Yuen Oi Yee Lisa v. Mr Ho Yiu Kuen Jacky and Others
Read the full judgment text of DCCJ 3524/2005 on BabelCite. This District Court judgment.
1. The Plaintiff (“ Madam Yuen ”) issued the present proceedings on 23 rd July 2005 against eight defendants. The 5 th to 8 th Defendants were overseas entities.
|
DCCJ3524/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3524 OF 2005
BETWEEN
Coram: H H District Judge Marlene Ng in Chambers (open to the public) Date of Hearing: 11th January, 2006 Date of Handing Down Decision: 13th January, 2006
D E C I S I O N
Background 1.The Plaintiff (“Madam Yuen”) issued the present proceedings on 23rd July 2005 against eight defendants. The 5th to 8th Defendants were overseas entities. 2.Messrs Johnson Stokes & Master (“JSM”) act on behalf of the 1st to 3rd Defendants, namely, Mr Ho Yiu Kuen Jacky (“Mr Ho”), Mr Chan Kam Wah Kent (“Mr Chan”) and Heath Company Limited (“Heath”). On 4th August 2005, Mr Ho, Mr Chan and Heath through their solicitors filed two summonses, one seeking a restricted proceedings order with ancillary directions (the “RPO Summons”) and the other seeking to strike out Madam Yuen’s claim against them under Order 18 rule 19 of the Rules of the District Court and the court’s inherent jurisdiction on the ground that the claim was frivolous, vexatious and an abuse of process of the court, or alternatively seeking a determination of certain questions of law and dismissal of the claim against them (the “1st Striking Out Summons”). 3.Messrs Kennedys (“Kennedys”) act for the 4th Defendant, Mr Lai Yu Fai (“Mr Lai”). On 5th August 2005, Mr Lai by his solicitors filed a summons similar to the 1st Striking Out Summons to strike out or dismiss Madam Yuen’s claim against him (“2nd Striking Out Summons”). 4.On 10th August 2005, I adjourned the RPO Summons and the 1st and 2nd Striking Out Summonses to 3rd October 2005 for argument. Such hearing date was subsequently vacated and the summonses were adjourned to 16th and 17th January 2006 for argument. 5.On 28th December 2005, Lam J in HCA96/2005 (Madam Yuen v Heath) and HCA509/2004 (Madam Yuen v Heath and Mr Lai) granted inter alia the following orders ( “Lam J’s Order”) :
6.By reason of the RAO, irrespective of the 1st and 2nd Striking Out Summonses, Madam Yuen cannot make further applications in the present proceedings against inter alia Mr Ho, Mr Chan, Heath and Mr Lai without leave of the designated judge. Madam Yuen informs me at the hearing on 11th January 2006 that she does not intend to appeal against the RPO and the RAO. So far, the designated judge has not granted any RPO and/or RAO leave. The issues 7.Given the above developments, I gave directions that Madam Yuen and the solicitors for Mr Ho, Mr Chan, Heath and Mr Lai do attend a case management hearing on 11th January 2006 (the “Hearing”) to consider the following matters :
RPO Summons 8.The RPO Summons has been overtaken by Lam J’s Order and the RPO. The prohibition against Madam Yuen from commencing any fresh action in the District Court concerning any matters involving or relating to or touching upon or leading to the proceedings in DCCJ5441/2003, the consolidated DCCJ7079/2003, DCEO18/2004, DCCJ442/2005, DCCJ378/2005 and the present proceedings applied for in the RPO Summons is already covered by Lam J’s Order and the RPO. 9.The RPO is binding on this court. I agree with Ms Lam, solicitor Mr Ho, Mr Chan and Heath, that it is unnecessary to hear the RPO Summons. Indeed, Madam Yuen does not seek to re-argue the RPO. I therefore make no order in respect of the RPO Summons. As agreed between Ms Lam and Madam Yuen, there will be no order as to costs in respect of the RPO Summons. The parties’ positions on the 1st and 2nd Striking Out Summonses 10.Lam J’s Order provides that Madam Yuen is “at liberty” to resist or respond to the 1st and 2nd Striking Out Summonses. 11.Ms Tsang, solicitor for Mr Lai, informs the court that Mr Lai has issued applications to strike out Madam Yuen’s claims against him in HCA509/2004, DCEO3/2005 and the present proceedings. Ms Tsang submits that at the hearing on 20th December 2005 before Lam J Madam Yuen was willing to transfer the present proceedings and DCEO3/2005 to the Court of First Instance so that they can be dealt together with HCA509/2004, and consequently Lam J by his order granted liberty to Madam Yuen to apply jointly with Mr Lai for such transfer. Ms Tsang says that it will save costs if Lam J can hear all three of Mr Lai’s striking out applications. She therefore suggests that the hearing of the 2nd Striking Out Summons on 16th and 17th January 2006 be vacated and adjournedso that Mr Lai can apply to transfer the present proceedings to the Court of First Instance and restore the 2nd Striking Out Summons before Lam J. Ms Tsang confirms it is Mr Lai’s intention to pursue all three striking out applications and to seek costs against Madam Yuen. Ms Tsang says that recovery of costs is important for Mr Lai, who as an individual litigant does not have deep pockets. 