Wong Yu Cho Rolly v. Newton Chan
Read the full judgment text of DCCJ 4092/2006 on BabelCite. This District Court judgment.
1. The two applications before me are appeals against the Orders of Master J Ko made on 13 th October 2006 in DCCJ4092/2006 and DCCJ4093/2006 (“ 4092 Action ” and “ 4093 Action ”) respectively.
Cited by 3 cases · Cites 3 cases
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DCCJ4092/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4092 OF 2006 ------------------------ BETWEEN
------------------------ DCCJ4093/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4093 OF 2006 ------------------------ BETWEEN
------------------------ Coram: H H Judge Marlene Ng in Chambers (Open to the Public) Date of Hearing: 15th January 2007 Date of Handing Down Decision: 18th January 2007 ------------------------ DECISION ------------------------ I. Introduction 1.The two applications before me are appeals against the Orders of Master J Ko made on 13th October 2006 in DCCJ4092/2006 and DCCJ4093/2006 (“4092 Action” and “4093 Action”) respectively. 2.The Defendants in the 4092 and 4093 Actions, ie Newton Chan (“Mr Chan”) and Chiu Kwok Tsan (“Mr Chiu”), are represented by the Department of Justice (“DOJ”). On 19th September 2006, the DOJ on behalf of Mr Chan and Mr Chiu issued two separate summonses in the 4092 and 4093 Actions respectively to strike out the Plaintiff’s claim and dismiss the action (“Striking Out Summonses”). The DOJ also issued two striking out summonses against the Plaintiff on behalf of the defendants in DCCJ3884/2006 and DCCJ3915/2006 (“Other Summonses”). To digress a little, I note from the Plaintiff’s written submissions submitted to the court at the hearing before me on 15th January 2007 (“Written Submissions”) that he claimed to have discontinued DCCJ3884/2006 and DCCJ2915/2006. 3.Coming back to the 4092 and 4093 Actions, on 9th October 2006 the Plaintiff issued a summons in each action to stay proceedings on the ground that the Striking Out Summonses and the Other Summonses should not be returnable together before Master J Ko on 13th October 2006 (“Stay Summonses”). The Plaintiff suspected there was obstruction of justice because the defendants in the aforesaid four actions should have discussed, planned and fixed the hearing before Master J Ko on 13th October 2006 (“Master J Ko’s 13/10/06 Hearing”) as evidenced by the fact that the contents of the Striking Out Summonses and the contents of the Other Summonses were respectively the same. The Plaintiff argued that each case was individual and different with separate cause of action and/or claim for damages, so the Striking Out Summonses and Other Summonses should not be heard together before Master J Ko. The Plaintiff took the view that each summons would require an estimated hearing time of one day. 4.At the hearing of the Stay Summonses on 11th October 2006, Master S T Poon dismissed such summonses with costs. 5.At Master J Ko’s 13/10/06 Hearing, the learned Master made the same orders in respect of the Striking Out Summons in each of the 4092 and 4093 Actions (“Master J Ko’s Orders”) as follows :
6.On 1st December 2006, the Plaintiff issued Notices of Appeal in the 4092 and 4093 Actions respectively against Master J Ko’s Orders (“Appeal Notices”). II. Appeal out of time 7.Order 58 rule 1(3) of the Rules of the District Court provides inter alia that unless the court otherwise orders, a notice of appeal against a master’s decision must be issued within 14 days after the judgment, order or determination appealed against was given or made. Plainly, the Appeal Notices were filed out of time. However, Mr Louie Wong (“Mr Wong”), DOJ’s government counsel acting on behalf of Mr Chan and Mr Chiu, took no issue on such non-compliance of the time limit. For the avoidance of doubt, I have at the hearing granted leave to the Plaintiff to appeal against Master J Ko’s Orders out of time. III. Hearing bundle 8.Although the Plaintiff was the appellant, the hearing bundle was prepared by the DOJ. The Plaintiff claimed he did not receive the hearing bundle or Mr Wong’s written submissions of 1½ pages. I stood down the hearing to enable the Plaintiff to read Mr Wong’s written submissions. There is no merit in the Plaintiff’s claim that he did not have sufficient time to respond to the hearing bundle. After all, the hearing bundle consisted of filed/served documents and transcripts of proceedings previously attended by the Plaintiff. It can hardly be suggested that the Plaintiff