Yuen Oi Yee Lisa v. Ho Yiu Kuen Jacky and Others

DCCJ3524/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3524 OF 2005

BETWEEN

Coram: H H Judge Marlene Ng in Chambers (open to public)

Date of Hearing: 10 August 2005

Date of Delivery of Decision: 10 August 2005

D E C I S I O N

1.I have two applications before me today by the plaintiff in the present proceedings.  The first application is the summons dated 5 August 2005 to vacate the hearing of the summonses issued by the 1st, 2nd and 3rd defendants (hereinafter called “the plaintiff’s first summons”).  The second application is the summons dated 8 August 2005 to vacate the hearing of the summons issued by the 4th defendant and for time to file the affirmation in opposition to the 4th defendant’s summons (hereinafter called “the plaintiff’s second summons”).

2.There is some history in this matter.  It is, however, unnecessary at this stage to go into the full history.  The salient facts are: the plaintiff issued the present proceedings on 23 July 2005 against eight defendants.  The 5th to 8th defendants are overseas entities, and the writ of summons was marked “not for service out of jurisdiction.”  Messrs Johnston, Stokes & Master filed an acknowledgement of service on behalf of the 1st to 3rd defendants.  The writ of summons was amended on 2 August 2005 without leave in order to amend the 4th defendant’s address for service.

3.On 4 August 2005, the 1st to 3rd defendants filed a summons seeking a restrictive proceedings order with ancillary directions against the plaintiff returnable before Her Honour Judge H C Wong in chambers at 2.30 pm on 12 August 2005 with 30 minutes reserved (hereinafter called “the RPO summons”).  On the same day, on 4 August 2005, the 1st to 3rd defendants filed a second summons seeking to strike out the plaintiff’s claim in these proceedings against them under Order 18, Rule 19 of the Rules of the District Court and the inherent jurisdiction on the ground that it is frivolous, vexatious or an abuse of process of the court.  Alternatively, the 1st to 3rd defendants seek a determination of certain questions of law and for dismissal of the plaintiff’s claim against the 1st to 3rd defendants (hereinafter called “the first striking-out summons”).  The first striking-out summons is supported by the affidavit of the solicitor of the 1st to 3rd defendants, also filed on 4 August 2005.

4.The plaintiff issued the plaintiff’s first summons on 5 August 2005.  Such summons is supported by the plaintiff’s affirmation dated 5 August 2005. 

5.Also on 5 August 2005, the 4th defendant by his solicitors Messrs Kennedys filed a summons against the plaintiff similar to the first striking-out summons (hereinafter called “the second striking-out summons”) which is also returnable before Her Honour Judge H C Wong in chambers at 2.30 pm on 12 August 2005.

6.On 6 August 2005, Messrs Kennedys lodged the acknowledgement of service to the amended writ of summons on behalf of the 4th defendant.

7.On 8 August 2005, the plaintiff filed the plaintiff’s second summons.  Such summons is supported by the plaintiff’s affirmations dated 8 and 10 August 2005.

8.In respect of the plaintiff’s first summons, the plaintiff does not seek to strike out the RPO summons and the first striking-out summons but just to vacate the hearing date before her Honour Judge H C Wong.  The plaintiff’s grounds as set out in her supporting affirmation can be briefly summarised as follows.  The plaintiff attempted to issue the present proceedings in the Court of First Instance to claim for a sum of $30 million.  Before issuing the writ of summons herein, she left the writ of summons and the statement of claim together with the consent order dated 4 August 2004 in HCA No. 1108 of 2004 (hereinafter called “the restrictive order”) for judicial direction.

9.On 29 July 2005, I gave, inter alia, the following directions, namely that the present proceedings fall outside the terms of the restrictive order and that RPO leave application pursuant to Practice Direction 11.3 was not required (hereinafter called “my directions”).  I pause here to note that my directions were concerned with whether RPO leave was required only in respect of the restrictive order.

10.The plaintiff claims that the present proceedings became necessary due to the mistake and negligence of the solicitors of the 1st to 3rd defendants, and she has made a report to the police.  The plaintiff has annexed to her affirmation her witness statement and correspondence with the police which set out her grounds of complaint.  For the reasons explained below, there is no need for me to go into the detailed merits today.