12.Ms Lam submits that since the RAO covers the present proceedings and Lam J has indicated it is unlikely he will give leave to Madam Yuen to proceed with any of her applications in the present proceedings, including any application to set the present proceedings down for trial, Mr Ho, Mr Chan and Heath wish to adjourn the 1st Striking Out Summons sine die with liberty to restore in case of future change in circumstances in respect of the present proceedings. 13.Ms Lam argues that in the absence of any RPO and/or RAO leave, to proceed with the 1st Striking Out Summons to its conclusion will defeat the rationale of the RAO. Any substantive decision on the merits in respect of such summons may attract an application to the Court of Appeal for leave to appeal, which application will not come under the umbrella of the RPO and/or the RAO. Ms Lam reminds that there is presently no extant proceedings by Madam Yuen against Mr Ho, Mr Chan and Heath other than appeals and application for leave to appeal to the Court of Appeal. But Ms Lam emphasises that liberty to restore the 1st Striking Out Summons is essential to cater to the possibility that Madam Yuen may seek to circumvent the RPO and the RAO or attempt to set-off her present claim against Mr Ho, Mr Chan and Heath in order to oppose anticipated enforcement of costs orders against her in other proceedings. 14.Madam Yuen by her various letters to the court dated 29th and 30th December 2005 and 5th and 7th January 2006 indicates that she wishes to resist the 1st and 2nd Striking Out Summonses. She insists that such summonses should be heard on 16th and 17th January 2006 and she has no intention to apply jointly with Mr Lai to transfer DCEO3/2005 and the present proceedings to the Court of First Instance. 15.Madam Yuen was previously amenable to have all three striking out applications in the present proceedings, DCEO3/2005 and HCA509/2004 dealt with together. But she is presently concerned that the hearing of the 1st and 2nd Striking Out Summonses will be substantially delayed if the hearing on 16th and 17th January 2006 is vacated and re-listed before Lam J upon transfer to the present proceedings to the Court of First Instance. She fears that in the meantime Mr Lai will disappear. 16.The different positions adopted by the parties clearly call for a case management decision by the court. The court takes into account not only the balancing exercise amongst the parties for the just, efficient and fair disposal of the 1st and 2nd Striking Out Summonses in light of the developments since the hearing dates of 16th and 17th January 2006 were fixed on 14th September 2005, but also the demands that will be made on the court’s time and resources in continuing with the 1st and 2nd Striking Out Summonses in all the circumstances. In modern civil litigation, case management is a skill which judges are increasingly expected to exercise boldly and on own motion when necessary. But before I consider the way forward, it will be useful to appreciate the nature of the claims and issues in the present proceedings and in HCA509/2004. The present proceedings and HCA509/2004 17.In HCA509/2004, Madam Yuen sues Heath and Mr Lai for defamation premised inter alia on (a) two allegedly defamatory and false letters sent to the Equal Opportunities Commission (the “EOC”) by Heath signed by Mr Lai and Mr Steve Marcum respectively (the “EOC Letters”) which allegedly caused the EOC to discontinue its investigation into Madam Yuen’s sex discrimination complaint, and (b) Mr Lai’s conduct in allegedly misleading Mr Steve Marcum as well as aiding and abetting a majority of Heath’s staff members to provide allegedly defamatory and false witness statements to the EOC, issue a letter allegedly defamatory of Madam Yuen to Heath on 21st February 2003 (the “21/2/03 Staff Letter”) and tender mass resignation on 5th March 2003 to coerce Heath’s management to get rid of Madam Yuen. 18.Heath applied to strike out Madam Yuen’s claim in HCA509/2004 and filed Ms Lam’s affidavit in support. The EOC Letters exhibited to Ms Lam’s affidavit enclosed some supporting materials and a number of witness statements by Heath’s staff members, including those of Mr Ho and Mr Chan (“Ho’s and Chan’s Statements”). 19.On 2nd December 2004, Tang J (as he then was) struck out Madam Yuen’s claim against Heath and held that absolute privilege or immunity from suit applied to documents supplied to the EOC for its investigations, which documents as disclosed to Madam Yuen were also subject to an implied undertaking not to misuse. 20.Similar to HCA509/2004, Madam Yuen’s claim in the present proceedings is also set in the context of events in relation to the termination of her employment with Heath. Her claim is for inter alia damages for defamation and malicious falsehood based on Ho’s and Chan’s Statements to Mr Lai and Heath’s top management, which statements Madam Yuen received from JSM as part of an exhibit to Ms Lam’s affidavit in HCA509/2004. 