Choy Bing Wing v. Chief Executive of HKSAR, China and Others

HCA 2351/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2351 OF 2005

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BETWEEN

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Before: Hon Lam J in Chambers

Date of Hearing: 13 December 2005

Date of Decision (Striking Out): 13 December 2005

Date of Reasons for Decision (Striking Out): 23 December 2005

Date of Decision (RPO): 23 December 2005

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REASONS FOR DECISION ON STRIKING OUT AND DECISION ON RPO

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The finding of contempt and the new action 

1.On 25 October 2005, Choy Bing Wing [“Choy”] was committed by the court for contempt in HCMP 4694 of 2003.  The reasons for the decision were fully set out in the judgment of Hartmann and Suffiad JJ of 25 October 2005.

2.The court adjourned sentencing Choy because he chose to absent himself from the hearing.  It was directed that a warrant of arrest be issued to take Choy into custody and have him brought before the court to answer for his contempt.  Choy was apprehended on 5 December 2005.  On 7 December 2005, Hartmann and Suffiad JJ sentenced him to six months’ imprisonment.

3.On 23 November 2005, Choy issued the writ in the present action seeking redress for what he alleged to be unlawful acts stemming from the contempt proceedings.  In the Writ, Choy characterized the contempt proceedings as “crimes of conspiracy, judicial cheatings and violation of human rights committed by the executive and judicial arms of HKSAR Government” against him.

4.Choy alleged Hartmann J to have “deliberately committed unlawful judicial acts in usurping jurisdiction by conspiring with the Secretary for Justice in engineering the plot to trap [Choy] to jail”.  He alleged Suffiad J to have “committed judicial frauds in HCA 125 of 2005” and “fabricated story in his ruling in HCA 125 of 2005 without any denials of being a criminal judge himself”.  He accused Suffiad J to have committed the same crime as Hartmann J as well.

5.The Secretary for Justice was alleged to have engineered and carried out a plot to put Choy to jail and conspired with Hartmann and Suffiad JJ in violation of human rights and “deception as to the law” in the contempt proceedings.

6.The Chief Justice was sued for his alleged cover up of the crimes committed by Hartmann and Suffiad JJ and conniving and condoning such crimes.

7.The Chief Executive was sued because of his alleged failure to uproot the said crimes.

The striking out

8.On 29 November 2005, this court directed the case be listed on 5 December 2005 for Choy to show cause why the action should not be struck out.  The Defendants were not required to attend although they were given the liberty to do so if they so wish.  Ms Fung appeared for the Defendants on 5 and 13 December 2005.

9.The Writ contained very serious allegations which should not be advanced without cogent evidence supporting the same.  It is well established that the court will not allow allegations of such nature to be made without proper evidence and if they were made irresponsibly, it will exercise its inherent jurisdiction to strike out the same (see C S Low Investment v Freshfields [1991] 1 HKLR 12 at p.23A-D; Tam Chi Kok Garbiel v Fok Eugina HCA 1859 of 1992, 12 June 2003; “The Gagich” HCAJ 361 of 1995, 7 Jan 1997; 林哲民經營日昌電業公司及特佳機器廠有限公司CACV 122 of 2004, 29 Nov 2005, para. 25).

10.No evidence has been filed in this case.  However, this court can refer to judgments delivered in other cases in which Choy was a party in considering whether to strike out this action because the court can take judicial notice of these judgments and on the face of it, the allegations contained in the Statement of Claim are collateral attacks on previous judicial decisions.  For the purpose of the striking out application, I only need to refer to the following judgments concerning Choy:

(a) The judgments of Hartmann and Suffiad JJ of 25  October  2005, 7 December 2005, 12 December 2005 in HCMP 4694 of 2003;

(b) The judgment of Ma CJHC of 14 January 2004 in HCMP 4694 of 2003;

(c) The judgment of the Court of Appeal of 3 December 2004 in CACV 11 of 2004; and

(d) The judgment of Suffiad J of 10 August 2005 in HCA 125 of 2005;

Choy was a party to all those proceedings and the judgments are binding on him.