11.I refer to paragraph 26(c) of Practice Direction 11.3 which provides that “where an RPO litigant serves fresh proceedings supported by an order or direction of the court, this may be because the court has directed that (a) that the new proceedings are not caught by the RPO; or (b) that although caught, the litigant ought to be allowed to proceed.  The defendant may wish to challenge this by applying (i) to set aside decision (a), arguing that the new proceedings are caught by the RPO; (ii) to set aside the discretionary decision (b) on relevant grounds; or (iii) to strike out the new proceedings under Order 18 rule 19 or the inherent jurisdiction.  All such applications should be dealt with together”. 

12.It is therefore plain that my directions do not preclude the 1st to 3rd defendants from issuing their two summonses (i.e. the third mode of challenge permissible under the RPO Direction 11.3) or for those summonses to be properly heard and dealt with by the court.  The plaintiff’s objections to such summonses should also be dealt with together.

13.At the hearing today, the plaintiff refers to HCMP No. 1087 of 2005 issued by the Secretary for Justice under section 27 of the High Court Ordinance and questions whether the RPO summons is appropriate.  But an application under section 27 of the High Court Ordinance in principle does not preclude the 1st to 3rd defendants from issuing the RPO summons. 

14.I propose to deal with the directions required for the further conduct of these two summonses after discussing the plaintiff’s second summons.

15.As regards the plaintiff’s second summons, the plaintiff again does not seek to strike out the second striking-out summons but wishes the court to give appropriate directions for the further conduct of this matter.  However, I shall deal with one preliminary matter first.

16.The plaintiff’s supporting affirmations for the plaintiff’s second summons complain that Messrs Kennedys filed the second striking-out summons on 5 August 2005 and served the same to her on the following day.  She was at a loss because Messrs Kennedys did not serve a notice to act.  It turns out that Messrs Kennedys has lodged the acknowledgement of service on 6 August 2005 which the plaintiff has not yet received.  The plaintiff claims that this reflects professional error, negligence and procedural default on the part of Messrs Kennedys.

17.I do not see any merit in the complaint.  First, the second striking-out summons was served on the same day as the filing of the acknowledgement of service.  In any event, the acknowledgement of service is served within the time prescribed.  There is no procedural default.  Secondly, in filing acknowledgement of service on behalf of a defendant, there is no need for the representing solicitors to file a notice to act for Order 12, Rule 3 of the Rules of the District Court specifically allows defendants to acknowledge service by solicitors.  Thirdly, the acknowledgement of service is posted by the court and not by the defendants’ solicitors (see Order 12, Rule 4(3) of the Rules of the District Court).  In any event, Miss Tsang of Messrs Kennedys confirms today that she acts for the 4th defendant.

18.I now proceed to consider the relevant directions for the further conduct of the various summonses.  The plaintiff submits that she will oppose all three summonses by the 1st to 3rd defendants and 4th defendant by affirmation.  She says that she needs time until 30 September 2005 to prepare her evidence in opposition because:

(a)	she will be busy dealing with her report to the police and the ICAC in respect of related criminal investigations, including attending interviews and providing witness statements; and
(b)	she will have to file affirmation in opposition and attend hearings, including the hearing for a legal aid appeal in HCMP No. 1087 of 2005 in August and September 2005.

19.In my view, it is to the benefit of both parties that the applications in the nature of the RPO summons and striking-out summonses be resolved with due expedition.  Miss Lam, solicitor for the 1st to 3rd defendants, and Miss Tsang urge for a quick disposal of the applications at the hearing scheduled before Her Honour Judge H C Wong on 12 August 2005 or, alternatively, to leave to the learned judge to give directions for the further conduct if she considers appropriate.

20.However, speed has to be tempered with justice.  The three summonses issued by the 1st to 4th defendants seek restrictive and draconian orders.  It is only appropriate that the plaintiff has an opportunity to address these matters by affidavit if so desired, particularly as the 1st and the 3rd defendants have chosen to support their applications with affidavit evidence.  However, the plaintiff should only be given reasonable and not an over-extended period to do so.

21.In the exercise of case management powers and bearing in mind the need to do justice between the parties, I consider it appropriate that the plaintiff should have 21 days from today to file her affirmation in opposition. 