21.According to Ms Lam’s affidavit filed in support of the 1st Striking Out Summons, subsequent to the EOC Letters, Mr Ho and Mr Chan requested withdrawal of Ho’s and Chan’s Statements and hence the EOC did not forward such statements to Madam Yuen. Ms Lam agrees that such statements were disclosed in her affidavit in support of Heath’s striking out application in HCA509/2004 as part of the complete set of materials sent by Heath to the EOC. 22.In support of the 1st and 2nd Striking Out Summonses in the present proceedings, Mr Ho, Mr Chan, Heath and Mr Lai rely on inter alia the defence of absolute privilege and immunity from suit in respect of Ho’s and Chan’s Statements as being documents submitted to the EOC for its investigation and/or published to the court as part of Heath’s striking out application in HCA509/2004. 23.On 31st October 2005, Mr Lai applied to strike out Madam Yuen’s claim in HCA509/2004 (the “HCA Striking Out Summons”). Ms Tsang’s supporting affidavit also refers to inter alia the EOC Letters, the EOC’s findings for dismissing Madam Yuen’s sex discrimination complaint and the above defence of absolute privilege and immunity from suit. 24.A common issue raised by Madam Yuen in her affirmations in opposition of the 1st and 2nd Striking Out Summonses and the HCA Striking Out Summons is the date when she received the 21/2/03 Staff Letter. Madam Yuen claims Mr Lai blind-copied the 21/2/03 Staff Letter to her by e-mail on 28th February 2003 and told her of such document at an early stage by telephone, but this is denied in Ms Tsang’s affidavits in support of both the 2nd Striking Out Summons and the HCA Striking Out Summons. 25.Ms Tsang further argues that collateral use of the 21/2/03 Staff Letter to ground or support Madam Yuen’s present claim is not permissible because Madam Yuen has in previous proceedings admitted she received such letter from the EOC. Ms Tsang’s affidavits in support of the striking out applications in both HCA509/2004 and the present proceedings point out that the 21/2/03 Staff Letter has already been the subject matter of Madam Yuen’s claim in DCCJ7081/2003 for damages for defamation against Mr Chan. In DCCJ442/2005 Madam Yuen has also pleaded that the 21/3/03 Staff Letter was first received from the EOC. DCCJ7081/2003 was subsequently consolidated with seven other defamation actions commenced by Madam Yuen against staff members of Heath to become the consolidated DCCJ7079/2003. Madam Yuen’s consolidated statement of claim in DCCJ7079/2003 again claims for damages for malicious falsehood based on the 21/2/03 Staff Letter, which is pleaded as having been obtained from the EOC. 26.H H Judge H C Wong in her judgment of 20th July 2005 in respect of DCCJ378/2005, DCCJ442/2005 and the consolidated DCCJ7079/2003 confirmed the decision by Tang J (as he then was) in HCA509/2004 that the materials submitted to the EOC (including the 21/2/03 Staff Letter) were privileged and subject to an implied undertaking not to misuse. H H Judge H C Wong therefore struck out Madam Yuen’s claims against inter alia various staff members of Heath including Mr Ho and Mr Chan. 27.Ms Lam’s and Ms Tsang’s affidavits filed in support of the 1st and 2nd Striking Out Summonses also rely on the ground of abuse of process as a result of Madam Yuen (a) bringing fresh proceedings against Mr Ho, Mr Chan, Heath and Mr Lai for defamation and malicious falsehood based on materials generated in association with investigations by the EOC when they could have been raised in HCA509/2004 and the consolidated DCCJ7079/2003 and (b) making collateral attacks on the previous judgments of Tang J (as he then was) and H H Judge H C Wong. 28.Ms Tsang reiterated the above grounds in her affidavit in support of the HCA Striking Out Summons in HCA509/2004. Ms Tsang’s affidavits in support of both the 2nd Striking Out Summons and the HCA Striking Out Summons further refers to various e-mails from Madam Yuen, which are said to reveal that Madam Yuen’s intention in pursuing proliferating litigation is to prolong the proceedings and aggravate the defendants’ legal costs so as to force a settlement to support her early retirement. 29.Madam Yuen in her affirmations in opposition of the 1st and 2nd Striking Out Summonses in the present proceedings and the HCA Striking Out Summons in HCA509/2004 took issue over most of the above matters. She denies that the defence of absolute privilege and immunity from suit is applicable to Ho’s and Chan’s Statements since she received them from JSM and not from the EOC. I have considered her affirmations, but it is unnecessary to describe her contentions in detail at this stage. Suffice to say there is substantial commonality of the factual matters and other arguments relied on by Madam Yuen for opposing the 1st and 2nd Striking Out Summonses and the HCA Striking Out Summons. Further developments 30.On 29th December 2005, Madam Yuen applied to Lam J for leave to amend the Statement of Claim in the present proceedings or to commence fresh proceedings against the same defendants as in the present proceedings to seek further remedies against them. 31.In fact, the draft Statement of Claim (the “Draft”) attached to Madam Yuen’s application to Lam J is the same as the Statement of Claim endorsed on the writ of summons she issued out of the High Court Registry on 21st November 2005, but which was eventually withdrawn. I note, however, that the intended defendants named in the Draft included Mr Steve Marcum (not a defendant in the present proceedings) but did not include Mr Ho and Mr Chan (who are defendants in the present proceedings). Further, Madam Yuen’s claim for damages of HK$30 million in the Draft without waiver of the amount in excess of HK$1 million is outside the jurisdiction of the District Court. 