11.It is well established that collateral attack on judicial decision of competent jurisdiction is an abuse of process and therefore liable to be struck out.  The principle applies to attack on decisions in both civil and criminal matters, see Hunter v Chief Constable of West Midlands Police [1982] AC 529; Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394.  The proper course for an aggrieved party regarding a judicial decision against him is to appeal against that decision instead of starting a fresh action suing the judges. 

12.The claims of Choy in this action in substance seek to re-litigate HCMP 4604 of 2003 and HCA 125 of 2005.  As explained below, his contentions of conspiracy and fraud have no proper basis.

13.Choy did not have any proper evidence to support the serious allegations advanced by him in the present action.  The finding of contempt in HCMP 4694 of 2003 on the application of the Secretary for Justice cannot by itself be evidence of “conspiracy” between Hartmann and Suffiad JJ on the one part and the Secretary for Justice on the other part.

14.At the hearing of 13 December 2005, this court enquired with Choy about the basis for his allegation of conspiracy.  His answer is bizarre.  He said because he had written letters to the Defendants complaining about another judge and they did not reply to him, he was entitled to draw whatever inference he deemed fit.  He alleged the Defendants conspired together to put him in jail in order to silence him.  He also accused the Defendants of trying to shut him out in respect of certain stock frauds.  No person in his right mind would accept such a fanciful theory as evidence to support the very serious allegations that Choy sought to put forward. 

15.Choy obviously did not agree with the decision of Hartmann and Suffiad JJ in HCMP 4694 of 2003 and that of Suffiad J in HCA 125 of 2005.  But that does not justify his allegations that the judges committed “judicial cheating”, “judicial fraud” or “deception of the law”.  Choy was well aware of the difference between alleging a judge reached the wrong conclusion and alleging a judge of fraud and cheatings.  He had been reminded of this elementary proposition repeatedly, see for example the judgment of Cheung J in Ng Yat Chi v China Resources (Holdings) Co Ltd  HCA 424 of 2005, 4 July 2005 Paras.10 to 12; the judgment of Hartmann and Suffiad JJ in HCMP4694 of 2003, 25 October 2005, para.68.

16.In the Statement of Claim endorsed in the Writ in the present action, Choy set out the basis of his allegation that the contempt proceedings were unlawful in paragraphs 7 to 9.  He contended that given Rogers VP did not cite him for contempt, the Secretary for Justice could not move for contempt in the absence of any breach of court order.  He said the leave for committal proceedings to be commenced was granted by Hartmann J without jurisdiction because “the leave contravened O.52  1(2)(a)(ii) of High Court Civil Practice and Section 24-23(2)(a)(ii) of Archbold, Criminal Pleading, Evidence and Practice”.

17.There is no rule 1(2)(a)(ii) in Order 52 of our Rules of the High Court.  In contrast, there was such a rule in the English Rules of the Supreme Court prior to the introduction of the Civil Procedure Rules.  That rule reads:

“Where contempt of court is committed in connection with criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court, then, subject to paragraph (4), an order of committal may be made only by a Divisional Court of the Queen’s Bench Division.  This paragraph shall not apply in relation to contempt of the Court of Appeal.”

18.We do not have a similar rule in Hong Kong.  In any event, the contempt of Choy was committed in the face of the court in a civil appeal before the Court of Appeal.

19.In the current edition (viz.  2005) of Archbold, Criminal Pleading, Evidence and Practice and the Hong Kong Archbold, there is no Section 24-23(2)(a)(ii).  Insofar as Choy is referring to an old edition commenting on the English rule, it has no relevance in the present context.

20.As regards the fact that Rogers VP did not take action himself, the point has been dealt with by Ma CJHC in disposing of Choy’s application to strike out the contempt proceedings, see the judgment of Ma  CJHC in HCMP 4694 of 2003, 14 January 2004, Para.8(2).  Choy had appealed unsuccessfully against Ma CJHC’s decision in CACV 11 of 2004.  It is not open to Choy to re-litigate this in the context of the present action.

21.Choy’s allegation as to the unlawfulness of the contempt proceedings is completely misconceived.

22.At the hearing on 13 December 2005, Choy sought to attack the validity of the warrant of his arrest.  The point has been canvassed in the judgment of Hartmann and Suffiad JJ of 12 December 2005.  For reasons already given above, this court does not see any valid basis to re-visiting the point in this judgment.