was taken by surprise. IV. Plaintiff’s claims 9.It is necessary to consider the background/nature of the Plaintiff’s claims in his Statements of Claim in the 4092 and 4093 Actions. For the purpose of the Plaintiff’s present appeals before me, I am prepared to consider the supplemental factual assertions and grounds as set out in the Written Submissions and/or raised by the Plaintiff in his oral submissions before me. However, this should not be taken as leave for the Plaintiff to rely on any factual assertions unsupported by affidavit evidence for the purpose of the substantive hearing of the Striking Out Summonses. (a) Common background 10.The Plaintiff relied on the same background matters set out in paragraphs 11 to 22 below in respect of his claims in both 4092 and 4093 Actions. 11.The Plaintiff is a businessmen and sole proprietor of Marco Polo (“MP”) and China Overseas Technical Development (“COTD”). He claimed that since their establishment the former traded at a loss and the latter had no business activity. He did not file tax returns for MP and COTD for the years of assessment 1996/1997 and 1997/1998 (“Assessment Years”). The Inland Revenue Department (“IRD”) issued notices of assessments for MP and COTD for the Assessment Years (“Assessment Notices”). 12.The Plaintiff maintained there were no profits chargeable for tax purpose. He claimed he was in constant dialogue with the IRD on tax matters and gave information to the IRD under cover of various letters. He argued that since the amounts claimed by the IRD were merely assessments and disputed by him, and further since he has substantial assets and is a famous person, he was not in default of tax or a person charged with tax who had quitted Hong Kong or likely to quit Hong Kong without paying tax charged against him under section 76(1) of the Inland Revenue Ordinance Cap.112 (“IRO”). 13.The Plaintiff contended that in such circumstances the Commissioner of Inland Revenue (“Commissioner”) was not empowered to “freeze” his accounts, but notwithstanding the same the IRD “froze” his personal and business bank accounts on 16th August 2004 without prior notice/court order. The Plaintiff claimed such conduct was illegal, so he commenced legal action against the IRD (DCCJ4492/2004, “4492 Action”) on 26th August 2004. The Plaintiff said the IRD informed the banks to “release” his accounts on the same day. 14.The Plaintiff averred that several weeks later he and his family suffered an attempted kidnapping. A report was made to the police and they were placed under police protection at a safe place. On 27th October 2004 he attended a hearing before Master J Ko in chambers (“Master J Ko’s 27/10/04 Hearing”) under police protective escort. Master J Ko’s 27/10/04 Hearing was the return hearing for the Plaintiff’s summons for extension of time to file his Reply and Defence to Counterclaim in the 4492 Action. The Plaintiff claimed he informed Master J Ko of his predicament and Master J Ko asked him to have a discussion with Mr Ho Chi Sum (“Mr Ho”), senior government counsel representing the IRD, outside the courtroom since it would be fair to let Mr Ho know what was going on. 15.The Plaintiff claimed that outside the courtroom he informed Mr Ho of the attempted kidnapping by showing Mr Ho a copy of his statement to the police. He said he further explained to Mr Ho that it would be inconvenient for him to appear in public. The Plaintiff averred that he suggested to Mr Ho “to stay the proceedings and set aside”. He said he was confused and concerned for his and his family’s safety, so after Master J Ko’s 27/10/04 Hearing (ie outside the courtroom), he and Mr Ho in the presence of the Plaintiff’s assistant Ms Cheung Wing Yan (“Ms Cheung”) orally agreed to temporarily set aside the proceedings until his further notice to the IRD since he and his family might have to leave Hong Kong in view of the attempted kidnapping (“Agreement”). The Plaintiff claimed he gave no further thought to the filing of the Reply and Defence to Counterclaim in the 4492 Action and went to the DOJ under police protective escort to pay the costs of the hearing by cheque before returning to the safe place. 