Choy Bing Wing v. Official Receiver & Trustee of Ng Yat Chi, Discharged Bankrupt and Another
Read the full judgment text of HCA 667/2003 on BabelCite. This High Court CFI judgment was delivered on 11 June 2003.
1. The defendants apply for the plaintiff's Statement of Claim to be struck out under Order 18, rule 19 of the Rules of the District Court on the grounds that it discloses no reasonable cause of action, is scandalous, frivolous or vexatious, or is otherwise an abuse of process of the court, and that the plaintiff's action be dismissed. They also apply for a Grepe v. Loam order ( Grepe v. Loam (1887) 37 Ch D 168) to prohibit the plaintiff from commencing any further new legal proceedings in respe
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HCA000667/2003 HCA667/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO.667 OF 2003 ---------------------
---------------------- Coram: Deputy High Court Judge Muttrie in Chambers Date of Hearing: 28 May 2003 Date of Judgment: 11 June 2003 ------------------------ J U D G M E N T ------------------------ 1.The defendants apply for the plaintiff's Statement of Claim to be struck out under Order 18, rule 19 of the Rules of the District Court on the grounds that it discloses no reasonable cause of action, is scandalous, frivolous or vexatious, or is otherwise an abuse of process of the court, and that the plaintiff's action be dismissed. They also apply for a Grepe v. Loam order (Grepe v. Loam (1887) 37 Ch D 168) to prohibit the plaintiff from commencing any further new legal proceedings in respect of the same claim or subject matter in High Court Bankruptcy Proceedings No.242 of 1992 ("HCB242/1992") or the Writ and/or the Statement of Claim in these proceedings, and if notice of any such proceedings shall be given to the defendants without such leave being obtained, they shall not be required to appear in such proceedings which shall be dismissed without being heard. 2.The plaintiff's case as it appears from his Statement of Claim is as follows. He was a substantial creditor in the bankruptcy of one Ng Yat Chi, the bankrupt in HCB242/1992. The 1st defendant was the trustee in bankruptcy. The plaintiff was a member of the Committee of Inspection in that case. He found the conduct of the 1st defendant improper and very suspicious. The details of what he considered suspicious are set out. In brief, he says that there was a fraud in respect of a transaction or transactions relating to shares in one Alljean Investment Ltd ("Alljean"). When he pointed out these matters, he was removed from the Committee of Inspection. 3.The plaintiff therefore applied to the court under section 84 of the Bankruptcy Ordinance, Cap.6 for the 1st defendant to disclose full details and documents regarding the prima facie fraudulent sale of Alljean shares and for the Court to make an inquiry into the matter. The 2nd defendant was instructed to act for the 1st defendant in the said application. The matter came before Yuen J (as she then was), and on 15 February 2001, she dismissed the application and ordered costs against the plaintiff. 4.The plaintiff considered that the court has no jurisdiction to order costs against a bona fide creditor in proceedings under section 84. He therefore came back before Yuen J on 5 March 2001 and asked her to vary her order, to the extent that there be no order as to costs. Yuen J refused to vary her order, and made a further order as to costs. 5.The plaintiff then filed a Notice of Appeal. The question arose whether leave was required. Master B. Kwan heard the matter on 22 May 2001. She found that it was. The plaintiff appealed and Kwan J refused his appeal on 7 June 2001. Costs were ordered against the plaintiff, on appeal and below. 6.The plaintiff further appealed the order of Kwan J to the Court of Appeal. On 24 May 2002, Woo JA and Chu J dismissed the appeal and ordered costs against the plaintiff. He then sought leave to appeal to the Court of Final Appeal, and on 19 July 2002, Woo JA and Chu J refused leave, with costs. 7.The plaintiff then applied for leave to the Court of Final Appeal. On 17 September 2002, the Appeal Committee refused leave and ordered costs against the plaintiff. 8.On 7 February 2003, the 2nd defendant served a sealed Charging Order to Show Cause on the plaintiff. 9.The plaintiff says that the 2nd defendant has repeatedly demanded that he pay all the costs ordered by the courts and he had repeatedly indicated that the costs orders were unlawfully, fraudulently and therefore invalidly made, and have no effect. 10.The plaintiff continues, at paragraph 24 onwards of his Statement of Claim :