23.In any event, even assuming for the sake of argument that Choy’s challenge as to the legality or regularity of the contempt proceedings has any substance, the proper course is for him to take the point in an appeal against the decision of Hartmann and Suffiad JJ instead of commencing a fresh action alleging the judges guilty of cheatings.

24.Choy was apparently under the misapprehension that he could somehow claim damages for false imprisonment if he successfully challenged the decision of Hartmann and Suffiad JJ.  He said that was the reason why he decided to start a fresh action rather than appeal.  If that were the real reason for his refraining from appealing, he better thinks twice because that line of thinking is seriously wrong.  There is absolutely no legal basis whatsoever to any claim of damages for false imprisonment.  As a matter of fact, false imprisonment is not a claim pleaded in this action.

25.Further, under Article 85 of the Basic Law, judicial officers are immune from being sued in respect of the performance of their judicial functions, see馬桂珍對歐陽桂如HCA 771 of 2002, 12 July 2002; CACV 313 of 2002, 18 November 2002; 馬桂珍對梁紹中 CACV 227 of  2002, 5  August 2002.  The acts of Hartmann and Suffiad JJ that formed the subject matters of Choy’s claims in this action are those in furtherance of the performance of their judicial functions. 

26.Once the allegations of judicial cheatings and conspiracy are demonstrated to be without substance, there is no legitimate basis for Choy to sue the Chief Executive and the Chief Justice.

27.The claims of Choy in this action are wholly and plainly devoid of merit.  It is vexatious and it constitutes an abuse of process.  More specifically, it is yet another attempt by Choy to scandalize the judges who decided a matter against him.  Instead of hurling abuses to the judges at the hearing before them (as he did before Rogers VP), Choy switched to putting forward such abuses in the form of a civil action against the judges.

28.When a writ of summons is issued, the court’s coercive power is evoked.  A writ issued from the Registry bore the seal of the court and it is an instrument bearing a demand by the Registrar that a defendant shall either satisfy the claim or return an acknowledgment of service, coupled with a statement that failure to do either may result in judgment being entered without further notice.  Hence, it is not a mere act by the plaintiff.

29.In a plain and obvious case where it is apparent on the face of the Statement of Claim itself that it has no merit whatsoever, the court has a discretion to strike out the writ on its own motion.  In addition to the cases cited in Paragraph 9 above, see Ng Yat Chi v China Resources (Holdings) Co Ltd, HCA 424 of 2005, 12 Aug 2005, paras. 26 to 35; 馬桂珍對香港特區政府HCA 1122 of 2005, 8 September 2005, paras.7 to 14; 葉志偉對李卓人 HCMP 2411 of 2005, 5  December 2005.

30.For reasons set out in the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, the court has to be more proactive in these days in exercising its inherent jurisdiction to curb abusive proceedings.  In paragraph 6 of that judgment, the Chief Justice highlighted the importance of the court being vigilant in preventing the abuses of its own process:

“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)

31.In the judgment delivered on 25 October 2005, Hartmann and Suffiad JJ identified public confidence in the administration of justice by the judiciary as the ultimate authority of the law.  This serves as the rationale for the offence of scandalizing the court as a species of criminal contempt of court, see paragraphs 41 to 53.  Public confidence in the judicial process will be undermined if the court were to permit its process to be continuously misused by a contemnor and recalcitrant vexatious litigant to perpetuate his crime and abuse in a disguise by scandalizing the court in a Writ against the judicial officers who found him to be in contempt.

32.In the circumstances, I am of the view that it is appropriate for the court to exercise its inherent jurisdiction on its own motion to strike out Choy’s claims and dismiss the present action.  I would indeed go further to say that the proper administration of justice demands this to be done.  I ordered accordingly on 13 December 2005.

The Restricted Proceedings Order

33.According to the authorities, in dealing with a RPO application, the court can make reference to the findings in previous judgments of the court in assessing the extent to which a litigant had engaged in litigations of a vexatious nature, 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).  In addition to the judgments mentioned in the context of striking out, I have been referred to the following judgments:

(a) The judgments of A Cheung J of 4 July 2005 and 12  August  2005 in HCA 424 of 2005;

(b) The judgment of A Cheung J of 11 July 2002 in HCA 119 of 2001; and

(c) The judgment of the Court of Appeal of 20 May 2003 in CACV 303 of 2002.