16.The Plaintiff claimed that on the following day (ie 28th October 2004) he sent a letter by post to the DOJ marked for the attention of Mr Ho to confirm the Agreement. Thereafter the Plaintiff and his family left Hong Kong. 17.The Plaintiff pleaded that on 5th January 2005 (whilst he was still overseas), Ms Cheung informed him that judgment had been entered against him in the 4492 Action on 30th December 2004 (“4492 Judgment”). He said he was shocked and disappointed by such action taken by Mr Ho and the IRD. The Plaintiff claimed that Mr Ho not only failed to inform the court and the IRD of the Agreement, he deliberately disregarded the Agreement and tricked the Plaintiff in a planned manner by applying for the 4492 Judgment without giving the Plaintiff (who was then overseas) any notice. In his Written Submissions, the Plaintiff claimed Mr Ho was in breach of his duty as senior government counsel, civil servant, officer of the court and representative of the Hong Kong government and the IRD. 18.The Plaintiff claimed he returned to Hong Kong shortly and wrote to the DOJ on 14th and 17th January 2005 to complain about breach of the Agreement and to request that the 4492 Judgment be set aside. The Plaintiff claimed Mr Ho failed to comply with his request, so he issued a summons dated 17th January 2005 to set aside the 4492 Judgment (“Set Aside Application”). The Plaintiff further claimed he was unaware that Mr Ho did not read “the letter” until he read Mr Ho’s affirmation dated 15th February 2005 to oppose his Set Aside Application. 19.By the chronology of events annexed to the Written Submissions (“Chronology”), the Plaintiff provided more information on the developments of the 4492 Action. The Plaintiff claimed that the hearing of the Set Aside Application before H H Judge Chow on 29th March 2005 was an unfair hearing (which caused him huge loss and undermined Hong Kong’s rule of law) as the learned judge ignored his attempt to submit the Reply and Defence to Counterclaim and “twisted” the nature of the claim to become a tax matter. On 20th June and 9th September 2005 respectively, H H Judge Chow dismissed the Set Aside Application and refused leave to appeal against his decision. On 7th March 2006, the Court of Appeal in HCMP2032/2005 dismissed the Plaintiff’s renewed application for leave to appeal. On 4th May 2006, the Plaintiff issued a summons to stay execution of the 4492 Judgment and of H H Judge Chow’s decision of 20th June 2005, but H H Judge Chow dismissed such application at the hearing on 22nd June 2006 (“H H Judge Chow’s 22/6/06 Hearing”). On 4th September 2006, the Appeal Committee of the Court of Final Appeal in FAMV23/2006 refused leave to appeal against the Court of Appeal’s decision in HCMP2032/2005. On 13th October 2006, Master J Ko dismissed the Plaintiff’s summons of 11th October 2006 to stay the 4492 Action. On 10th November 2006, the Plaintiff again issued a summons to stay proceedings in the 4492 Action, but such summons was dismissed on 20th November 2006. On 20th November 2006, the Plaintiff lodged Notice of Appeal against Master J Ko’s decision, but such appeal was dismissed by Judge Wong on 21st December 2006. The Plaintiff’s application for leave to appeal against H H Judge Wong’s decision will be heard on 21st January 2007. In the meantime, on 7th December 2006, the Plaintiff issued a summons for leave to stay execution of the 4492 Action, but Master K W Wong dismissed such summons on 12th January 2007. 20.The Chronology further described another aspect of the 4492 Action, ie the taxation proceedings. On 20th September 2006, the DOJ filed a Bill of Costs together with an Appointment to Tax in the 4492 Action. On 20th October 2006 at the initial call-over hearing, Master S T Poon granted leave to the Plaintiff to file and serve his list of objections within 14 days. On 6th November 2006, Master R Lai granted the Plaintiff an extension of time until 13th November 2006 to file his list of objections. In the meantime, the Plaintiff failed to attend the 2nd call-over hearing on 17th November 2006. 21.The Plaintiff in his Statements of Claim in the 4092 and 4093 Actions averred that his claim against the IRD and Mr Ho for their inconsiderate, inhumane, negligent and wrongful actions was the subject of legal action in HCA2132/2005. In his oral submissions before me, the Plaintiff submitted that HCA2132/2005 was essentially a claim against Mr Ho for breach of the Agreement. 22.The Plaintiff also mentioned in the Chronology that on 10th January 2007 the “defendant” (without clearly identifying whom) in DCCJ5483/2006 took out a summons returnable on 12th February 2007 for leave to strike out the Plaintiff’s claim. ( b) Claim against Mr Chan– 4092 Action 23.The Plaintiff claimed that the senior government counsel representing the IRD in the 4492 Action was changed from Mr Ho to Mr Chan, who also represented Mr Ho in HCA2132/2005. There were several aspects to the Plaintiff’s claim against Mr Chan, which the Plaintiff in his oral submissions at the hearing explained was essentially a claim against Mr Chan for misleading the court. 