32.Madam Yuen in her submissions at the Hearing accepts that she has previously attempted to commence a claim for HK$30 million in the High Court, but she claims she was prevented from doing so and was therefore forced to commence the present proceedings with her claim capped at HK$1 million. However, she says in her letter to Lam J dated 29th December 2005 that it was “[after] taking the kind advice of Mr. Registrar Chan of your Court, I have withdrawn this action after having refunded of HK$1,045.00”. 33.Madam Yuen’s claim in the Draft is for damages for breach of an alleged promise/contract by Mr Lai on Heath’s behalf. It avers that Mr Lai issued an apology letter dated 24th May 2003 on Heath’s behalf pursuant to a settlement agreement. The apology letter stated they would use their best endeavours to restrain any defamatory statement against Madam Yuen by any of their staff, but in alleged breach thereof Mr Lai aided and abetted Mr Ho and Mr Chan to give the allegedly false and defamatory Ho’s and Chan’s Statements to the EOC and to Heath’s top management in the United States, including Mr Steve Marcum. 34.The Draft goes on to plead that Mr Ho and Mr Chan requested Mr Lai to withdraw Ho’s and Chan’s Statements from the EOC, which Mr Lai did and the EOC deleted such statements from their records. Yet Heath’s top management in the United States still had Ho’s and Chan’s Statements, which were given to JSM and exhibited to Ms Lam’s affidavit for Heath’s striking out application in HCA509/2004. 35.Madam Yuen claims in the Draft that Mr Lai misled Heath’s top management into believing the allegedly false and defamatory statements signed by the staff and the bad relationship between Madam Yuen and the staff (which were untrue) and tricked Mr Steve Marcum into terminating Madam Yuen’s employment following threatened mass resignation by the staff. Madam Yuen further claims that the allegedly false and defamatory statements caused Heath’s top management not to inform her of the identity of her two ex-employers whom Ms Sally Chong contacted, which caused Madam Yuen to lose a good job opportunity. 36.On 4th January 2006, Lam J directed that “[if] Madam Yuen wishes to put forward an amended version of her statement of claim to resist the striking out application by Lai, she is at liberty to do so. However, she is not allowed to commence fresh proceedings. Her application to commence fresh proceedings is refused as it is another attempt to re-litigate matters”. 37.By a letter dated 5th January 2006 to this court, Madam Yuen claims that Lam J has allowed her to amend the Statement of Claim in these proceedings to resist the striking out applications and urged me to consider the Draft for the purpose of the Hearing. 38.Pursuant to JSM’s request for clarification of his directions, Lam J on 6th January 2006 clarified that : “I have no jurisdiction to grant any leave to amend to Madam Yuen. Nor have I done so in my refusal of RPO leave on 4th January 2006.” As explained in paragraph 40 of Lam J’s Reasons for Decision dated 9th January 2006 (the “Reasons”), he is not presently seized with the present proceedings except as regards the RPO and RAO leave applications. Only this court has jurisdiction prior to any transfer of the present proceedings to the Court of First Instance. 39.Madam Yuen is at liberty to “put forward” an amended version of the Statement of Claim solely as a shield and not as a sword. At best, the court adjudicating on the striking out application may, if it thinks appropriate, consider the Draft in its deliberations. However, as this court is seized with the present proceedings, I have no hesitation in refusing any application to amend the Statement of Claim as per the Draft by adding the causes of action averred therein and Mr Steve Marcum as a further defendant. 40.The intended causes of action in the Draft constitute additional claims. They are the same as the subject matters covered by the RPO. I note that the RPO restrains Madam Yuen from commencing any fresh proceedings concerning inter alia (a) Heath’s breach of the settlement agreement, including the alleged instructions to staff to give written statements to the EOC, (b) Heath’s refusal to provide Madam Yuen with the names of the ex-employers contacted by Sally Chong, (c) all facts and matters covered the settlement agreement, (d) all statements and information supplied by Heath and Mr Lai to the EOC in connection with Madam Yuen’s complaints against them under the Sex Discrimination Ordinance and all matters leading to the provision of such statements and information, (e) the witness statements of inter alia Mr Ho and Mr Chan and all matters leading to the drafting/preparation of such statements, (f) the mass resignation letter of 27 staff members of Heath dated 5th March 2003 and all matters leading to and/or the drafting and preparation of the same, and (g) Heath’s termination of Madam Yuen’s employment on 6th March 2003 and all matter leading to or resulted in that decision (see RPO and Part B of Schedule 1 of Lam J’s Order). 