顏子亮 v. 西盟斯律師行

HCA519/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.519 OF 2006

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BETWEEN

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Before : Hon Burrell J in Chambers

Date of Hearing : 2 August 2006

Date of Decision : 2 August 2006

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D E C I S I O N

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1.This is an appeal against an order made by Master Hui on 28 June 2006, by which he struck out the plaintiff’s claim against Simmons & Simmons, a local international law firm, in writ HCA519/2006.  The plaintiff Mr Ngan Tse Leung has sought to appeal that decision by lodging a Notice of Appeal on 24 July 2006.  That Notice is out of time, the time being allowed for a Notice of Appeal to be lodged being 14 days from the date of the order.  Mr Ngan therefore seeks leave to appeal out of time first of all and, if leave is granted, he then asks for the appeal against Master Hui’s strike-out order to be allowed so that HCA519/2006 continues.

2.HCA519/2006 was commenced by the plaintiff because of what had happened in a previous action commenced by him, that is HCA40/2006.  In that action the plaintiff had sued a defendant which he named as the “Hong Kong Securities and Exchange Commission alias Hong Kong Exchange and Clearing Commission”.  He personally served that writ at the offices of the Securities and Futures Commission (the “SFC”).  They in turn properly and correctly acknowledged service of the writ that had been served at their offices and instructed their solicitors, Simmons & Simmons, to act for them and advise them on the writ that had landed on their desk.

3.Simmons & Simmons then, in the normal and proper course of events, filed a notice to act on behalf of their client, the SFC.  It is important to note that at this stage Simmons & Simmons were instructed by the SFC and not by the named defendant in writ HCA40/2006.  It is, I understand, correct to say that the defendant as named in that writ does not exist in fact or in law.  There is no such body.

4.Because of a lack of clarity as to who was being sued and for what, Simmons & Simmons took the sensible and proper step of contacting the plaintiff to seek his confirmation as to who he was suing.  On 9 February 2006, the plaintiff confirmed in writing that the SFC was not the intended defendant in his action.  The intended defendant was as named in the writ.

5.That being the case, Simmons & Simmons had therefore filed a notice to act for a client that was not being sued and the only proper course for them to take was to apply to the court for leave to withdraw its notice to act and to apply to the court to allow the SFC to withdraw its Acknowledgement of Service simply because both the SFC and Simmons & Simmons had no involvement whatever in the writ HCA40/2006.

6.That application for leave came before Mr Registrar Chan on 8 March and after a contested hearing he granted the application sought by Simmons & Simmons for them to withdraw their notice to act and for the SFC to withdraw their Acknowledgement of Service.

7.The plaintiff did not appeal the order of Mr Registrar Chan but instead he, two days later, on 10 March, issued this writ HCA519/2006 suing, this time, Simmons & Simmons.

8.In the handwritten writ against Simmons & Simmons, the plaintiff complains that Simmons & Simmons by their actions in applying to Registrar Chan to withdraw their notice to act on behalf of the SFC had obstructed legal procedures.  He claims $10 million in damages and $1 million in costs.  Simmons & Simmons applied to strike out that writ.  Both sides filed affirmations.  Simmons & Simmons submitted that Mr Ngan’s writ HCA519/2006 was an abuse of process and that it was vexatious and frivolous and disclosed no cause of action.  This time Master Hui dealt with the application and again, after a contested hearing, he acceded to Simmons & Simmons’ application to strike out.  That was on 28 June.

9.In this appeal before me, I have to decide first of all whether I should exercise my discretion to the plaintiff to allow him to pursue his Notice of Appeal even though it is out of time.  I refuse to exercise my discretion in his favour for the following reasons.

10.Firstly, it is 12 days out of time.  It is not a question of being inadvertently one or two days late.  The plaintiff has informed the court today that the reason for it being out of time is because he did not receive the written order from Simmons & Simmons until the 14-day period had expired.  The rules however are clear that the 14-day period starts to run from the date of the order, namely 28 June, and I am satisfied that Mr Ngan, although a litigant in person, is familiar with these rules.  Earlier this year in what can only be described as an identical case, he had an action struck out, again for being out of time, and the judge in that case stated clearly what the rules were and the reasons that he was not being granted an extension and that no discretion should be granted to him.

11.It is also a fact that Mr Ngan has not followed the rules in applying for an extension of time by failing to file any evidence to explain the reasons for him being late.  The first time the court became aware of the reasons was when he addressed the court today.  What he should have done, and again I believe he is familiar with the rules, is that he should have explained in writing by way of affidavit evidence his grounds for asking for an extension and asking the court to exercise its discretion.

12.A third and perhaps the most important reason why I do not think it is appropriate in this case to exercise any discretion in the plaintiff’s favour is simply this : even if Mr Ngan had made his application within time and even if all the rules had been complied with, there is no doubt in my mind that the court would come to the conclusion that his application to appeal was doomed to failure.  It is wholly without merit.  I have considered all the issues and all the arguments on both sides as if this was a full hearing of the appeal.

13.The writ alleges against Simmons & Simmons that they have obstructed the legal procedures and obstructed the course of justice.  In truth however, and this I think is where Mr Ngan has plainly misunderstood the position, it is quite plain that Simmons & Simmons did no more than to apply to withdraw from writ HCA40/2006 entirely properly.  They would have been in error if they had not done so.  They took that action when and only when the plaintiff confirmed that Simmons & Simmons’client, namely the SFC, was not the defendant that the plaintiff was suing.  It was equally obvious at that stage that it was necessary for Simmons & Simmons to get a similar order withdrawing the Acknowledgement of Service that the SFC had very properly and expeditiously filed upon being served with documents and a writ by the plaintiff in early February.  There is no breach of duty that Simmons & Simmons had breached to the plaintiff.  The plaintiff is not their client either.

14.The writ itself plainly discloses no cause of action and is vexatious and frivolous and Master Hui was entirely right, in my judgment, to take the decision that he did, at the time he did, after hearing the same arguments that I have heard this morning.

15.The application for an extension of time to appeal is refused and accordingly the appeal itself is also dismissed.

16.The only other question is the question of costs.

[Discussions on Costs]

17.I make an order for costs against the plaintiff, to be taxed if not agreed.

The Plaintiff, in person

Mr Hughes of Messrs Simmons & Simmons, for the Defendant