24.First, the Plaintiff pointed out that Mr Ho and the IRD applied to strike out the Plaintiff’s claim in HCA2132/2005 which application was heard before Mr Registrar C Chan in chambers on 12th May 2006 (“Registrar’s 12/5/06 Hearing”). The Plaintiff claimed that prior to the Registrar’s 12/5/06 Hearing, Mr Chan “kept on misleading the court and tried to affect the impression of Mr Registrar C. Chan who was presiding over the case”. In his oral submissions before me, the Plaintiff submitted that the purpose of such conduct was to cover up the serious errors of the IRD and Mr Ho, which errors were reflected in the Plaintiff’s legal claims against (a) the IRD and its officers for trespass, invasion of privacy and wrongful entry into his residence and (b) the IRD for its abuse of power and illegal conduct in assessing and collecting information in respect of and “freezing” his bank accounts without police warrant or court sanction when he had not breached any law. 25.The Plaintiff explained that on 6th April 2006 his secretary picked up the wrong affirmations dated 28th March 2006 in HCMP2032/2005 (“HCMP2032/2005 Affirmations”) instead of his second affirmation dated 22nd March 2006 in HCA2132/2005 for service on Mr Chan. Mr Chan replied by letter dated 10th April 2006 to return the HCMP2032/2005 Affirmations to the Plaintiff and to confirm he had not kept copies of such documents. The Plaintiff claimed that on 21st April 2006 Mr Chan sent a letter to Mr Registrar C Chan that mixed up HCA2132/2005 with the 4492 Action and HCMP2032/2005, and copied information from the Plaintiff’s bundle in HCMP2032/2005 through other methods eg from the internet or from the court, to deliberately mislead the learned Registrar when in fact they were different matters. 26.Secondly, the Plaintiff claimed that at the Registrar’s 12/5/06 Hearing, Mr Chan tried to mislead the court by saying that the Agreement was “similar to a date to have dinner but did not show up. Mr Registrar C Chan warned him immediately that he should not say this”. 27.Thirdly, the Plaintiff claimed that Mr Chan deliberately misled Mr Chiu (the assessor of the IRD who handled his objections for the Assessment Years in relation to MP and COTD) into making false statements in Mr Chiu’s affirmation dated 16th May 2005 and filed in the 4492 Action on behalf of the IRD to oppose the Plaintiff’s application to stay execution of the 4492 Judgment (“Mr Chiu’s Affirmation”). 28.The Plaintiff said that although the IRD was seriously negligent in sending tax return forms many years after MP and COTD “have registered” and in changing handling personnel causing the Plaintiff to waste time explaining his files time and again, nevertheless he and his tax accountant/representative Mr Kwok Chi Kwok of Messrs C K Kwok & Co (“Mr Kwok”) all along communicated with the IRD/Mr Chiu about his tax matters. 29.So the Plaintiff claimed he was surprised that Mr Chiu’s Affirmation stated that on 22nd July 2005 Mr Chiu (a) informed the Plaintiff inter alia that his late objections were accepted as valid objections and by virtue of section 71(2) of the IRO ordered that the tax on COTD be held over unconditionally whilst the tax on MP should be paid pending the result of the objections, and (b) requested the Plaintiff to provide information relating to bank deposits, costs of sales and expenses relating to MP. The Plaintiff queried why the IRD would repeatedly request documents from the Plaintiff if section 71(2) of the IRO were applicable. 30.The Plaintiff next claimed that Mr Chiu’s Affirmation went on to say the IRD had not received the outstanding information despite letters from the Plaintiff and from Mr Kwok requesting more time to reply. The Plaintiff claimed that in fact he and Mr Kwok had already replied clearly to the IRD by letter and telephone. Indeed, in his oral submissions before me, the Plaintiff claimed Mr Chiu’s Affirmation asserted that the IRD had not liaised with him for a long time, which the Plaintiff said was untrue as seen from the bundle of correspondence annexed to his Appeal Notice in the 4093 Action and to the Written Submissions (see below). In the circumstances, the Plaintiff suspected that Mr Chan misled Mr Chiu to make false statements in Mr Chiu’s Affirmation to the Plaintiff’s detriment. The Plaintiff explained in his oral submissions that Mr Chan’s conduct in misleading Mr Chiu was for the purpose of abusing court procedure, misleading the court and covering up the erroneous application of section 76(1) of the IRO to the Plaintiff. 