Choy was a party in (a) and appeared for Phoon Lee Piling Co Ltd in (b) and (c).

34.Further, given the finding by A Cheung J in Paragraphs 75 to 79 of the judgment in HCA 424 of 2005, 10 August 2005 that Choy was and is the main instigator behind the previous proceedings alluded to in that judgment, this court is entitled to take into account what the Court of Final Appeal said in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 with regard to the vexatious nature of such proceedings instigated by Choy.

35.On 29 November 2005, this court made a Restricted Proceedings Order on its own motion without hearing any parties.  The order is in the following terms:

(a) that the Plaintiff Choy Bing Wing is prohibited from commencing any fresh proceedings by whatever originating process (“fresh proceedings”) concerning any matters involving or relating to or touching upon or leading to HCA  119 of 2001, CACV 303 of 2002, HCMP 4694 of 2003, HCA 125 of 2005, HCA 424 of 2005 and HCA 2351 of 2005 without the leave of Lam J being first obtained;

(b) that all applications for leave to issue fresh proceedings covered or which may be covered by the RPO (“RPO leave applications”) must be made in writing to Lam J (and not to any other judge or to a master) enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced;

(c) that in the event that Lam J is not available to deal with the RPO leave application, the same should be dealt with by another judge designated by the Chief Judge of the High Court;

(d) unless discharged in the meantime, this injunction shall continue until the determination by the court after the hearing on 5 December 2005 as to whether this injunction should continue and if so, for how long; and

(e) Choy Bing Wing shall be at liberty to apply to Lam J, and if Lam J is not available to another judge designated by the Chief Judge of the High Court, to discharge this injunction.

36.It was also directed that submissions would be heard on 5  December 2005 as to whether the RPO shall continue, and if so, on what terms.  The hearing of 5 December was adjourned to 13 December 2005.

37.Prior to the commencement of this action, A Cheung J had made another Restricted Proceedings Order against Choy in HCA 424 of 2005, 12 Aug 2005.  The previous proceedings identified in that Restricted Proceedings Order are HCCW 321 of 1996, HCA 2039 of 2002, HCSD 22 of 2002 and HCA 424 of 2005.  Insofar as the present action touches upon matter raised in HCA 424 of 2005 and the decision of Suffiad J in that action, it is caught by that order and no leave has been granted by the designated judge for commencement of the action.  As one of the designated judge, I can dismiss the action pursuant to that Restricted Proceedings Order.

38.There are new matters alluded to in the Statement of Claim.  Bearing in mind the history leading to the issue of the Writ in the present action as mentioned above, the finding by the court in HCMP 4694 of 2003 that Choy deliberately made verbal attacks against Rogers VP with a view to achieve his objective in forum shopping, and given the extent to which Choy is prepared to go in the misuse of legal process as demonstrated by this action (repeating his tactics of making groundless attacks against judicial officers) and what he had done before Rogers VP and in other actions, there is every risk that he would file further abusive proceedings if no injunction is granted against him in the meantime.  Such abusive proceedings will unjustifiably prolong the disposal of the present action and occasion further wastage of judicial resources.

39.The court has inherent jurisdiction to grant interlocutory injunction in Restricted Proceedings Order matters, see Re Blackstone [1995] COD 105; AG v Parkinson [1999] EWCA Civ 1178; AG v Mensah [2004] EWHC 1441 (Admin).  Given the rationale behind this type of orders as explained by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, in appropriate cases, the court can make an interlocutory order on its own motion to prevent the abuses of its own process.

40.Choy’s conducts at the hearing on 13 December 2005 reinforced my view that there is a high risk that Choy will continue to launch abusive proceedings.  Apart from his contentions set out above, Choy said he had not made any apology before Hartmann and Suffiad JJ and the media had misquoted him in the newspaper.  He had no qualm in alleging this court to be dishonest in an attempt to seek a recusal.  His attitude towards the court remains contemptuous.  He showed no remorse whatsoever towards what he had done in the past.  The only regret he had, according to him, was that his purpose could not be achieved.

41.Having regard to all the circumstances, I concluded that it was proportionate to grant the RPO on 29  November  2005 to curb further abuses of the court’s process immediately.  Choy has proved himself to be a recalcitrant vexatious litigant who habitually made wild and scurrilous attacks against judicial officers with a hope to achieve his misconceived ends.  The actions he sought to bring have most if not all the features of vexatious proceedings identified in the authorities discussed in Paragraphs 38 to 40 of my judgment in Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16  December  2005.  The court should not allow such actions to be brought.

42.I see no reason why the RPO should not continue and I shall therefore order that the RPO in terms of paragraphs (a), (b) and (c) shall become permanent.

43.In addition, given his repeated attempts to target judicial officers in his attacks to achieve his misconceived objectives, it is appropriate to extend the RPO to include proceedings in whatever form against any judicial officers regarding their performance of judicial duties.

44.The revised RPO is therefore in the following terms:

(a) that Choy Bing Wing is prohibited from commencing any fresh proceedings by whatever originating process (“fresh proceedings”) concerning any matters involving or relating to or touching upon or leading to HCA 119 of 2001, CACV 303 of 2002, HCMP 4694 of 2003, HCA 125 of 2005, HCA 424 of 2005 and HCA 2351 of 2005 or any other fresh proceedings against any judicial officers in respect of or relating to their performance of judicial duties without the leave of Lam J being first obtained;

(b) that all applications for leave to issue fresh proceedings covered or which may be covered by the RPO (“RPO leaveapplications”) must be made in writing to Lam J (and not to any other judge or to a master) enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced;

(c) that in the event that Lam J is not available to deal with the RPO leave application, the same should be dealt with by another judge designated by the Chief Judge of the High Court;

(d) that at least 7 days before filing an RPO leave application, Choy Bing Wing should notify in writing each intended defendant of his intention to make such application, enclosing a copy of the aforesaid draft document by which the fresh proceedings are intended to be commenced, and if a response is received by the applicant, that he should file a copy thereof with his RPO leave application; and that, in any event, each intended defendant should be entitled, but under no obligation, to place before the court any desired representations regarding any such intended proceedings of which he has notice;

(e) that all RPO leave applications and all matters ancillary thereto should be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs;

(f) if Choy Bing Wing should issue fresh proceedings covered or which may be covered by the RPO without first seeking the court’s leave:

(i) and if such fact should come to the notice of the Registry or to the notice of any master or any judge, the Registry, master or judge in question should refer those proceedings to the designated judge for a decision as to whether they should be permitted to continue or be dismissed;

(ii) whether or not the proceedings are brought to the notice of the designated or some other judge, if a defendant is served with such proceedings unaccompanied by either an order giving leave to proceed or a direction that leave is not required, such defendant should be entitled to make no response pending notification of the court’s decision in relation to those proceedings; and, in so far as necessary, time for acknowledging service or for otherwise responding to such proceedings should be deemed extended accordingly.

(g) notice of the judge’s decision disposing of the RPO application or giving directions in relation to proceedings commenced without prior leave should be given by the court to Choy Bing Wing and to each defendant named in the fresh proceedings.

45.As regards the costs of the hearing of 5 and 13  December  2005, Choy contended that since the striking out and RPO was granted on the court’s own motion, he should not be required to pay the costs of the Defendants though they chose to appear.  I do not accept that argument.  In my judgment, a defendant is entitled to appear in hearings of similar nature though he is not obliged to.  Unless there are special considerations, the proper analysis is that the costs of these hearings were caused by the vexatious proceedings that were struck out.  There is no reason why Choy should not be liable for the consequences of his own vexatious acts.  In the circumstances, I order Choy to pay the costs of the Defendants, such costs to be taxed if not agreed.

46.Lastly, in the light of the persistence of Choy in making unfounded allegations against judges at the hearing on 13 December 2005 and his complete lack of remorse with regard to his contempt, it is necessary to remind him that the court may consider further actions against him in respect of his conduct in this action.  His attention is also drawn to paragraphs 58 to 63 of my judgment in Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16  December  2005.

Plaintiff, in person

Miss Jenny Fung, SGC of Department of Justice, for the 1^st to 5^th Defendants