity given this, a Chambers matter, I thought it right to change my original order that this decision would be handed down and to recall the parties for the purpose of delivering this decision directly to them. I had desired to give this decision out of the confidentiality of Chambers, and the delay in the delivery of it is occasioned by researches into this aspect. However, I can find no authority which permits a Registrar to move into open court - he having no court to move into - though if the parties agree, and I shall hear them on this at the conclusion, I have no objection to this decision being published.

10. Now to the arguments adduced, and may I say at once that the plaintiff arguments were general ones on the basis that all he sought was justice and that costs were of no real account. As he said, he had no authorities to cite to me.

11. It is the basic argument of Mr. Yu that the reliefs sought by the plaintiff in these five actions, with the exception of the libel claim in O.J. 2362/74, are res judicata in that the very same reliefs have been adjudicated upon and have been refused. He bases his contention on paragraphs (a), (b) and (d) of O.18 R.19 of the Rules of the Supreme Court and has referred me to Drummond - Jackson V.B.M.A. [1970] 1 All E.R. 1094 at pages 1100 and 1101 and the Judgment of Lord Pearson in the course of which he said:-

"Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases. The authorities are collected in the Supreme Court Practice 1970 [now 1973] under the heading of "Exercise of Powers under this Rule" in the notes under O.18 R.19."

12. He further went on:-

13. He thought "reasonable cause of action" to mean "a cause of action with some chance of success" when only the allegations on the pleadings are considered. If, when those allegations are examined, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out.

14. I was also referred to Rachael v. McGrath 14 A.C. 665 which counsel submitted is very close to the instant case and wherein it was held by the House of Lords

"that there was an inherent jurisdiction in the Court to strike out the statement of defence as frivolous and vexatious and an abuse of procedure, and to enter judgment for the plaintiff ....."

15. I do not think it necessary to canvass the facts of this well known decision but merely to refer to the principle therein enunciated. It of course applies equally to the striking out of a statement of claim.

16. I bear in mind also Greenhalgh v. Mallard [1947] 2 ALL E.R. 255 on the question of res judicata where the argument before the Court of Appeal was similar to that adduced here by Mr. Yu. He relied on res judicata but should there be any doubt about that he further relied on the proposition that it would be vexatious and an abuse of the process of the Court to allow the matter to be brought before the Court again on the basis of the several statements of claim.

17. In Greenhalgh Somerville L.J. (at p. 257 H) had this to say of the first limb of the argument:-

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is actually asked to decide but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them."

The learned Lord Justice then went on to refer to Green v. Weatherill (4) [1929] 2 Ch. 221 in which Maugham, J. quoted the observations of Wigram V.C. in Henderson v. Henderson (1) 3 Hare 114.

18. In our jurisdiction Leonard, J., A.J. Action No. 66 of 1974 unreported, in which judgment on an application by way of motion under O.18 R.19 - the provisions prayed here - was given on 31st January, 1975, had this to say of the quoted passage from Somerville L.J.:-

"I could not cavil at that oft quoted passage from the judgment of Somerville L.J. and at this stage merely pause to refer to his reiterative use of the words "so clearly"; for what he is there saying is that there is an extension of the doctrine of res judicata to cover issues the relitigation of which would be an abuse. He is not enlarging the concept of abuse but that of res judicata."

19. Having as best I can stated the law I think to be applicable, I now go on to look to the pleadings both in the several actions before me and in the decided case O.J. 2683/1971.

20. In that last the indorsement of claim on the Writ is as follows:-

"The plaintiff claims

21. These were further prayed in the Statement of Claim filed on 3rd February, 1972, and it is noteworthy that paragraph 8 of the Statement of Claim - and the plaintiff was legally advised at this juncture - reads, inter alia:-

"On or about the 6th December, 1968, the plaintiff was informed in writing by the Commissioner of Police that his application referred to in paragraph 7 above [that is his application for an interview] was refused pending the investigation of certain allegations made by the plaintiff to the Anti-Corruption Branch of the Hong Kong Police Force ........."

and that is the only reference to "corruption" in the plaintiff's pleading.

22. On the 12th November, 1973, I gave a decision on a Notice of Application for Further Directions where I said (at page 5):-

"....... and I have formed the view on the balance of the argument, having looked at the pleading having noted that corruption does not form a basis of the plaintiff's case ........."

