The Secretary for Justice v. Yuen Oi Yee Lisa

HCMP 1087/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1087 OF 2005

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BETWEEN

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Before: Hon Lam J in Court

Date of Hearing: 28 October 2005

Date of Decision: 28 October 2005

Date of Handing Down of Reasons for Decision: 3 November 2005

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REASONS  FOR  DECISION

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1.On 28 October 2005, I dismissed the Defendant’s summons of 31 August 2005 seeking to strike out the Plaintiff’s Section 27 application in the Originating Summons. I also adjourned the Plaintiff’s substantive application at the request of the Plaintiff to 20 December 2005. I now give reasons for these decisions.

2.The test for striking out is well established. The court will only exercise its power to strike out a claim if it is plain and obvious that the claim is bad in law or unarguable. The Plaintiff alleges the Defendant to be a habitual and persistent vexatious litigant and seeks relief under Section 27 of the High Court Ordinance.

3.The main planks of the Defendant’s argument in support of her striking out application, as set out in her “affirmation in opposite (sic.)” and other documents attached to her summons of 31 August 2005 and affirmation of 6 September 2005, are two folded. First, it is said that the present application is a duplication of the application for Restrictive Orders in DCCJ 3524 of 2005. That application is going to be heard by the District Court in January 2006 (although the Defendant indicated at the hearing of 28 October 2005 that she might apply for legal aid in that action leading to a stay of proceedings). Second, the Defendant said she was only able to locate a key person in the dispute, viz. Mr Lai, in July 2005. Hence, she said it is not vexatious for her to pursue against Mr Lai now despite her defeat in previous actions.

4.Since I shall hear the substantive application in December, I would not comment on the merits of the Plaintiff’s application in any way more than necessary. It is however quite clear to me that it is not a plain and obvious case. The interface between a Section 27 application and Restrictive Orders application involve complicated legal issues. The nature of a Section 27 application will have to be examined in depth. At this stage, I would only highlight that a Section 27 application is not a piece of ordinary civil litigation concerning private disputes between two citizens or entities. The application should be considered by reference to a balance between the public interest in curbing abuses of court process and the private right of a defendant. The role of the court and the role of the Secretary for Justice in a Section 27 application have to be mapped out.

5.As the law stands, I can see that there are serious arguments as to whether Section 27 should be evoked when remedies by way of Restrictive Orders have not been exhausted and even if Section 27 could be evoked, what should be the criteria for determining that the draconian sanction under Section 27 is appropriate. There are also serious arguments as to whether the Secretary for Justice could and should apply for Restrictive Orders by way of alternative to a Section 27 application. Given the state of case law as it is, these questions should not be resolved in the context of a striking out application.

6.As regards the Defendant’s justification for proceeding against Mr Lai, whether that could justify all extant proceedings by her is a question that must involve detail consideration of all the evidence and substantial arguments on the facts. That exercise should not be undertaken in a striking out application and can only be done at the substantive hearing.

7.Hence, the Defendant’s striking out application failed.

8.On the adjournment, Mr Man submitted that the matter should be adjourned to await the outcome of the Restrictive Order application in DCCJ 3524 of 2005. I do not agree. Although that pending application is a relevant consideration, as presently advised, I do not regard it as essential to delay the present application so that this court can be informed of the outcome in that application. Unless and until the Secretary for Justice adopts the stance that as a matter of policy he would not commence or pursue a Section 27 proceedings when the alternative and less draconian remedy by way of Restrictive Order which could be effective has not been exhausted, this court has to consider a Section 27 application on the existing footing.  I understand from Mr Man that he is not in a position to commit the Secretary to such a policy.

9.Mr Man informed the court that in the light of the skeleton submissions of the amicus, the Secretary for Justice is reconsidering the proper stance to be adopted. The issues outlined in Paragraph 4 above have to be carefully considered and no doubt the Secretary for Justice is taking them on board.

10.Ms Cheng submitted that all these should have been considered prior to 28 October. There is some force in that submission. However, as I said, these are novel points and we are, to an extent, in uncharted territory. The issues involved would have general public importance. It would be counter-productive if the issues were to be decided by the court without the benefit of assistance rendered after mature consideration.

11.The Defendant contended that it would be unfair to her to have the Section 27 application hanging over her head as the present proceedings bring much anxiety and suffering to her. She said she did not want to be branded as a vexatious litigant and she was concerned with the stigma that might be attached to her by reason of the present proceedings.

12.I have borne that factor in mind. However, since I was only going to adjourn the application to 20 December, the Defendant would not have to suffer a long delay before the substantive application is heard. Until a court makes an order under Section 27 or a Restrictive Order or some interim orders, she would not be subject to any restriction in the exercise of her right of access to the court.

13.In this regard, she gave an undertaking to the court at the hearing before the Registrar on 27 July 2005. The Defendant has experienced some problems arising from the wordings and the scope of the undertaking. With regard to the period of adjournment, she did not think it is fair in principle to subject her to any restriction although she had no strong objection if the court requires her to seek leave before her commencement of fresh actions in the High Court. In the circumstances, I would not regard her as offering any undertaking as far as the adjourned period is concerned.

14.For the avoidance of doubt, I held on 28 October 2005 that her undertaking of 27 July 2005 ceased to have further effect as from 28 October 2005.

15.Mr Man indicated that the Secretary for Justice had no application for any interim relief.

16.Hence, subject to the restriction imposed by the order of Tang J on 4 August 2004 in HCA 1108 of 2004, the Defendant can exercise her right of access to the court freely during the adjourned period.

17.The Defendant also complained that she was branded as a vexatious litigant by virtue of the present proceedings. For the purpose of the present proceedings, a question that I will have to decide in December is whether she is a habitual and persistent vexatious litigant. The court has to examine all relevant circumstances in resolving that issue. What she had done in previous actions and what had been said in previous judgments about her conduct would have to be considered. I will also consider what she would say by way of explanation of her conduct. I have yet to reach a conclusion (apart from holding that it is not a plain and obvious case for the purpose of the Defendant’s striking out application). I will hear submissions from the parties and I have no doubt that the Defendant will try to persuade me at the December hearing that she has all along exercised and will exercise her right to litigate reasonably.

18.As regards other proceedings before other judges, I can take this opportunity to reassure the Defendant that all judges are required to adjudicate on an application before him or her by reference to the materials placed before the court. Before any decision is made, a judge is obliged to hear and consider the submissions advanced by the parties. There is no question of prejudice against her by reason of a pending application under Section 27.

19.On balance, it is appropriate to grant an adjournment and I ordered accordingly.

Mr Bernard Man, instructed by Department of Justice, for the Plaintiff Defendant in person

Ms Yvonne Cheng as amicus curiae