31.Fourthly, the Plaintiff said that at H H Judge Chow’s 22/6/06 Hearing in respect of his application to stay execution of the 4492 Judgment, Mr Chan submitted that whether the IRD received any information was not important. The Plaintiff claimed it was an “improper trick” by a senior government counsel against him, ie a layman. 32.Fifthly, the Plaintiff claimed he was shocked and angry by (a) Mr Chan’s letter of 24th July 2006 (“Chan’s 24/7/06 Letter”) denying receipt of the affirmation of Ms Cheung dated 7th June 2006 (“Ms Cheung’s Affirmation”) (which the Plaintiff claimed was served by post on the same day) and (b) Mr Chan’s objection to the Plaintiff’s intended reliance on such affirmation in HCA2132/2005. The Plaintiff further claimed that when he served Ms Cheung’s Affirmation again on 4th August 2006, Mr Chan still avoided discussing the same. 33.Sixthly, the Plaintiff claimed that during a telephone conversation with Mr Chan on 16th August 2006, Mr Chan avoided giving his full name to the Plaintiff and created difficulty for him. 34.In the circumstances, the Plaintiff claimed that Mr Chan knowingly violated the law and professional ethics of a civil servant and counsel and that he deliberately tried to mislead the court. He therefore claimed against Mr Chan for compensation “for the loss of his convenience, honour and rights, damages to [his] goodwill and reputation, and the damages and special damages”. ( c) Claim against Mr Chiu– 4093 Action 35.First, the Plaintiff suspected that Mr Chiu made false statements in Mr Chiu’s Affirmation and misled the court by giving the impression that the Plaintiff was avoiding responsibilities. The Plaintiff relied on the same factual matters as set out in paragraphs 28 to 30 above. 36.Secondly, the Plaintiff claimed that since 13th December 2005 he had been asking Mr Chiu many times for copies of the written notices issued to the relevant banks (“Recovery Notices”) for gaining access to and collecting his personal information as well as “freezing” his bank accounts, but Mr Chiu never properly replied or give copies of the Recovery Notices to him. 37.Thirdly, the Plaintiff claimed that although Mr Chiu knew section 76(1) of the IRO was not applicable to the Plaintiff, he avoided discussing it, falsely incriminated the Plaintiff to “cover his mistakes and shirk his responsibilities” and falsely applied section 76(1) of the IRO. 38.In the circumstances, the Plaintiff claimed against Mr Chiu for compensation “for the loss of his convenience, honour and rights, damages to [his] goodwill and reputation, and the damages and special damages”. V. Mr Chan’s and Mr Chiu’s affirmation evidence for the Striking Out Summonses 39.The affirmations of Mr Chan and Mr Chiu were filed in support of the Striking Out Summons in the 4092 Action. Mr Chiu filed an affirmation in support of the Striking Out Summons in the 4093 Action. 40.Mr Chan stated the following in his affirmation in the 4092 Action :
41.In his affirmation filed in respect of the 4093 Action, Mr Chiu said that on 20th September 2004 he was assigned to take over investigation into the Plaintiff’s tax affairs. On 27th February 2003 and 29th March 2004, the IRD issued the Assessment Notices pursuant to section 59(3) of the IRO. The outstanding tax and surcharge were in the aggregate sum of HK$831,600.00, which the Plaintiff did not pay. Mr Chiu said that since tax should be paid even if there was any notice of objection or appeal (section 71(2) of the IRO), the IRD on 16th August 2004 issued the Recovery Notices to two banks with whom the Plaintiff maintained accounts pursuant to section 76(1) of the IRO requiring them to pay to the Commissioner a sum not exceeding HK$831,600.00 from any money they owed the Plaintiff. By a letter dated 24th August 2004, the Plaintiff informed the Commissioner the Recovery Notices caused hardship to him and his family and requested the Commissioner to withdraw them. On 26th August 2004, the Commissioner, having considered the hardship of the Plaintiff, requested the banks not to take action on the Recovery Notices on the ground that the Plaintiff’s claim was under consideration. 