Secretary for Justice v. Ma Kwai Chun

HCMP 1471/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1471 OF 2005

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BETWEEN

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Before: Hon Lam J in Court

Date of Hearing: 20 September 2005

Date of Judgment: 16 December 2005

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J U D G M E N T

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Introduction

1.Since 2000, Madam Ma Kwai Chun has been involved in no less than 32 sets of legal proceedings (sometimes with numerous interlocutory applications and appeals in the same set of proceedings) in the High Court. Of these proceedings, 28 sets were commenced by her.  In one set of proceedings, her company Chasemax Investment Limited was the defendant in an action by the landlord for possession on account of arrears of rent.  Chasemax made a counterclaim.  Of the remaining three sets in which Madam Ma was the defendant, one involved an application for injunctive relief against her by a solicitors firm to restrain her from visiting their office or harassing their staff.  Another one is an action by a bank for repayment of banking facilities.  The last one is a bankrupty petition presented against her.  Madam Ma always acted in person in these proceedings.

2.If a lawyer, or indeed any person, were to go into the Legal Reference section of the Judiciary website and search for Chinese judgments by reference to Madam Ma or her company as a party, he would probably find that the frequency of Madam Ma attending court was comparable to a seasoned litigation lawyer.  One must remember all these judgments were delivered after substantial judicial resources were spent on preparation for the hearings, presiding over the hearings and writing the judgments.  It means other cases had to wait for longer time before they could be disposed of.  In proceedings involving Madam Ma, the opposite parties had to incur costs in retaining lawyers to prepare and attend the hearings.  In these proceedings, Madam Ma lost on many occasions and orders for costs were made against her.  I do not know the extent to which these parties have been able to recover their legal costs.  I suspect not much was recovered.  The court made a bankruptcy order against Madam Ma on 8 August 2005. 

3.Sometimes it is easy to lose sight of the obvious.  Access to court is a fundamental right which the court will do everything to safeguard.  However, it would be wrong to equate such a right with unlimited freedom to engage in litigation in whatever manner one chooses.  Litigation is not a private matter.  Even in the context of a civil dispute, the prosecution of a claim is a public act.  As Bokhary PJ put it in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 at Para.25, in prosecuting a claim in court, a plaintiff is evoking state power by resorting to the coercive provisions of the court’s process.  The opposite party is obliged to respond to a claim, failing which default judgment could be entered and the coercive power of the court could then be deployed to enforce the judgment.

4.A litigant enjoys certain privilege in respect of statements made by him in the course of judicial proceedings.  He is protected by immunity from liability for defamation.  A litigant can also compel his adversary to give discovery of documents or disclosure of information which, but for the litigation, could be treated as private and confidential.  He also has the right to subpoena third parties, who might not wish to be involved in the dispute, to give relevant evidence.  At trial, he could subject his adversary to cross-examination if the latter chooses to go into the witness box.  He could also cross-examine any witnesses called by the other side.  There are good reasons for such privilege and compulsion.  At the same time, if the process of the court were misused, it could cause unjustified inconvenience, anxiety, suffering or damage to other parties.  The court must therefore be the master of its own process.  Hence, it has inherent jurisdiction to control all proceedings to prevent abuses even though generally a litigant has the conduct of proceedings commenced by him.

5.Most litigants come to court to seek redress for grievance suffered or perceived to have been suffered by him or her.  They want to see justice to be done.  No doubt, most of them genuinely believe that they are pursuing a just cause.  But due to human fallibility, their perceptions as to what is just may be flawed.  Very often, there are matters which were overlooked.  New perspective of a dispute might come to light after the opposite party has the opportunity of putting his case in pleadings or evidence.  Even the best lawyer cannot tell his client with certainty at the commencement of an action that his case must surely win.

6.Once a piece of litigation has been commenced, the plaintiff is not the only person affected by it.  The adversary will be affected.  A responsible litigant has to consider the potential liabilities for the costs of the adversary if he or she loses the action.  If a litigant does not have the means to pay the costs of his adversary if he loses, he is in effect causing potential financial damage to his adversary by pursuing his claim.  The court will also be affected.  Given that judicial resources are not unlimited, the action of a litigant will have an overall impact on other litigants who wishes to pursue their just causes.