11.The first prayer seeks relief on the basis of "the wrongful conduct of the Defendants in conspiring to procure and induce the Courts into making unlawful, fraudulent and unjust Orders against the Law." There are two problems here. The first is that while the plaintiff avers that the defendants' conduct was in fraudulent they defrauded the courts fraud must be specifically pleaded and particularised. Here no particulars of the fraud are given. The second problem is, of course, that the costs orders are res judicata. The plaintiff's only recourse against any of them was to appeal it. This he did. He sought to appeal the order of Yuen J, and Master B. Kwan, on ascertaining that it was her costs order against which his appeal was brought, found that leave was necessary. He appealed that to Kwan J, who upheld the Master. He appealed to the Court of Appeal which upheld Kwan J, and refused him leave to appeal to the Court of Final Appeal, so he took the matter himself to the Appeal Committee, which found against him. 12.The second prayer of the plaintiff's claim is for the same relief as was sought before Yuen J. She heard the application and refused it. The plaintiff's recourse was then to appeal to the Court of Appeal, against that refusal, on the merits. But the plaintiff did not appeal on the merits. He only appealed on costs. The order of Master B. Kwan makes that clear; it recites the fact that the Master ascertained the same before finding that leave was necessary, is it is for an appeal against costs, but not for an appeal on the merits. The order of Yuen J is res judicata and the merits of it cannot be argued before another judge at first instance; the only possible recourse which the plaintiff has is to appeal, and this he has not done. 13.The plaintiff is much concerned by the fact that he has not been able to air his grievances before the Court of Final Appeal. He is aggrieved that the Appeals Committee has decided that he cannot do this. He considers that the question of law, decided by Yuen J, as to whether the court may, under section 84 of the Bankruptcy Ordinance, order costs, is an open question until the full Court of Final Appeal closes it. In his view it is not res judicata until the full Court of Final Appeal has pronounced on it. That is not what res judicata means. In any event, there is no way that this issue can be taken before the Court of Final Appeal. Section 18(3) of the Hong Kong the Court of Final Appeal Ordinance, Cap.484 provides that the decision of the Appeal Committee shall be final and not itself subject to appeal. 14.Quite simply the plaintiff has exhausted all his avenues of appeal in respect of the costs orders, and there is simply no way that he can start again at the bottom, so to speak, by attempting to re-litigate at first instance the basis on which the orders were made. There is simply no cause of action on which this head of claim may be brought. It is an abuse of process to seek to re-litigate this matter at first instance. So far as the merits of the matter were concerned, the only proper course for the plaintiff was to appeal against Yuen J's order on the merits. Again he cannot seek to re-litigate this matter at first instance. 15.The plaintiff's claim discloses no reasonable cause of action. It is frivolous or vexatious. To seek to re-litigate matters already decided is an abuse of process. The plaintiff's Statement of Claim must accordingly be struck out. 16.I turn to the defendants' application for a Grepe v. Loam order. Such an order is intended to guard against future abuse of process. Per Kwan J in Chan v. Chan & Others, HCMP2921/2001 :
17.The question is therefore whether the plaintiff is likely to abuse the process of the court in future. 18.I have no doubt that the plaintiff feels aggrieved. He thinks that something dishonest was done by the Official Receiver. In 1992, he wrote letters about this to a number of officials, making serious allegations about the handling of the matter by Mr Brown, the Assistant Official Receiver. Mr Brown sued him for libel, in HCA3509/1994. The plaintiff points to the fact that when Mr Brown tried to get his defence of justification struck out, Keith J refused him, on the basis that the defence was not incurably bad; so there must be something in it. That does not, of course, necessarily mean that justification existed. In any event, the plaintiff thinks that something dishonest has been done, and it is his duty to expose it. 19.In pursuance of this view the plaintiff has made wholesale allegations in correspondence of fraud and other improprieties on the part of the other parties as well as the judges. He has made various allegations against the 2nd defendant of "dishonesty and cheating conduct in misleading and/or conspiring with the Courts"; "cheating the Courts and the connivance by the local judges in the fraud depriving my right to appeal to the Full Court of the Court of Final Appeal which has an Overseas Judge on a crucial question of law of public importance"; and the like. He has accused various judges of cheating him of his rights, and the like, particularly Woo JA, Chu J and the Appeals Committee and indeed the Chief Justice. While this conduct may be regarded primarily as an expression of the plaintiff's frustration, it shows an intention to pursue the matter, even though the judges have ruled on it up to the highest level. 