42.Mr Chiu pointed out in his affirmation that the Plaintiff had made identical allegations of illegal “freezing” of his bank accounts in his Statements of Claim in the 4492 Action and HCA2132/2005. In respect of the 4492 Action, H H Judge Chow dismissed the Plaintiff’s Set Aside Application. The Court of Appeal and the Appeal Committee of the Court of Final Appeal also refused the Plaintiff’s application for leave to appeal against such decision. In respect of HCA2132/2005, Mr Registrar C Chan struck out the Plaintiff’s claim and dismissed the action on 30th June 2006. Such decision is pending appeal. 43.Mr Chiu in his respective affirmations in the 4092 and 4093 Actions made similar explanations about Mr Chiu’s Affirmation as follows. By a letter dated 22nd July 2005, Mr Chiu requested the Plaintiff to provide information about bank deposits, cost of sales and expenses relating to MP pursuant to section 64(2) of the IRO for consideration of the Plaintiff’s objections against the Assessment Notices. Mr Kwok made a partial reply by two letters both dated 21st August 2005, but stated in his subsequent letter dated 30th April 2006 that the Plaintiff could not recall his memory to provide the outstanding information. The Plaintiff in his letter dated 25th May 2006 also said he had to search and check his bank statements and accounting details, and therefore needed more time in order to submit the related documents to the IRD. That was why Mr Chiu stated in Mr Chiu’s affirmation that the Plaintiff or Mr Kwok had failed to provide all the information requested in Mr Chiu’s letter of 22nd July 2005. By a letter dated 20th July 2006 and the schedule attached thereto, Mr Chiu listed out to the Plaintiff particulars of outstanding information requested in his letter of 22nd July 2005. Mr Chiu added that at H H Judge Chow’s 22/6/06 Hearing the Plaintiff had already raised identical serious allegations of false affirmation against Mr Chiu. VI. Plaintiff’s grounds for appealagainst Master J Ko’s Orders 44.The Plaintiff submitted that the 4092 and 4093 Actions constituted different causes of action against different individuals. In the 4092 Action, the Plaintiff claimed against Mr Chan for inter alia “the negligence misbehaviour of [Mr Chan] and his suspected deliberately misleading the court” to cover up the crime (罪行) and negligence of Mr Ho and the IRD and to pervert the course of justice. In the 4093 Action, the Plaintiff claimed against Mr Chiu for inter alia “the negligence of [Mr Chiu], suspected making false statements in [Mr Chiu’s Affirmation] and misleading the court”, which created a false impression that the Plaintiff failed to respond to the IRD and that the IRD’s actions were correct. The Plaintiff considered that if the Striking Out Summonses were heard together he would not have a fair hearing due to “suspect of conflict of interest”. On the other hand, there would be no prejudice to Mr Chan and Mr Chiu if different tribunals dealt with the Striking Out Summonses. The Plaintiff also estimated that the hearing of each Striking Out Summons would require one full day. So the Plaintiff requested to “stay the proceedings”. 45.As stated in the Appeal Notice in the 4093 Action (and reiterated in his oral submissions before me), the Plaintiff warned that if his present appeals are unsuccessful, he will further appeal to the Court of Appeal. He also stated that he “will c.c.” to the Chief Justice and the Chief Executive to prevent the court from being misled again and again. 46.Indeed, the Plaintiff informed the court he had sent a petition letter and two complaint letters to the Chief Executive to seek review and special pardon for the proceedings in FAMV23/2006 and the negligence of various judges. He also annexed a copy of his complaint letter dated 6th May 2006 to the Secretary for Justice against various government counsel and judges to his Appeal Notice in the 4092 Action. 47.The Plaintiff also enclosed the following documents to his Appeal Notice in the 4092 Action :