23. On appeal from ...(illegible) general decision McMullin, J., who delivered his Judgment in open court on 7th March, 1974, had this to say on the issue of "corruption" at page 3:-

"What is of special interest in these pleadings, having regard to the nature of the interlocutory proceedings now before this Court, is that nowhere in his Statement of Claim does the plaintiff claim anything more than that he has not been given the reason for his reversion and has not been accorded an opportunity of defending himself against any charges which may have been levelled against him and which may have resulted in his fall in rank. Although mention is made in paragraph 8 of the Statement of Claim of the fact that he had made allegations to the Anti-Corruption Branch of the Police Force, this is stated only as an introduction to the complaint that he was refused an interview with the Commissioner pending the result of investigations instituted consequent upon his allegations. Not only is no detail of these allegations given; it is not stated or even suggested that his reversion in rank was the result either of the acts of corruption which he alleged or of the fact that he had made such allegations."

24. The plaintiff ...(illegible)as, at that period, advised by both Counsel and Solicitors.

25. On the 4th April, 1974, the plaintiff filed a Notice to Act in person and from then on he represented himself; as indeed he now does in these proceedings.

26. On the 11th June, 1974, the plaintiff filed an Application to set down for trial, O.J. 2683/71, and the trial of that action commenced on the 30th October, 1974. The Statement of Claim before the learned trial Judge remained as it was in March. The plaintiff has accepted that he received all his papers back from his erstwhile Solicitors on 4th April, 1974.

27. On the 15th November, 1974, Cons, J. gave Judgment refusing to grant the declarations sought.

28. Moving on to he Statements of Claim in actions I am now considering but leaving aside for a moment O.J. 2362/74 - the libel action.

29. In O.J. 2504/74:-

30. In this action the Statement of Claim is endorsed on the Writ which was issued on the 17th October, 1974 and there is a further lengthy document headed "Affirmation" dated 18th January, 1975 which I take to be an attempt at a form of separate Statement of Claim. What is claimed on the Writ - and in the Affirmation - is "Since there is no other remedy the plaintiff begs to the Honourable Court for justice and any other relief whatever the Honourable Court may deem fit".

31. This claim is based on allegations that the defendants, Mr. Morrin and Mr. Tidey, have "committed 1. Conspiracy to defeat the ends of justice, 2. Forging of documents, 3. Tendering of forged documents though they were before the learned Crown Counsel Mr. Thompson". There are also allegations of the destruction of documents.

32. There may or there may not have been a conspiracy to defeat the ends of justice - it must be remembered that I am looking only to the pleadings and viewing them in the light of whether or not they show a cause of action - but this Statement of Claim is so ambiguous and diffuse and so totally fails to set up anything other than an amorphous claim in the widest general terms that I think it should be struck out as an abuse of the process, but for one thing, an allegation of a conspiracy to defeat the ends of justice is a most serious one and no court would lightly prevent its being aired in an open trial. It is not an easy thing - and this applies to all these actions - to remove a plaintiff from the judgment seat and a Court will generally give leave to amend a defect in pleading rather than give judgment in ignorance of facts which ought to be known before rights are definitely decided.

33. I emphasise that I make no comment on the merit of the claim, but prima facie it is not one which it is plain and obvious cannot succeed.

34. Accordingly, in O.J. 2504/74 I would strike out that paragraph of the Statement of Claim beginning "On the 8th April, 1974 the plaintiff" down to "since has been suing person" and that paragraph beginning "Since there is no remedy" down to "court may deem fit" both inclusive.

35. I would give leave to the plaintiff to amend his endorsement on the Writ to confine himself to an allegation of conspiracy to defeat the ends of justice and a claim consequent upon that conspiracy such as damages or as he may think fit. I would specifically refuse him the right to amend the endorsement to claim the declarations sought and refused in O.J. 2683/71. My reasons for this refusal will appear later.

36. He will also be given leave to file a separate Statement of Claim setting out his reasons for the allegation of conspiracy. The "Affirmation" is not a Statement of Claim.

37. The amendments and the filing of the separate Statement of Claim to be carried out within 21 days of the date of this decision.

38. In O.J. 2579/74:-

39. There is a form of Statement of Claim endorsed on the Writ which alleges "(1) intimidation and (2) contempt of Court"; it goes on:-

"The plaintiff begs for justice and relief whatsoever the Honourable Court may deem fit."