22.The concern of the 1st to 4th defendants that the plaintiff would take further steps in these proceedings which, in their view, will be abusive is addressed by the plaintiff’s confirmation that all other steps save for the three summonses of the 1st to 4th defendants be stayed, and it will be made the subject of an order of this court.

23.Next, it is clear from the affirmations of the 1st to 3rd defendants as well as the affirmations of the plaintiff that other cases in the High Court may be pertinent to this matter.  I will call for the relevant court files to be made available at the adjourned hearing for argument for reference if necessary.

24.I therefore make the following directions:

(1)	There be leave to the plaintiff to file and serve “umbrella” affirmation in opposition to the first and second striking-out summonses and the RPO summons (i.e. the two summonses issued by the 1st to 3rd defendants and the summons issued by the 4th defendant) together within 21 days from the date hereof;
(2)	There be leave to the 1st to 3rd defendants and the 4th defendant to file and serve affirmations in reply within 7 days thereafter;
(3)	No further affirmations be filed or served without leave of the court;
(4)	Save and except for the first and second striking-out summonses and the RPO summons, there will be an interim stay of the present proceedings pending the final disposal of such summonses or further order;
(5)	The first and second striking-out summonses and the RPO summons shall be heard together;
(6)	The hearing of the first and second striking-out summonses and the RPO summons be adjourned for argument to be heard before a District judge in chambers, open to the public, with half day reserved;
(7)	The hearing of the first and second striking-out summonses and the RPO summons scheduled before Her Honour Judge H C Wong in chambers at 2.30 pm on 12 August 2005 be vacated;
(8)	The Registrar of the District Court do arrange for the court files of High Court Action Nos. 1108 of 2004, 509 of 2004, 1258 of 2004 and 96 of 2005, HCMP Nos. 2038 of 2004, 2791 of 2004 and 1087 of 2005, and CACV 389 of 2004 be made available at the aforesaid adjourned hearing for argument;
(9)	The 1st to 3rd defendants shall lodge and serve combined hearing bundle 7 days before the aforesaid adjourned hearing for argument;
(10)	The 1st to 3rd defendants and the 4th defendant shall lodge and serve written succinct skeleton and lists of authorities 4 days before the adjourned hearing for argument;
(11)	The plaintiff shall, if so desired, lodge and serve written succinct skeleton and lists of authorities 2 days before the aforesaid adjourned hearing for argument;
(12)	Subject to and as amended by the above orders, paragraphs 5 and 6 of Practice Direction 27 are applicable to the aforesaid adjourned hearing for argument (copies of Practice Directions 27 and 5.5, both English and Chinese versions, will be supplied to the plaintiff for reference);
(13)	There will be liberty to apply.

25.I should also explain the meaning of the “umbrella” affirmation referred to above.  This means that the plaintiff need only file an affirmation that deals with the grounds for opposing the first and second striking-out summonses and the RPO summons together and she does not have to file the affirmation in opposition to each of the 1st to 3rd defendants’ and the 4th defendant’s summonses. 

(Court discussion re hearing date)

26.I will give Practice Direction 27 and Practice Direction 5.5, both the English and the Chinese versions, to the plaintiff so that she can comply with the court order.

27.So the adjourned hearing for argument for the first and second striking-out summonses and the RPO summons is to be heard before myself in chambers, open to the public, with half day reserved, at 9.30 am on Monday, 3 October 2005.  And the earlier orders in relation to the lodging and service of the written succinct skeletons and lists of authorities are hereby amended in light of the weekend immediately preceding the adjourned hearing for argument.  The amended orders are: the 1st to 3rd defendants and 4th defendant shall lodge and serve written succinct skeletons and lists of authorities 4 clear days before the aforesaid adjourned hearing for argument; and the plaintiff shall, if so desired, lodge and serve written succinct skeleton and list of authorities 2 clear days before the aforesaid adjourned hearing for argument.

(Court discussion re costs)

28.Costs of the plaintiff’s first and second summonses, including today’s hearing, be reserved. 

Plaintiff, in Person, Present

Ms Anita Lam, of Messrs Johnson, Stokes & Master, for the 1st, 2nd and 3rd Defendants

Ms Christine Tsang, of Messrs Kennedys, for the 4th Defendant