48.The Plaintiff also annexed to his Appeal Notice in the 4093 Action a bundle of correspondence from 19th April 2005 to 21st June 2006 between himself and Mr Kwok on one part and the IRD on the other part in relation to the tax affairs of MP and COTD. This bundle together with (a) a letter from the Chief Executive’s Office dated 24th November 2006 acknowledging receipt of his complaint letters and (b) a further letter by the Plaintiff to the IRD dated 27th December 2006 were also annexed to his Written Submissions. The Plaintiff claimed that at the hearing on 21st December 2006 in the 4092 Action, H H Judge Wong urged the Plaintiff and the IRD to negotiate a settlement, so he made an offer to the IRD by his letter dated 27th December 2006. The Plaintiff claimed there was as yet no substantive reply from the Chief Executive and the IRD. 49.In the meantime, the Plaintiff had on 9th January 2007 commenced new legal actions in the District Court against Mr Wong (DCCJ145/2007) for seriously misleading the court “to put completely different cases together” which resulted in Master J Ko’s Orders and against Mr Chan (DCCJ146/2007) for “his action of misleading the court”. He claimed that Mr Wong and Mr Chan as solicitor and advocate had a duty pursuant to the Bar Code and the Solicitors’ Guide not to knowingly mislead or deceive the court in all the circumstances, including for the purpose of advancing their clients’ case. 50.In his Written Submissions, the Plaintiff claimed he would apply for judicial review of the IRD’s improper actions and complain to the Office of the Ombudsman to investigate the Commissioner’s and the IRD’s abuse of power and negligence. 51.The Plaintiff argued that since the replies from the Chief Executive and the IRD were pending and there were numerous pending appeals, it would be appropriate to stay the 4092 and 4093 Actions and to have the Striking Summonses heard by different judges. Decision 52.The Plaintiff’s appeals against Master J Ko’s Orders are by way of re-hearing and I am to exercise my discretion afresh upon consideration of the evidence before me. It is appropriate to make several initial observations. 53.First, Master J Ko’s Orders are interlocutory orders in relation to case management of the Striking Out Summonses and are not determinative of the merits of such summonses. It is therefore unnecessary and indeed inappropriate for me to visit issues on the merits in this Decision pending the substantive hearing for argument. In my view, it is sufficient to dispose of this matter from a case management perspective. 54.Secondly, Master J Ko’s Orders do not direct that the 4092 and 4093 Actions be consolidated. Rather they direct that the Striking Out Summonses in both actions be heard together. This means that the judge hearing the Striking Out Summonses will have to consider the merits of each summons, but it is convenient and appropriate that they be heard together. 55.Thirdly, the Plaintiff in his Written Submissions prayed for a stay of proceedings in respect of the 4092 and 4093 Actions. Master J Ko’s Orders did not deal with any stay of proceedings at all and there is no separate summons issued by the Plaintiff for stay of proceedings returnable before me. I decline to entertain such application. 56.Fourthly, the Plaintiff referred to various complaints he made to the Chief Executive, the Chief Justice and the Secretary for Justice, to his intended notification of the present matter to the Chief Executive and the Chief Justice, and to his intended complaint to the Office of the Ombudsman. As has been explained to the Plaintiff by Mr Registrar C Chan at the Registrar’s 12/5/06 Hearing, the court will not concern itself with extra-judicial complaints and investigations. Hence, whether replies to such complaints and whether investigations are pending is irrelevant to the present appeals. 57.Fifthly, the Plaintiff referred to his intention to appeal against my decision should I not find favour with his arguments. In such event, he is of course entitled to seek leave to appeal pursuant to the District Court Ordinance and the Rules of the District Court if he so wishes. But this is irrelevant to the merits of the appeals presently before me. 58.Sixthly, the Plaintiff claimed he had issued new legal actions against Mr Wong and Mr Chan and intended to apply for judicial review against the IRD. I do not see how they are relevant to the present appeals, which are confined to the propriety of Master J Ko’s Orders in the 4092 and 4093 Actions. 59.Seventhly, whether the Plaintiff made an offer to resolve his tax matters with the IRD is again irrelevant to the 4092 and 4093 Actions because irrespective of any such offer or any possible settlement it remains the Plaintiff’s case in the 4092 and 4093 Actions that Mr Chan’s and Mr Chiu’s previous conduct or actions were wrongful. 