40. It further states that the plaintiff was "threatened" with the institution of disciplinary proceedings on 5th July, 1974 and that he was warned that he should not regard civil action 2683/71 as conferring immunity from disciplinary action.

41. I agree with Mr. Yu that this Statement of Claim is beyond salvation. For the life of me I cannot see any or any reasonable cause of action.

42. This Statement of Claim will be struck out and I would dismiss the action with costs.

43. In O.J. 2580/74:-

44. Here there are allegations of "neglect of duty" and "conspiracy to defeat the ends of justice".

45. The prayer for declarations is in identical terms with that in O.J. 2683/71 - even down to the misspellings. This claim is, in my view, clearly res judicata. The only way around this is for the plaintiff to have the Judgment of Cons, J. set aside, and I am not aware of any such application, I am aware that there is an appeal from that decision, at least in contemplation, but whichever way that might go it does not affect my view as to res judicata.

46. Do I give leave to amend? and I have again particularly in mind the allegation of "conspiracy to defeat the course of justice". This action, in my view, is somewhat different from O.J. 2504/74 in that the allegation of conspiracy is based on an allegation of "knowing that the plaintiff had been unlawfully and unjustly reverted from Inspector to Corporal" he did fail to take action against certain officers of Government. This reversion is precisely the issue adjudicated upon in O.J. 2683/71.

47. That being so the plaintiff cannot have a second bite of the cherry while that judgment still exists. It is an abuse of the process.

48. I would therefore strike out the Statement of Claim and dismiss the action with costs.

49. In O.J. 2826/74:-

50. Here there is a Statement of Claim endorsed on the Writ and a further document headed "Affirmation and Statement of Claim" dated 9th December, 1974.

51. The allegations made are (1) Neglecting duty; (2) Conspiracy to defeat the ends of justice; (3) Obstructing justice; (4) Willful cover up on the Bungling of files; (5) Putting the Civil Service into disrepute by openly siding the wrong party; (6) Willful cover up on "P.T.S. corruption of 1968" to discredit the Plaintiff in Case O.J. No. 2683.

52. The prayer for declaration is again in terms identical to that in O.J. 2683/71.

53. The basis of the allegations is again "knowing that the plaintiff has been unlawfully and unjustly reverted or demoted from Inspector to Corporal", the issue disposed of in O.J. 2683/71.

54. The plaintiff had ample opportunity to amend his pleadings in O.J. 2683/71 - and had clear indications of the nature of the amendment required - so as to canvass the allegations of corruption in "P.T.S.". He chose never to do so and he cannot now raise issues which could and should have been pleaded in that action.

55. The claim is clearly res judicata and the rest of the pleading is an abuse of the process. I would strike out the Statement of Claim endorsed on the Writ and, if the document headed "Affirmation and Statement of Claim" is intended as a supplementary or alternative Statement of Claim, would strike that out also, dismissing the action with costs.

56. I now come to the libel action, O.J. 2362/74.

57. I think there is a reasonable cause of action in respect of libel. I had directed on an earlier summons that the plaintiff do file a Statement of Claim setting out the basis of the allegation of libel. A summons brought by the defendant for leave to file a defence out of time was adjourned generally as I did not think the endorsement on the Writ to sufficiently particularise the basis of the allegation of libel and it was premature to plead to it.

58. As a result a Statement of Claim was filed dated 18th December, 1974. There is also a document headed "Affirmation" dated 27th December, 1974, but this is not a pleading and I am not concerned with it.

59. In the Statement of Claim the prayer is yet again in terms identical to that in O.J. 2683/71 and must, for reasons already given, be struck out but the issue of libel remains. Paragraphs 1 to 22 of the Statement of Claim are ambiguous, diffuse and relate in part to matters which are res judicata. I find it impossible to tinker with it so as to leave it in some kind of proper form in relation to libel.

60. It is, in my view, proper for the plaintiff to file a fresh Statement of Claim which should condescend on the particulars limited to the alleged libel itself.

61. The best order I can make in the circumstances is that the Statement of Claim dated 18th December, 1974, be struck out but that the plaintiff do have leave with in 21 days of this decision to file a fresh Statement of Claim limited to the allegation of libel.

62. There will therefore be an order on the five applications before me and in the order of the several actions:-

63. I shall hear the parties as to the costs of the several applications.

64. I shall also hear the parties in respect of publication of this decision.

65. Dated this 8th day of February, 1975.

Representation: