Tsui Koon Wah v. Lam King Yuen and Others

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Hearing:  26 July 2006

Date of Handing Down Decision:  10 August 2006

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D E C I S I O N

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Introduction

1.This is the plaintiff’s second application for me to recuse from dealing with this action altogether.

2.Although the summons does not state the ground of the application, the plaintiff’s written submission dated 22 July 2006 has set it out.  In short, the plaintiff contends that, because I am one of the interested parties in HCAL 81/2006, “presumed/apparent bias exits” (using the phrase used in the skeleton submission).

3.In order to better understand the origin of this application, and to determine if it has substance, the background leading to this application has to be briefly mentioned.

Brief History of this Action

4.The plaintiff commenced this action in March 2003.  The following passages in the judgment of Stone J dated 20 October 2004 give a good summary of what this action is concerned with:-

“4. This is a defamation case, which has its origin in the employment, by the Government, of Mr Tsui, the plaintiff, as a Contract Social Security Assistant at the Mongkok Field Unit.

5. Mr Tsui commenced work at this Unit on 21 May 2002, and his contract was to run until 31 March 2003.  However, he was dismissed from this employment on 3 January 2003 absent payment in lieu of notice or accumulated annual leave.

6. To put the matter as neutrally as possible, it is fair to say that Mr Tsui did not enjoy a harmonious working relationship with employees of this Field Unit, and a number of ‘incidents’ arose, resulting in accusation and counter-accusation.

7. In the event, Mr Tsui was summarily dismissed from his employment, and it is this dismissal which has led to his mounting two actions in the High Court : first, the existing action against four members of staff, wherein he seeks damages for defamatory statements he alleges were made against him, and second, a suit against the Government for wrongful dismissal, which I am told is HCA 2938 of 2003.  Mr Tsui has told the court that he recognizes the risk of adverse costs orders which may be made against him in such litigation, but that he anticipates possible bankruptcy as ‘a reality, not a strategy’”.

5.From November 2003 (if not earlier) to April 2006, various interlocutory applications have been taken out (mostly by the plaintiff).  More than a fair share of these were dismissed by the court.  An appeal to the court of appeal by the plaintiff also turned out to be unsuccessful.  Needless to say, these matters have taken up time.

6.The way in which the plaintiff’s case has been pleaded does not appear to promote the speedy resolution of the substantive merits of this action either.  Up to now, the statement of claim is in its re-re-re-amended version.  By 24 October 2005:-

(1) the re-re-re-amended statement of claim ran up to about 19 pages;

(2) the re-amended defence consisted of about 28 pages;

(3) the re-re-amended reply has about 43 pages.

The court of appeal in a judgment handed down on 18 July 2005 has described the plaintiff’s pleading (the then re-amended statement of claim (about 28 pages long) and re-amended reply (about 41 pages long)) as “long and … prolix” (para. 2 thereof).

The Earlier Application to Recuse

7.The earlier application to recuse was dismissed in a decision handed down on 8 August 2006.  One of the grounds put forth in support of that application was that I took part in making a false instrument, namely, forging the sealed order dated 7 April 2006.

8.That allegation was dealt with in the said decision dated 8 August 2006 as follows:-

“29. This part of the plaintiff’s written submission is difficult to understand.  It appears to be as follows.

30. Subsequent to the handing down of the decision on 7 April 2006, the defendants’ solicitors wrote to the court on 10 April 2006.  This resulted in the appearance of para. 7A(g), 53(b) and 61(b), re-amended reply in the sealed order (as part of the averments which were struck out), even though they have never been referred to in the decision dated 7 April 2006.

31. Thus, so the plaintiff contends, the parts of the sealed order dated 7 April 2006 which state:-

“AND UPON the application of the Defendants by way of Summons issued on 18^th October 2005

AND UPON hearing the Plaintiff appearing in person and the Solicitors for the Defendants”

are “false” within the meaning of s. 69(a)(vii), Crimes Ordinance (Cap. 200) which provides:-

“an instrument is false if it purports to have been … made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered”.

This is because the defendants’ application was in fact made by way of the letter dated 10 April 2006.  Further, there was no hearing of that application after 24 October 2005.

32. Before dealing with the complaint, it should be pointed out that, even in the sealed order, there is no reference to para. 53(b) or 61(b), re-amended reply.  The plaintiff’s complaint must have been about the inclusion of para. 56(b) and 60(b) thereof: see the plaintiff’s letter dated 23 May 2006.  This decision will proceed on such basis.

33. What in fact occurred between 7 April 2006 and 27 May 2006 (filing of the sealed order) in relation to the said sealed order can be summarised as follows:-

(a) on 10 April 2006, the defendants’ solicitors wrote to inform the court there were omissions in the decision;

(b) on 18 April 2006, the plaintiff wrote to inform the court there were errors in the decision;

(c) on 19 April 2006, the defendants’ solicitors responded to the plaintiff’s letter dated 18 April 2006;

(d) on 19 April 2006, the plaintiff responded to the letter dated 10 April 2006 of the defendants’ solicitors.  One of the points made was the court was already functus officio;

(e) on 24 April 2006, the plaintiff responded to the letter dated 19 April 2006 of the defendants’ solicitors;

(f) after considering the above correspondence from the parties, a Corrigendum was pronounced on 9 May 2006;

(g) further, the court sent a letter to the parties on 17 May 2006 enclosing a draft order (which was based on the respective draft orders prepared by the parties) and inviting their comments (to be given within 7 days);

(h) the defendants’ solicitors made their comments on 19 May 2006;

(i) the plaintiff made his comments on 23 May 2006.  The argument that the court was already functus officio was repeated;

(j) after considering the parties’ comments, the order was approved on 25 May 2006.

(All the letters referred to in sub-para. (a) to (e) and (h) to (i) above have been copied to the other party).

34. It is trite law that the court has jurisdiction to reconsider the matter before entry of decision or the drawing up of an order: Hong Kong Civil Procedure 2006, para. 20/11/8 and 42/1/19.  The plaintiff’s argument that the court was functus official is simply wrong.

35. In the light of the factual background set out above, unless an unreasonably narrow meaning is given to the parts of the sealed order referred to in para. 31 above, the complaint that the sealed order is  “false” is unmeritorious.  I do not consider it proper to give such a narrow meaning to those parts of the sealed order.

36. In these circumstances, this part of the application also has no substance.”

The Present Application

9.In view of the matters set out above, the plaintiff appeared to have taken the view that a “false” instrument was made by the defendants’ handling solicitor and me, namely, the sealed order dated 7 April 2006.

10.A number of documents have been attached to the plaintiff’s skeleton submission.  Judging from their contents, the plaintiff has apparently taken a number of steps as a result of how he perceives the matter.

11.First, he attempted to lay an information before a magistrate for issuing a summons, apparently relying on s. 8, Magistrates Ordinance (Cap. 227).  The magistrate refused to do so, invoking his powers under s. 8(1B)(b), Cap. 227 which provides:-

“A summons may be issued without consideration of the … information by the magistrate … , but, if a magistrate does consider the … information, he may for good cause refuse to issue a summons”.

12.Two, aggrieved by the magistrate’s said refusal, the plaintiff then commenced HCAL 81/2006, seeking leave to apply for judicial review against it.  That matter is now pending before another judge of the High Court.

13.The test for deciding whether there is apparent bias has been laid down in the Court of Final Appeal’s decision in Deacons v. White & Case Limited Liability Partnership and Others [2004] 1 HKLRD 291 at para. 20 and 21.  In short, the test is:-

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased”.

14.The plaintiff’s claim herein is against the defendants for alleged acts of defamation.  As at today, the trial will be before a judge sitting with a jury.  The attempted information for a summons and HCAL 81/2006, on the other hand, were concerned with the plaintiff’s allegation that I was a party to the making of a false instrument.

15.As the defendants correctly point out, it is the plaintiff’s own decision to commence a legal proceeding against me.  That by itself cannot constitute a valid ground for saying there has been apparent bias on my part.  The law should not permit a person to create for himself a situation of apparent conflict between himself and the tribunal; so that he can say there is apparent bias and seek the tribunal concerned to recuse; lest it will be open to abuse by those who are “forum-shopping”.

16.In these circumstances, I find that there is no substance in the plaintiff’s argument.

17.The defendants also contend that this application falls within the wide doctrine of res judicata, being a pre-existing argument which has not been raised in the earlier application.  I have been able to determine this application without the need to consider that aspect.  No finding will be thereon.

Conclusion

18.By reason of the above matters, the application to recuse is dismissed.

Costs Order Nisi

19.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the plaintiff to be taxed if not agreed.

Plaintiff acts in person and present

Mr Michael Cheung, of Messrs Liu, Chan & Lam, for the Defendants