7.Hence, it is of great importance to ensure that the court’s process is not abused.  Excess in terms of abusive proceedings has to be curbed.  The court has and will continue to exercise its inherent jurisdiction in forestalling abuses of its process.  The Chief Justice said in Para. 6 of his judgment in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473,

“The proper and effective exercise of the court’s jurisdiction to prevent abuse, both statutory and inherent, is essential to the prevention of injustice to the other parties to the litigation in question as well as the operation of a fair and efficient judicial system.” (my emphasis)

8.As guardian of the public interest, the Secretary for Justice also has a role to play in the prevention of abuses in civil proceedings.  By Section 27 of the High Court Ordinance, the legislature empowered the Secretary for Justice to act in cases of habitual and persistent abuses.

9.On 18 July 2005, the Secretary for Justice issued the present proceedings under Section 27 against Madam Ma.

The proceedings of Madam Ma

10.I shall now briefly highlight the proceedings in which Madam Ma or her company was a party.  For reasons discussed in the next section, it is not necessary for this court to go into the details of each and every proceeding in this judgment.  With the exception of 6 actions, the other proceedings commenced by Madam Ma or her company had either been struck out by the court as abuse of process or dismissed after trial.  I annex to this judgment a table produced on behalf of the Secretary for Justice setting out the particulars of the actions struck out or dismissed and another table setting out all the actions in which Madam Ma was involved.

11.It has to be mentioned that Madam Ma had been successful in some of her proceedings.  However, the question is not whether she had properly pursued her legitimate claims in previous proceedings.  The question is whether she has so habitually and persistently and without any reasonable ground instituted vexatious legal proceedings that the court should exercise its discretion to make an order under Section 27.  The fact that she had been successful in some proceedings does not give her a justification to pursue other vexatious proceedings.  Examples can be found in AG v Lawal [2004] EWHC 816 (Admin) and AG v Knight [2004] VSC 407.

12.Broadly speaking, the proceedings commenced by Madam Ma can be categorized as follows,

(a)	proceedings arisen from the disputes between Madam Ma and a bank, including one action against solicitors acting for the bank;
(b)	proceedings arisen from the arrest of Madam Ma by the police, including an action against Secretary for Justice and the government counsel acting for the police in defending the action;
(c)	proceedings arisen from the tenancy disputes between Chasemax and its landlord, including action by Madam Ma against the solicitor firm acting for the landlord and another action by Madam Ma against the solicitor firm acting for the first mentioned solicitor firm;
(d)	proceedings against judges and judicial officers and other staff in the Judiciary;
(e)	9 actions commenced by Madam Ma between April and June 2005 against a varieties of defendants who were public figures including the Hong Kong government, the former Chief Executive, the Chief Justice, a number of Legislative Councillors, a number of judges and several members of staff in the Judiciary, the Secretary for Justice and the Director of Public Prosecution, the Hong Kong Bar Association and its chairman and vice-chairman, the Law Society and its President and Vice-President, the University of Hong Kong and its Vice Chancellor and the Dean and several members of the teaching staff in the Faculty of Law.  Former public figures who had already retired from their offices were also sued: the former Chief Justice and the former Chief Secretary;
(f)	other proceedings.

13.In these proceedings, Madam Ma habitually and persistently made a large number of interlocutory applications, many of which are unnecessary and unmeritorious.  According to the evidence filed on behalf of the Secretary for Justice, in the 32 sets of proceedings, Madam Ma had, up to 15 July 2005, taken out 201 applications.  In the appeals arising from these proceedings, she had made at least 23 applications.  All these applications had to be heard and judicial time had to be deployed to deal with the same.  In many cases, more than one judge had to be involved: Madam Ma had a tendency to exhaust each and every avenue of appeal.  That means that for a decision by a master, she would appeal to a judge in chambers (she had lodged at least 41 appeals against Master to judge in chambers), and then to the Court of Appeal (she had lodged at least 32 interlocutory appeals to the Court of Appeal).  She would then seek leave to appeal to the Court of Final Appeal.  When leave was refused, she would apply to the Court of Final Appeal to seek leave (she had made at least 6 unsuccessful applications to the Appeal Committee of the Court of Final Appeal).

14.Madam Ma repeatedly behaved improperly in the course of hearings.  She hurled abuses at lawyers acting for the opposite party.  She had no qualm in making wild allegations against judges without proper basis.  I am not going to dignify some of her allegations by repeating the same in this judgment.  Exhibit “JF-8” of the Secretary’s supporting affirmation is a summary of the scurrilous remarks made by Madam Ma in court documents.  She was aware that such remarks and behaviour in court were unacceptable.  In a judgment of 23 May 2002 in HCA 2744 of 2002, Chu J reminded her that such conducts amount to contempt of court.  In another judgment of 3 June 2004 in HCA 4095 of 2002, Yam J again criticized the unreasonable and violent conducts of Madam Ma in court proceedings.