41.As regards the interpretation and application of the RPO, I refer to paragraph 13 of Practice Direction 11.3, which provides that there should be regard to the substance of the proposed applications or proceedings and not merely to their form. Accordingly, collateral attacks made outside the proceedings covered by a restricted application order may in substance be merely a device to re-open without justification some matter already determined in those proceedings or otherwise an abuse of the process in respect of those proceedings and, if so, may be treated as applications within those proceedings, caught by the restricted application order. Further, where new proposed proceedings involve new elements or parties not found in the concluded proceedings referred to in the restricted proceedings order, but are nevertheless in substance merely an unjustified attempt to re-litigate those proceedings, such proposed proceedings may be treated as falling within the restricted proceedings order. 42.Given that the spirit of restricted proceedings orders and restricted application orders is to consider the substance and not the form, and considering the nature of the claims in the Draft, it is plain that the proposed causes of action fall squarely within the subject matters caught by the RPO and the RAO. Any amendment that attempts to re-litigate those issues should not be countenanced. 43.Further, Madam Yuen has in HCA96/2005 applied to set aside the settlement agreement with Heath in order to sue on the allegedly defamatory witness statements made by Heath’s staff members (including Ho’s and Chan’s Statements) supplied to the EOC, which she is otherwise debarred from doing by reason of the settlement agreement. Madam Yuen has also pleaded in HCA96/2005 the refusal or failure by Heath to reveal to her the identity of her two ex-employers whom Sally Chong has contacted. It is clear that any attempt to amend the Statement of Claim in the present proceedings to add the causes of action averred in the Draft will be tantamount to an attempt at re-litigation of the matters already raised in HCA96/2005 and determined by A Cheung J in his judgment dated 16th November 2005 when he struck out Madam Yuen’s claim. 44.Insofar as such contentions have been raised in Madam Yuen’s other proceedings against Heath and been rejected, Madam Yuen cannot raise them again by reason of issue estoppel. If she has not raised such arguments in earlier proceedings when she could and should have raised them, she cannot do so now by reason of res judicata in the Yat Tung sense. 45.Ms Lam submits that the principle of issue estoppel is also of assistance to Mr Ho, Mr Chan and Mr Lai since they are Heath’s privies (Halsbury’s Laws of Hong Kong Vol.11(2) (2005 Reissue) para.[170.027] at pp.280-283). Normally, privies are persons who are privy to the parties in blood, title or interest. But since a company has a different personality to that of its shareholders or directors, it is doubtful whether such term includes the directors or shareholders of companies (Johnson v Gore Wood & Co (a firm) [2002] 1 AC 1, 60) and, by the same token, whether it applies to employees or ex-employees. 46.However, it is unnecessary for me to decide this point. The causes of action in the Draft are obviously vexatious and an abuse of the legal process. I heartily adopt what Lam J said in paragraph 11 of the Reasons as follows :
I therefore refuse any amendment of the Statement of Claim in the present proceedings as per the Draft. Disposal of the 1st Striking Out Summons 47.As stated above, apart from the present proceedings, there are no other extant first instance proceedings against Mr Ho, Mr Chan and Heath. Further, the designated judge has not granted any RPO and/or RAO leave to date. It is against such background that I now proceed to consider the 1st Striking Out Summons. 48.The aim of a striking out summons is to put a stop to proceedings. However, the RPO and the RAO already restrain Madam Yuen from progressing the present proceedings to trial irrespective of the 1st Striking Out Summons. Even if Madam Yuen successfully resists the 1st Striking Out Summons, it will not aid her in progressing her claim against Mr Ho, Mr Chan and Heath, so the situation will not be different from having the 1st Striking Out Summons adjourned sine die. In either case, the Statement of Claim remains in place but the proceedings are at a standstill. 49.Madam Yuen acknowledges she cannot progress the present proceedings to trial with the RPO and RAO in place. But she argues that since the only thing she can do now is to resist the 1st and 2nd Striking Out Summonses, she has no choice but to insist that such summonses be brought on for her to do so. In my view, this is not a sound reason for progressing the 1st Striking Out Summons to a full substantive hearing. Madam Yuen suggests she will take other steps to progress the present proceedings if she is successful in resisting the 1st Striking Out Summons, but she does not particularise the steps she has in mind. In any event, any further step/application in the proceedings requires RAO leave. 50.In such circumstances, no useful purpose will be served in pursuing the 1st Striking Out Summons, particularly as Ms Lam indicates Mr Ho, Mr Chan and Heath are agreeable to have costs of the 1st Striking Out Summons reserved if such summons is adjourned sine die pending revival upon future change of circumstances (if any). There is little discernible prejudice to Madam Yuen and on a broader view there appears to be little justification for making demands on the court’s time and resources to adjudicate on an application that has no material effect on the progress of the proceedings. 51.In coming to the above view, I have borne in mind that a striking out application seeks an order that is “final” in the sense that it terminates the claim, so it is arguable that ordinarily such application should not be lightly held in abeyance like the proverbial sword that hangs over the claimant’s head. But here the special circumstances of the RPO and the RAO and the fact there are no other extant first instance proceedings by Madam Yuen against Mr Ho, Mr Chan and Heath support the conclusion that it is appropriate to adjourn the 1st Striking Out Summons sine die. 52.I note that Lam J’s Order merely grants “liberty” to Madam Yuen to resist the 1st Striking Out Summons. It does not give her a “right” to dictate that such summons must be heard or how such summons should be case managed. If the 1st Striking Out Summons is adjourned sine die, Madam Yuen will still be “at liberty” to resist such summons if and when it is restored. 53.Madam Yuen raises a number of arguments in the course of her submissions and in her correspondence to the court, which I will deal with below. Suffice to say here I have considered her submissions and they do not sway me from the above conclusion. 54.I therefore conclude that the hearing of the 1st Striking Out Summons on 16th and 17th January 2006 should be vacated and that such summons be adjourned sine die with costs reserved and liberty to restore. Disposal of the 2nd Striking Out Summons 55.In respect of 2nd Striking Out Summons, Mr Lai applies to adjourn the 2nd Striking Out Summons for transfer of the present proceedings to the Court of First Instance and for the 2nd Striking Out Summons to be restored before Lam J to be heard together with the HCA Striking Out Summons. Ms Tsang therefore applies to vacate the hearing of the 2nd Striking Out Summons on 16th and 17th January 2006. She further submits that there is a purpose in pursuing the 2nd Striking Out Summons and the HC Striking Out Summons since Mr Lai intends to recover costs against Madam Yuen if he is successful in respect of these applications. 56.Pursuant to sections 41 and 42 of the District Court Ordinance Cap. 336, this court can of its own motion order the transfer to the Court of First Instance all or part of any action or proceeding within and/or outside the jurisdiction of this court. In my view, where it is appropriate and just to order a transfer of proceedings, it is the duty of the court to do so whether or not the parties agree or acquiesce. 57.For reasons given below, I find it appropriate and just to vacate the hearing of the 2nd Striking Out Summons on 16th and 17th January 2006, transfer the present proceedings to the Court of First Instance and adjourn the 2nd Striking Out Summons to be restored before Lam J for case management directions. Ms Lam informs me Mr Ho, Mr Chan and Heath adopt a neutral stance on this issue. 58.First of all, it is plain from the above descriptions of Madam Yuen’s claims in the present proceedings and in HCA509/2004 and of the factual issues and legal arguments for the 2nd Striking Out Summons and the HCA Striking Out Summons (including those for the assertion of abuse of process) that the same or similar disputes/arguments will be canvassed in both sets of proceedings. The two sets of proceedings are particularly intertwined because Ho’s and Chan’s Statements, which form the underlying basis of the present proceedings, are in fact annexures to the EOC Letters exhibited to Ms Lam’s affidavit filed in HCA509/2004. In my view, it is conducive to the just and efficient disposal of the 2nd Striking Out Summons and the HCA Striking Out Summons for them to be dealt with together irrespective of whether DCEO3/2005 can be transferred to the Court of First Instance. Even if the contents of the Draft were to be considered, as Madam Yuen asks me to, I note the Draft also touches on Ho’s and Chan’s Statements and on how such statements became part of an exhibit to Ms Lam’s affidavit in HCA509/2004, which matters also reinforce the above conclusion. 59.Madam Yuen submits that the present proceedings are different because (a) the previous proceedings are a waste of time and money due to Mr Lai’s non-appearance, (b) Mr Lai only entered an appearance after she served the originating process in HCA509/2004 on him by substituted service, and (c) she did not receive Ho’s and Chan’s Statements from the EOC so the defence of absolute privilege and immunity upheld in various previous judgments of the Court of First Instance and the District Court is not applicable. I do not find such arguments persuasive. They at best serve to illustrate that the present proceedings and HCA509/2004 have close commonality on the factual and legal disputes so that the 2nd Striking Out Summons and the HCA Striking Out Summons should be resolved together. 60.Secondly, as explained above, there is no discernible prejudice in adjourning the 2nd Striking Out Summons to be restored before Lam J for directions upon transfer of the present proceedings to the Court of First Instance. By reason of the RPO and the RAO, Madam Yuen cannot further progress her claim in the present proceedings without leave of the designated judge. 61.Thirdly, Lam J’s Order provides that Madam Yuen is “at liberty” to resist inter alia the 2nd Striking Out Summons. But, as discussed above, such “liberty” does not confer a right to dictate how the 2nd Striking Out Summons should be case managed. In my view, it is necessary to take into account the HCA Striking Out Summons and Lam J’s Order, both of which came after the fixing of the hearing dates of 16th and 17th January 2006 in September 2005. I have considered Madam Yuen’s arguments (discussed in more detail below) in the course of my deliberations, but note that a transfer of the present proceedings to the Court of First Instance will not limit Madam Yuen’s “liberty” in resisting the 2nd Striking Out Summons when it is restored before Lam J. 62.Fourthly, Madam Yuen raises a number of arguments in support her contention that the 2nd Striking Out Summons should be heard on 16th and 17th January 2006, none of which I find persuasive. 63.Madam Yuen claims that Heath’s staff members (who are not identified) have informed her Mr Lai is suffering from serious kidney problem and does not have long to live. Such bare assertion is wholly devoid of any support. Madam Yuen does not even name the source of her information. I attach no weight to such assertion. In any event, even if Mr Lai suffers from deteriorating health, it is irrelevant given that the RPO and the RAO prohibit the present proceedings from proceeding to trial. 64.Madam Yuen claims that Mr Lai has been avoiding his solicitors who are funded by Heath and that he is the “ringleader” identified in all her previous legal proceedings and a vital witness for her existing and future proceedings. But given that the RPO and the RAO prohibit the present proceedings from being set down for trial and that there is no RPO and/or RAO leave to date, Mr Lai’s role as a witness is not relevant. 65.Madam Yuen in her correspondence also criticises JSM’s and Kennedys’ conduct of the present proceedings and claims that their clients are adopting delaying tactics. However, the present stance adopted by Mr Ho, Mr Chan, Heath and Mr Lai turns on Lam J’s Order, which was only granted on 28th December 2005. The suggestion of delay is unfounded. In any event, I consider the objective circumstances of the present proceedings justify the transfer to the Court of First Instance. 66.Madam Yuen claims she is required to inform the Commissioner of Police about the hearing dates of the 1st and 2nd Striking Out Summonses. Indeed, she has by letter dated 29th December 2005 informed the police of the hearing dates of 16th and 17th January 2006 and she has further requested the police to provide information on the progress of their investigation. On 9th January 2006, she again wrote to urge the police to expedite their investigation and to attend the hearing on 16th and 17th January 2006. I see no merit in this argument and agree with Lam J (see paragraph 11 of the Reasons) that Madam Yuen has “repeatedly made unfounded allegations against Tang JA and lawyers acting for her opponents, including allegations of conspiracy”. In any event, the progress of police investigation into such matters is extraneous to the present proceedings and cannot dictate how the present proceedings should be case managed. 67.Madam Yuen seems to labour under the misapprehension that if the hearing of the 1st and 2nd Striking Out Summonses on 16th and 17th January 2006 are adjourned, it is incumbent for Mr Ho, Mr Chan, Heath and Mr Lai to file and serve their Defence to her claim in the present proceedings or for the court to order them to do so. However, without any RAO leave to date, Madam Yuen is not in a position to apply to this court to compel the filing of such Defence or to apply for judgment against Mr Ho, Mr Chan, Heath or Mr Lai in default thereof. In short, with the RPO and the RAO in place, Madam Yuen’s claim is at a standstill unless leave is obtained from the designated judge. 68.Although Madam Yuen claims in her affirmation in opposition of the 1st and 2nd Striking Out Summonses that the central focus of her claim against Mr Lai in HCA509/2004 is for damages for malicious falsehood and for aiding and abetting the majority of Heath’s staff to prepare and sign the allegedly defamatory 21/2/03 Staff Letter, I note that both Mr Chan and Mr Ho, ie defendants in the present proceedings, are signatories to that letter. Further, the 21/2/03 Staff Letter and the date when Madam Yuen received such letter feature not just in HCA509/2004 but also in her affirmation and Ms Tsang’s affidavit in respect of the 2nd Striking Out Summons. This again serves to underline my view that the HCA Striking Out Summons and the 2nd Striking Out Summons should be dealt with by the same court. 69.Madam Yuen in her letter of 7th January 2006 refers to Master Lung’s Order of 3rd November 2005 in HCA509/2004, which gave directions for the filing of affidavits in respect of the HCA Striking Out Summons. She says such order is important because the learned Master granted leave to Mr Lai to file and serve an affidavit in reply but he has failed to do so. Given the factual difference between Madam Yuen’s affirmation and Ms Tsang’s affidavit as to when and from whom Madam Yuen received the 21/2/03 Staff Letter, Madam Yuen suggests that by failing to file an affidavit in reply Mr Lai has either admitted her contentions or he is avoiding Kennedys due to his serious kidney problem. I am not seized with the HCA Striking Out Summons, but there is again no merit in this argument. Mr Lai has been granted leave to file an affidavit in reply; he has not been ordered to do so. Whether he actually wishes to do so is a matter for him to decide upon legal advice from his solicitors. Conclusion 70.In conclusion, I make no order in respect of the RPO Summons. In respect of the 1st and 2nd Striking Out Summonses, I order that (a) the hearing of the 1st and 2nd Striking Out Summonses on 16th and 17th January 2006 be vacated, (b) the 1st Striking Out Summons be adjourned sine die with costs reserved and liberty to restore, (c) the present proceedings be transferred to the Court of First Instance, (d) the 2nd Striking Out Summons be adjourned and restored before Lam J for case management directions upon the transfer of the present proceedings to the Court of First Instance, and (e) the costs of the present proceedings before the transfer to the Court of First Instance (other than any costs orders made by this court) be reserved to the discretion of the Court of First Instance. 71.For the avoidance of doubt, the interim stay of the present proceedings imposed by my order dated 10th August 2005 is lifted insofar as is necessary for granting the aforesaid orders and the costs order to be made below and to allow taxation of any costs order made by this court. 72.I share Lam J’s concern over the vexation exhibited by Madam Yuen by her propensity in writing numerous letters to the court and in copying her correspondence with others to the court. I entirely agree with Lam J’s observations in paragraphs 12 to 15 of the Reasons. Indeed, I have also found the need to make the following directions on 14th September 2005 in respect of the RPO Summons and the 1st and 2nd Striking Out Summonses :
73.Following the orders granted in paragraph 70 above, the District Court’s role in relation to the present proceedings is at an end. In future, this court will not read any correspondence sent to this court by Madam Yuen in respect of the present proceedings. 74.As regards the costs of and incidental to the Hearing, Ms Lam seeks costs against Madam Yuen in favour of Mr Ho, Mr Chan and Heath. Ms Tsang accepts that costs should be reserved and dealt with at the conclusion of the 2nd Striking Out Summons. Madam Yuen asks for costs to be reserved or for no order as to costs. 75.In respect of the costs of the Hearing between Madam Yuen and Ms Lam’s clients, I bear in mind there is no final determination on the merits in respect of the 1st Striking Out Summons as yet. However, I find it unjustified in all the circumstances for Madam Yuen to maintain her opposition to the adjournment of the 1st Striking Out Summons at the Hearing, particularly as she accepts the RPO and the RAO. I therefore grant a costs order nisi that Madam Yuen do pay the costs of Mr Ho, Mr Chan and Heath in respect of the Hearing to be taxed if not agreed. I do not consider it appropriate to grant costs “incidental” to the Hearing since the Hearing was at the court’s invitation and the correspondence that passed prior to such hearing was mainly for eliciting the respective positions adopted by the parties following Lam J’s Order. 76.I also grant a costs order nisi that the costs of the Hearing between Madam Yuen and Mr Lai be reserved and dealt with at the conclusion of the 2nd Striking Out Summons. But for the concession on costs by Ms Tsang, I would have ordered costs of the Hearing in favour of Mr Lai against Madam Yuen. Plainly, Madam Yuen was previously amenable to have the 2nd Striking Out Summons dealt with by the Court of First Instance after transfer of the present proceedings to that court as reflected in Lam J’s Order which gave leave to Madam Yuen to apply jointly with Mr Lai to effect such transfer. The Hearing has been necessitated by Madam Yuen’s retraction of her previous stance, but ultimately she fails in her refusal to adjourn the 2nd Striking Out Summons.
The Plaintiff in person and 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. |
Further hearings and rulings under DCCJ 3524/2005