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 Chambers

Date of Written Submissions on Costs:  22 February 2006

Date of Decision on Costs:  6 April 2006

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DECISION  ON  COSTS

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1.On 16 December 2005, I made an order under Section 27 of the High Court Ordinance against Madam Ma.  After I had handed down my judgment, the Secretary for Justice applied for costs.

2.This court invited parties to make written submissions on the application.  Further, as Madam Ma was declared bankrupt by the court in August 2005 in HCB 2943 of 2005, submissions were also invited from the Official Receiver.

3.The liability of Madam Ma stemming from whatever costs order this court shall make will not be a debt provable in bankruptcy in the context of HCB 2943 of 2005, see Vint v Hudspith (1889) 2 Ch 7; Re British Goldfields of West Africa (1889) 2 Ch 7; Re Golden Always Ltd [1996] 3 HKC 252.

4.Hence, the application is not in respect of a provable debt and leave to proceed is not required under Section 12(1) of the Bankruptcy Ordinance.

5.In general, a successful party should get the costs of the application.  I do not see any good reason in the present case for departing from that general rule.

6.However, in deciding on costs, the court can and should have regard to the background of the case.  One must not lose sight of the fact that we are dealing with a vexatious litigant who had been declared bankrupt.  There is no evidence before this court suggesting that Madam Ma or her estate would have assets, after discharging all the provable debts, to satisfy her liability for costs.  The vexation exhibited by Madam Ma included improper conducts in court proceedings and vexatious satellite interlocutory applications and hopeless appeals.

7.Against such background, I am of the view that public funds and judicial resources should not be wasted on meaningless taxation proceedings which may only serve to provide Madam Ma with further opportunities to repeat her previous conducts.

8.The Secretary submitted that a costs order can serve as a message to other vexatious litigants.  The costs order can also be enforced against Madam Ma after she is discharged from bankruptcy in HCB 2943 of 2005.

9.As regards the first point, a costs order without any taxation will serve the purpose.  In my judgment, the second point does not begin to answer why it would be meaningful to incur further costs and time on fruitless taxation proceedings.

10.In the circumstances, I will make an order that Madam Ma shall pay the costs of the Secretary but such costs shall not be taxed without the leave of this court.

Written submission by Ms Jenny Fung, SGC of Department of Justice, for the Plaintiff

No written submission by Ma Kwai Chun

Written submission by Miss Ada Sze, Solicitor, for Official Receiver