15.Unfortunately, Madam Ma paid no heed to such warnings.  On 2 December 2004, at a hearing in the Court of Appeal in CACV 197, 231, 232 and 233 of 2004, Madam Ma wrongly alleged that the court was not lawfully constituted.  Despite the Vice President patiently explained to her that Chu J was lawfully appointed by the Chief Justice to sit as an additional judge in the Court of Appeal, Madam Ma refused to listen and continued to make a series of highly scandalous remarks against the judges.  She even seized the document shown to her and alleged the court of uttering forge document.

16.Madam Ma repeated her abuses on 16 December 2004 in CACV 27 of 2004.  She again alleged the court to be unlawfully constituted.  In addition, she accused two of judges accepting bribes.  When she was invited by the court to produce evidence to substantiate her serious allegations, she kept on repeating the allegations.  When it was pointed out to her that she had no evidence to support the allegations, she refused to retract the same.  The court had to adjourn for contempt proceedings to be commenced against her. 

17.At a hearing on 24 June 2005 before a Master, Madam Ma repeatedly shouted at a solicitor acting for the opposite parties at close distance.  She completely lost control of herself.  She interfered with the orderly conduct of proceedings by screaming and crying.  She even jumped onto the bar table.  The court had to adjourn for half an hour before she could calm down.

18.These are but some of the examples of Madam Ma’s vexatious conduct in court.  I shall now try to highlight some of Madam Ma’s litigations.  The actions between April and June 2005 are good illustrations.  In HCA 612 of 2005, Madam Ma sued a legislative councillor for defaming the leaders of the Central Government and Mr Tsang, who subsequently became the Chief Executive of the Hong Kong Government and defaming all citizens in Hong Kong.  The relief she sought included a declaration by the court as to the definition and standard of patriotism, damages payable to her in the sum of $180,000.  She also sought damages in the sum of $1,980,000 on account of the defendant’s support to a bank in disrupting law and order and corrupting the court in Hong Kong.

19.In HCA 655 of 2005, Madam Ma sued 20 defendants, including 9 legislative Councillors, the Chairman of the Bar Association and the Association, the President and Vice President of Law Society and the Society, several professors of the Law Faculty, University of Hong Kong.  She alleged that the Judiciary was under the control of a “Fujian Gang” and the defendants who were in the legal circle failed to take steps to rectify the situation.  She sought damages in the sum of $80,000 from each of those defendants.  As regards the other defendants, she alleged that they defamed the leaders of the Central Government, abused their freedom of expression.  She again sought damages in the sum of $80,000 from each of them.

20.In HCA 839 of 2005, Madam Ma sued the Chief Justice, several judges and some staff in the Judiciary.  She regarded the dismissal of her applications for leave to appeal to the Court of Final Appeal in FAMV 24 and 25 of 2004 as a conspiracy perpetuated against her.  She alleged that the seal of the Court of Final Appeal was applied as a result of corruption.  She sought damages in the total sum of $127.88 million.

21.In HCA 872 of 2005, Madam Ma sued the solicitors firm acting for the defendant in HCA 612 of 2005.  She sued the firm and its partners for their conduct of the defence in HCA 612 of 2005.  She regarded the issue of a striking out summons as a tortious act committed against her.  She sought damages in the sum of $1.36 million.

22.In HCA 873 of 2005, Madam Ma sued the Chief Justice and some other defendants who had already been sued by her in the earlier actions.  She again alleged corruption in the Judiciary and the 5^th to 12^th Defendants failed to take steps to rectify the wrong.  She claimed damages in the total sum of $60.88 million.

23.In HCA 874 of 2005, Madam Ma sued the Hong Kong Government, the former Chief Executive, the Secretary for Justice, the Director of Public Prosecution and a Government Counsel together with some defendants already sued by her.  She alleged the 1^st to 5^th Defendants conspired to alter and forge the judgment of the court in HCA 3983 of 2001.  She again claimed against the other defendants of failing to rectify the situation.  She sought damages in the sum of $110.88 million.

24.In HCA 978 of 2005, Madam Ma sued the Hong Kong Government, the former Chief Executive, the Chief Justice, Ribeiro PJ, the University of Hong Kong and its Vice Chancellor and the Dean of the Faculty of Law.  She alleged Ribeiro PJ for defaming her in a lecture at the University in revenge for her previous actions against the Chief Justice and the Dean.  She sought damages in the total sum of $110.3 million.

25.In HCA 979 of 2005, Madam Ma sued the Hong Kong Government, the former Chief Executive, the Secretary for Justice and the Director of Public Prosecution, the Chief Justice, and several other defendants (including some who had been previously sued and two new defendants) for alleged alterations of judgment and orders of the court.  Apart from seeking damages in the total sum of $111.1 million, she asked the court to grant leave to the Chief Executive to set up a tribunal to investigate the Chief Justice under Article 89 of the Basic Law.

26.In HCA 1122 of 2005, Madam Ma sued 72 defendants.  Some were defendants in previous actions.  Some were judicial officers or staff in the Judiciary who had not been sued before.  The other new defendants were public figures like the former Chief Justice and the former Chief Secretary and Representatives of the National People’s Congress.  She repeated her allegations of corruption in the Judiciary and made some scandalous remarks about the Chief Justice.  She sought damages of various amounts ranging from $1 to $20 million from each defendant respectively.

27.These nine actions were commenced within a period of slightly more than 2 months.  The writs spoke for themselves in terms of the abusive use of the court’s process by Madam Ma.  They were struck out by Chung J on 4 August and 13 September 2005 respectively.

The court’s approach in dealing with a Section 27 application

28.From the authorities, I derive several propositions for guidance in dealing with Section 27 applications.  I shall set them out in the following paragraphs.

29.A section 27 order is a strong measure.  A person subject to such an order has to submit to a judicial screening before any intended legal action by him can be pursued.  The rationale for such measure was examined by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473.  In essence, the Court of Final Appeal held that the right of access to the court is subject to the power of the court to adopt proportionate measure in preventing the abuses of its own process.  In the words of the Chief Justice in Ng Yat Chi at Para. 5,

“The pursuit of abusive proceedings would be an improper exercise of the right of access and may be regarded as adversely affecting the right of access of others with meritorious cases.”

Bokhary PJ said at Para. 25,

“[The court] is not a place for inflicting vexation or wasting the resources available to the judiciary for serving those who seek justice at its hands.  To protect others from vexation and its resources from wastage the judiciary can constitutionally curb the private litigation court access of persons who have a history of initiating such litigation vexatiously.”

A more detail discussion can be found in the judgment of Ribeiro PJ at Paras. 73 to 76.

30.The evils of abusive proceedings were identified by the Court of Final Appeal as follows (see the Chief Justice at Paras. 3 and 4; Ribeiro PJ at Paras. 52 and 53),

(a)  Unfair oppression and stress (including financial pressure) caused to the opposite party or parties;

(b)  Wastage of limited judicial resources.

31.In making a Section 27 application, the Secretary for Justice is acting as the guardian of the public interest (see AG v Covey [2001] EWCA Civ 254 Para. 48).  The constitutional and public interest considerations set out by the Court of Final Appeal have to be taken into account before the Secretary decides to mount an application against a particular defendant.

32.A Section 27 order is obviously more draconian than a restricted proceedings order [“RPO”] or a restricted applications order [“RAO”] under Practice Direction 11.3.  Given the rationale for such measure, the court must be satisfied that it is a proportionate remedy to the abusive litigious activities of the defendant before such order is made.  See Bhamjee v Forsdick [2004] 1 WLR 88.

33.The expression “habitually and persistently” involves an element of repetition.  Although it needs not be over a long period of time, it is essential to establish a course of repetitious abusive conducts in the whole history of the defendant’s litigious activities.  Whilst in many cases, the activities focus on a particular adversary or a particular grievance, repetition can also manifest itself in the form of a number of unfocused vexatious claims against a wide range of persons (see AG v Barker [2000] 1 FLR 759; AG v Covey [2001] EWCA Civ 254 Para. 54).  In this respect, the scope of Section 27 is wider than RAOs or RPOs.

34.At the same time, in some cases, even though the number of separate actions is quite small, if the whole circumstances and history of the litigious activities demonstrate an attempt to re-litigate an issue already conclusively determined, coupled with such attempts being pursued in a vexatious manner (e.g. with extravagant, scandalous or wild allegations without any prospect of the same being justified), the requirement of that expression can also be satisfied (see Brogden v AG [2001] NZCA 208 at [21]; AG v Weston [2004] VSC 314 at [21]).

35.For the purpose of Section 27, a distinction is drawn between the institution of legal proceedings and the continuation thereof.  Although more than one view can be found in the authorities, the following are generally regarded as institution of proceedings,

(a)  Filing of originating process;

(b)  Making a counterclaim;

(c)  Appeals from a final determination in a proceedings;

(d)  Seeking to set aside a final determination.

See Re Vernazza [1960] 1 All ER 183 at p. 187-8 and p. 191; AG v Weston [2004] VSC 314 at [12]; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at p. 488; AG v Michael [1999] WASCA 181 at [124]; Foy v Foy (No.2) (1979) 26 OR (2d) 220.

36.As regards interlocutory applications and interlocutory appeals on such applications, the majority view is that they do not come within the meaning of “institution” of proceedings.  They are steps taken in the course of a pre-existing set of proceedings.  A dissenting view can be found in the judgment of Blair JA in Foy v Foy (No.2) (1979) 26 OR (2d) 220.  I do not need to decide this point in the present case and it may not be too significant because,

(a)  The interlocutory applications and appeals can be taken into account in determining whether the main action is vexatious;

(b)  In cases where vexation is only manifested in interlocutory steps as opposed to the substantive dispute in the main action, the rule of proportionality will generally dictate that the proper remedy is a RAO instead of a Section 27 application.

37.Vexatious legal proceedings are regarded as abuse of process.  As the Chief Justice pointed out in Paragraph 6 of the judgment in Ng Yat Chi, the categories of abuse of process are never closed.  The element of vexation in legal proceedings can likewise take as many forms as human ingenuity may devise.  It should be noted that the description “vexatious” in the context of Section 27 has a wider meaning that given to the same word in the context of Order 18 Rule 19 of the Rules of the High Court.  In Gallow v AG (Victorian Full Court, unreported, 4 Sept 1984, cited by Smith J in AG v Knight [2004] VSC 407 at Para. 5), the court held,

“In the light of the mischief to which the section is directed however it seems to me that the word ‘vexatious’ is not in this context a term of art and is an omnibus expression which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the Court.  All of such and similar proceedings in my opinion, fall within the meaning of the word ‘vexatious’ in the statute.”

38.There have been attempts to set out some of the usual characteristic of vexatious proceedings in the authorities, some of which were set out in Ng Yat Chi (see Paras. 2, 48 to 50).  Useful guidance can also be found in the following dictum quoted by Whelan J in AG v Weston [2004] VSC 314 at [14] and [15],

(a)  Proceedings can be regarded as vexatious if,

“(1)  they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or

(2)  they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise; or

(3)  irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

(per Roden J in AG v Wentworth (1988) 14 NSWLR 481 at 491)

(b)  Proceedings can also be vexatious if it is prosecuted in a vexatious manner,

“The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example.  The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy.  In this case … [w]hilst it is not possible to say that the claim … is ‘utterly hopeless’, the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section.”

(per Anderson J in AG v Michael [1999] WASCA 181 at [126])

39.Another often cited dicta is that of Lord Bingham CJ (as he then was) in AG v Barker [2000] FLR 759 at 764,

“ ‘Vexatious’ is a familiar term in legal parlance.  The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”

40.But these judicial statements should not be regarded as exhaustive definition of vexatious proceedings.  Given the infinite wisdom of a litigant, there is always scope for new forms of vexatious proceedings.  Vexation can stem from the motive of the litigant, the merit of the claim or the manner in which the claim is prosecuted.  Re-litigation of a subject that has been finally determined is a common feature, but there are vexatious proceedings which do not seek to re-litigate.  In AG v Pepin [2004] EWHC 1246 (Admin), Auld LJ identified another form of vexation at Para. 34,

“And, as I have said, the vexatiousness of which the Attorney General complains in this application is not just in the repetitive attempts by Mr Pepin to re-litigate the same matters over a period of years.  It is also about the aggressive and oppressive manner in which he has done so, to the great and unnecessary inconvenience and expense of the individuals and public bodies who have been his victims.  Whatever, if any, merit he may have had, or have, in any of his underlying complaints is not a reasonable ground for conducting his claims in that manner.  His conduct cannot, in my view, be dismissed as merely the poor efforts by a layman, they were and are clearly intended to be harassing and vexatious.”

41.In dealing with a Section 27 application, the court is not re-opening the previous proceedings which are said to be vexatious.  Ordinarily, the vexatious nature should be apparent from reading the reasoned judgment and orders made in those proceedings (see AG v Jones [1990] 1 WLR 859 at p. 863 D to F; AG v Kay [2000] VSCA 176 at Para. 1; AG v Lawal [2004] EWHC 816 (Admin); AG v Pepin [2004] EWHC 1246 (Admin)).  Section 27 application is not an occasion for a defendant to re-open holdings against him or her in the previous proceedings.  Hence, unless there are special reasons for reference being made to pleadings or other documents filed in the previous proceedings, the fact that such proceedings had been struck out by the court is good evidence of the vexatious nature of those proceedings.

42.In an appropriate case, the court may grant interlocutory injunction to restrain institution of proceedings without leave by a person alleged to be a vexatious litigant pending the hearing of the substantive Section 27 application, see Re Blackstone [1995] COD 105; AG v Parkinson [1999] EWCA Civ 1178; AG v Mensah [2004] EWHC 1441 (Admin).  In the present case, in the light of the exceptional circumstances which I had alluded to in my oral judgment delivered on 18 July 2005, I granted an ex parte injunction on that date.  The injunction was continued by Chung J on 22 July 2005 after an inter parte hearing.

Vexatious nature of Madam Ma’s proceedings

43.Mr Wong SC had identified several features in Madam Ma’s proceedings as exhibiting characteristics of vexatious legal proceedings.  Mr Wong submitted that Madam Ma had pursued a large number of hopeless proceedings.  The nine actions commenced by her between April and June 2005 served as good examples.

44.She had on several occasions sued judicial officers and the staff of the Judiciary who had dealt with her cases.  Wild allegations such as improper conducts, corruption, conspiracy were wantonly made without any basis whatsoever.  The Chief Justice was made a defendant to five actions.  The claims advanced were all spurious and those actions were all struck out.

45.She had also sued the lawyers who acted for those sued by her.  HCA 872 of 2005 is one example.  Another bizarre instance is HCA 4760 of 2002 in which Madam Ma sued Messrs.Iu, Lai & Li, the solicitor firm that acted for the landlord in HCA 2744 of 2002.  Then in HCA 865 of 2003, Madam Ma sued the solicitor firm that acted for Messrs.Iu, Lai & Li in HCA 2744 of 2002.  These two actions were struck out by Chung J on 12 February and 26 July 2004 respectively.  

46.She quite often conducted proceedings in the most unreasonable manner.  She took out numerous improper interlocutory applications and pursued hopeless interlocutory appeals repeatedly.  Such applications were unnecessary and substantially increased the costs of litigation for her adversary.  The remarks of Auld LJ quoted above can aptly be applied here.

47.Her submissions (both written and oral) often had no relevance to the dispute before the court.  Instead, insofar as they were intelligible, they contained a lot of scandalous remarks and vitriolic attacks on her adversaries, the lawyers acting for them and the judges who had previously decided against her.  Lately, she included the Chief Justice as the target of her scurrilous attacks.

48.I have already mentioned her behaviours in court.  Not only were such behaviours disrespectful, they also caused disruption to orderly conduct of proceedings and made it difficult to the judge to focus on the real issues in the matter before the court.  Firm measures are required to prevent such abuse.

49.It is obvious that Madam Ma had difficulties in accepting unfavourable judgments.  She habitually pursued every avenue for appeal and when she failed to get leave to appeal to the Court of Final Appeal, she chose to ventilate her frustration by commencing proceedings against the Chief Justice.

50.From the history of Madam Ma’s litigation, I agree with the submission of Mr Wong that she had completely lost her ability in controlling herself.  She had become a compulsive litigant.  She would institute legal proceedings without any regard for the merit of her claims.  I am driven to the conclusion that Madam Ma has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings.  The statutory criteria of Section 27 has been satisfied.

Exercise of discretion

51.As a matter of law, it is possible to resort to Section 27 even though the defendant has not been subject to a RPO or RAO.  However, in line with the requirement of proportionality, the court must weigh whether less draconian measure is sufficient to deal with the case before it, see AG v Pepin [2004] EWHC 1246 (Admin) Paras. 36 to 39.  I will respectfully quote from Para. 39 of the judgment of Auld LJ,

“The question, therefore, is whether in the circumstances of this case it is necessary to achieve the protection for the administration of justice and those who may be unwillingly drawn into it by Mr Pepin's vexatious conduct, to restrain him from continuing it by a section 42 order.  As I have said, none of the lesser options to which the Master of the Rolls expressly made reference in paragraph 36 in Bhamjee is appropriate.  But that is not an exhaustive list – far from it as the Master of the Rolls emphasised in the immediately preceding paragraph of the judgment:

‘35 … In what follows we must not be taken to be excluding the possibility that other forms of order may be made if the situation seems to demand it.  For instance, it may on occasion be thought appropriate to direct that permission to make an application or to institute an action will only be considered if an advocate with higher court rights of audience considers there is merit in it, or that the requisite application in the High Court should be made to a master in the first instance.  The possibilities are unlimited.  What is important is that the remedy should always be proportionate to the mischief that needs remedying.’”

52.On the facts of that case, due to the multiplicity of claims arising out of more than one subject matter and the disposition of the defendant, Auld LJ concluded that a statutory order was warranted.  Permission was however granted for one claim (in which the defendant had legal representation and trial date had been fixed) to be pursued subject to a condition, viz. “only if an advocate with higher court rights of audience so advises and only if and so long as such an advocate continues to represent him in the conduct of the claim”.

53.Application by Mr Pepin for leave to appeal was dismissed by Buxton LJ, see [2004] EWCA Civ 1299.

54.In the present case, it is quite clear from the litigation history of Madam Ma that a RPO or RAO would not be adequate in preventing further abuses of the court process at her instigation.  Her actions were multifarious both in terms of subject matters and defendants.  Further, a RPO and RAO may generate arguments as to whether a new action is within the scope of such order with consequential proceedings and appeals relating thereto (see AG v Price [1997] EWHC Admin 296 at Para. 50).  Given her inclination to make wild allegations against lawyers and judicial officers and proliferate the same with fresh actions, her persistence in exhausting every right of appeal, strong measure is called for to curb her abuse.  I am of the view that it is appropriate to grant a Section 27 order in the circumstances of the present case.

55.In the future, before Madam Ma institutes or continues any proceedings, she has to apply to me, or in my absence Chung J, as the designated judge by letter for leave to do so.  The application will be dealt with on paper and no hearing is required.  In accordance with the practice suggested in Ng Yat Chi v China Resources (Holdings) Co Ltd, HCA 424 of 2005, 13 May 2005, the High Court Registry and the District Court Registry will be notified of the order I am going to make.  

56.I have considered whether I should grant leave to Madam Ma to continue some of her existing actions.  However, I do not have all the necessary information before me and I have no opportunity to hear from Madam Ma as she did not attend the hearing on 20 September 2005.  I agree with Mr Wong that I should leave it to Madam Ma to decide whether she wishes to apply for leave to continue with any of her existing actions which have not been struck out. 

57.Subject to the amendments that I am going to identify, I will grant an order in terms of the draft submitted by Mr Wong.  A copy of my proposed order is annexed to this judgment.  I do not think it is profitable to engage the putative defendants automatically on the question of leave to institute new proceedings.  To do so would probably occasion unnecessary costs being incurred.  Of course, the designated judge dealing with the application for leave can give directions regarding submissions from the putative defendant if the matter warrants the same.  I therefore delete the original paragraphs 8 and 9 from the draft of Mr Wong.

Dealing with vexatious litigant

58.A Section 27 order will not solve all the problems in dealing with vexatious litigants.  Neither is RAO or RPO or Section 27 the only measures the court may deploy in preventing abuses of its process.  Occasionally, a litigant who has a proper claim may conduct himself improperly in the course of hearing.  As observed by the Master of Rolls in Bhamjee, the kind of orders that the court may make in the exercise of its inherent jurisdiction in dealing with vexatious litigant is unlimited.  In Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 at Para. 24, the Chief Justice alluded to the possibility of granting injunctive relief to restrain threatened conduct amounting to a contempt of court.   

59.Although it had been said that judges should have broad shoulder, fair disposal of a matter does not require a judge to listen with patience to repeated abuses hurled at the court or other judicial officers or, for that matter, lawyers acting for the other side.  A litigant acting in person can and should behave courteously in court.  If Madam Ma were to repeat her tirade in any future hearings, she should not be surprised to find the court ordering her to stop behaving rudely in court (c.f. Mahajan v Waldman [2003] EWCA Civ 1899).  Should she still persist in such conduct after the order, she would be in contempt and the court will not hear her further unless and until she purges her contempt.  Alternatively, the court may limit her right to address the court to submissions in writing.  Another alternative, as illustrated by Pepin, is to grant leave to litigate only on condition that she would be represented by lawyer in pursuing her claim.

60.The court is also more proactive in these days in exercising its inherent power on its own motion to strike out proceedings which are plainly and obviously vexatious, see Ng Yat Chi v China Resources (Holdings) Co Ltd, HCA 424 of 2005, 12 Aug 2005, Paras. 26 to 35.  Chung J exercised the same inherent power in striking out HCA 1122 of 2005 on 8 September 2005 in respect of the claim against some defendants (see Paras. 7 to 14).

61.These are but some examples of how the court may exercise its inherent jurisdiction to prevent abuses of its process.  As pointed out by Ribeiro PJ in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 at Para. 101, subject to proper safeguard for the constitutional right of access to court and the principle of proportionality, in tackling problems stemming from abuse of process,

“… the court’s inherent jurisdiction enables it flexibly to develop such proportionate responses as may be appropriate.”

62.The case of Mr Ebert in England is an extreme example of the problems created by vexatious litigant.  The English court found that the equivalent of Section 27 order was insufficient to curb the abuse arising from his litigious activities.  Recently, the court has to extend an order restricting Mr Ebert from making applications for leave to institute proceedings with the added restriction debarring him from making such applications in respect of certain subject matters, plus an order restraining Mr Ebert from corresponding or in any way communicating with any judge or officer of the Court Service in an insulting or abusive manner, see [2005] EWHC 1254 (Admin).

63.I sincerely hope that we would not encounter such a litigant in Hong Kong.  However, if serious problems were to arise, the court in Hong Kong will exercise its inherent jurisdiction to make firm orders to stop the abuse of its process at the earliest possible opportunity.

Mr Horace Wong, SC and Mr Paul Mak, instructed by Department of Justice, for the Plaintiff

Defendant:  Ma Kwai Chun, in person, absent

Annex 1

馬女士敗訴及遭剔除的訴訟一覽表

Annex 2

A.  馬桂珍為當事人的民事案件
(As at 15.7.2005)

B. 其他涉及馬桂珍的民事案件

#800242v2

Annex 3

草擬法庭命令記錄

(Draft Minutes of Order)

本席按律政司司長申請，根據《高等法院條例》(第4章) 第27(1)條，向馬桂珍(“馬女士”)發出如下之限制民事法律程序令及相應指示(“本命令”)：-

(1)  在沒有事先得到高等法院原訟法庭法官林文瀚或高等法院原訟法庭法官鍾安德的許可下，馬女士不准在任何法院提起任何新的法律程序(「新提法律程序」)，或繼續進行在本命令發出前，已在任何法院提起(包括已排期聆訊)的法律程序(「已提法律程序」)；

(2)  任何在「已提法律程序」中其他與訟人所提出之申請，及馬女士就該等申請作出回應或辯護之權利，將不受本命令所限制；

(3)  如上述兩位法官都未能處理馬女士之許可申請，則由高等法院首席法官指定一位或多位原訟法庭法官處理；

(4)  凡申請要求給予許可，馬女士必須以書面及郵遞方式向上述指定的法官（不是任何其他法官，也不是聆案官）提出，如申請展開「新提法律程序」，則須夾附一份預定藉以展開的法律程序的文件的擬稿，並須按本命令第8條之規定，夾附任何預定被告人的回覆；

(5)  當指定的法官給予馬女士許可，在任何「已提法律程序」中提出實質申請，給予許可的命令須連同實質申請的文件一併送達與訟各方；而除非法官另有指示，實質申請須由一位法官（而非聆案官）聆訊；

(6)  如馬女士試圖在沒有事先得到法庭的許可下，便在任何「已提法律程序」中提出任何申請，法院登記處須立刻將她要提出的申請轉交一位聆案官，由聆案官將該申請撤銷；

(7)  如馬女士在任何「已提法律程序」中提出任何申請，並欲將該申請文件送達答辯人，卻沒有同時把一份准予提出該申請的許可命令送達答辯人，則該申請將會自動撤銷，而答辯人和法庭都無需採取任何行動回應；

(8)  如馬女士試圖在沒有事先得到法庭的許可下，提起任何「新提法律程序」，法院登記處須拒絕登錄或存檔相關原訴文件，及如有需要時，將該沒有事先得到法庭的許可但已登錄或存檔的相關原訴文件，轉交上述指定的法官，由該法官將該原訴文件撤銷或另行作出指示；

(9)  如馬女士在未得到指定的法官許可的情況下提起任何「新提法律程序」；或如有關的法律程序的文件，沒有連同批准展開這「新提法律程序」的許可命令一起送達被告人，則有關的程序文件雖然已送達被告人，該被告人有權對所送達的文件不作任何回應，並等待法庭就這「新提法律程序」所作決定的通知；而認收送達的時限或對這「新提法律程序」作出其他回應的時限須被當作因此得以延展；

(10) 所有根據本命令提出的所有許可申請和一切有關的附屬事項，須由法庭以文件批閲方式處理，無需任何口頭聆訊，除非指定的法官另有指示，才作別論;

(11) 指定的法官根據本命令作出的每個決定，均須以書面通知馬女士、相關的涉訟人或「新提法律程序」裡被指名的每名預定被告人；及

(12) 高等法院將就本命令知會所有「已提法律程序」之與訟人。