20.The plaintiff and those connected with him have also taken a similar approach in other proceedings. 21.In HCA334/2003, the plaintiff and nine others, all acting in person, sued the Building Authority, the Director of Civil Engineering and Ove Arup and Partners, Hong Kong Ltd. As in the instant case the plaintiffs seek a declaration that orders made by other courts are void and unenforceable in law. The Statement of Claim makes various allegations against personnel of the defendants of lying before a magistrate. It goes on to accuse Woo JA of fabricating a fact, in his hearing of the appeal from the magistrate, and later to accuse the Appeal Committee of the Court of Final Appeal of "stealing the statutory power of the Full Court of Appeal". 22.In Phoon Lee Piling Co. Ltd & Anor v. The Hong Kong Housing Authority, CACV303/2002, Mr Choy, who had represented the 1st plaintiff, was vigorously criticised by Rogers JA, who said :
23.I have set out the above matters, not to criticise the plaintiff further, but because they indicate the attitude which he takes when the courts do not give him what he wants. This attitude is relevant to the decision as to whether or not a Grepe v. Loam order should be made. 24.In Ng Yat Chi v. Max Share Ltd & Another [2002] HKLRD 735, the same bankrupt, Ng Yat Chi, sought to re-litigate before the Court of First Instance matters which had been raised by him in a winding-up order against the defendant, Max Share Ltd and litigated, as in this case, all the way to the Appeals Committee. The present plaintiff, Mr Choy, represented Mr Ng at the hearing before Deputy Judge Carlson of an identical application to the instant one, i.e. for striking out and a Grepe v. Loam order, both of which were granted. 25.In that case the learned judge in considering the application for a Grepe v. Loam order said that he was concerned that since this was the first unmeritorious action brought by Mr Ng, it might be going too far to suggest that there might be more to come. He wondered whether it might be premature to make the strong order applied for. His Lordship went on :
26.With this approach I respectfully agree. In the instant case, however, regard may be had, not only to the plaintiff's conduct in connection with this single case, but with the other cases as well. If the courts do not give him what he wants, he lashes out against the judges. That is perhaps not the main consideration for the purposes of these proceedings. What is more important is that, if he does not get what he wants, he tries to re-litigate when the law does not allow him to do so. Others associated with him follow suit. It is therefore highly probable that he will in future seek to initiate proceedings likely to constitute an abuse of the process of the court in respect of the same claim or subject matter of HCB242/1992 or the Writ and/or the Statement of Claim in these proceedings. A Grepe v. Loam order will therefore be made. 27.I have considered whether to order costs on the indemnity basis. To be fair, the plaintiff did not specifically address this point before me. But I think there can only be one answer. The plaintiff is no beginner in this field; he is an experienced litigant in person. He must have known, if he had ever stopped to consider it properly, that an attempt to re-litigate orders already made, otherwise than by appeal, was completely without merit. He had seen that in the case of Ng Yat Chi, in which he represented the plaintiff. For him to bring or continue such a case in his own right cannot be excused as the product of a combination of frustration and ignorance, for he cannot be ignorant. So an order for indemnity costs is appropriate. 28.There will be an order in terms of paragraphs 1, 2 and 4 of the defendants' summons.
Representation: The Plaintiff in person, present Mr S.A. Sakhrani, instructed by Messrs Stephenson Harwood & Lo, for the 1st and 2nd Defendants |
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