60.Eigthly, the Plaintiff in his oral submissions expressed a lot of grievance against various decisions made by H H Judge Chow, which he feared would undermine the rule of law in Hong Kong and for which he had commenced separate legal proceedings. However, I am not in a position to deal with these matters since I do not sit on appeal from the learned judge and those separate proceedings are not before me. 61.I agree with Mr Wong and there can be no doubt that the factual background of the 4092 and 4093 Actions was substantially similar as evidenced by the similarity of the factual matters asserted in the Statements of Claim of both actions (see paragraphs 11 to 18 and 21 above) and in the Plaintiff’s reliance on the developments in the 4492 Action in support of both actions (see paragraphs 19, 20 and 22 above). Indeed, the Plaintiff in his oral submissions accepted that the 4092 and 4093 Actions both originated from the 4492 Action. 62.Even in respect of the reliefs sought against Mr Chan and Mr Chiu in the 4092 and 4093 Actions respectively, there is overlap in that the facts and circumstances that gave rise to the Plaintiff’s claims that (a) Mr Chan misled Mr Chiu into making false statements in Mr Chiu’s Affirmation in order to mislead the court and (b) Mr Chiu made false statements in Mr Chiu’s Affirmation in order to mislead the court are the same (see paragraph 35 above). 63.There is also no doubt that the nature of the applications made in the Striking Out Summonses is similar. Further, Mr Wong submitted that the principal grounds for the Striking Out Summonses were similar, namely, (a) a party or his legal representative did not owe duty of care to another party in litigation, and (b) there was abuse of process since the Plaintiff’s claims or part thereof had been dealt with in previous proceedings. 64.The court has an unfettered discretion in determining whether applications in two or more proceedings should be heard together. There is no hard and fast rule, but the court should consider all the circumstances. I disagree that Master J Ko made Master J Ko’s Orders because (as the Plaintiff claimed) he was misled by Mr Wong into believing that all legal proceedings were resolved so there was no harm in having the Striking Out Summonses heard together. 65.In my view, Master J Ko is correct in directing that the substantive argument of both Striking Out Summons be heard together. The aforesaid analysis shows that there are common questions of law/fact that render it desirable for the Striking Out Summonses to be disposed of at the same substantive hearing. It will save time and costs, and avoid unnecessary delay. Given these considerations, the Striking Out Summonses can be heard together whether the parties are the same or different. 66.I do not consider that hearing the Striking Out Summonses together will create any injustice. The Plaintiff made a bare allegation of suspicion of conflict of interest, but I disagree that having the Striking Out Summonses heard together will advance Mr Chan’s and Mr Chiu’s case. Each of them still carry the burden of establishing that the respective Statement of Claim in the 4092 and 4093 Actions is fit to be struck out and the relevant action dismissed. But there will be prejudice to both parties if matters that ought to be dealt with together are not so dealt with since it will only add to time and costs. As regards the Plaintiff’s allegation that he will suffer prejudice in having the Striking Out Summonses heard together because he will be disadvantaged in issuing future legal proceedings against the relevant parties, I find such consideration irrelevant. 67.I have carefully considered the Plaintiff’s submissions and do not find that they militate against an order that the Striking Out Summonses be heard together. I am persuaded that such order will cause neither embarrassment nor prejudice at the substantive hearing of the Striking Out Summonses. I also do not consider that the issues are so numerous or complex as to justify separate hearings. In my view, the appropriate estimation of the hearing time is one day. 68.Such conclusion is reinforced by the contents of the supporting affirmations for the Striking Out Summonses. I note also there is overlap in respect of the contents and exhibits of Mr Chiu’s affirmations filed for the Striking Out Summonses in the 4092 and 4093 Actions (see paragraph 43 above). 69.In the circumstances, I am not prepared to overturn Master J Ko’s Orders insofar as they direct that the Striking Out Summonses be heard together. However, the practical reality is that as a result of the present appeals, the Plaintiff has not filed his affirmations in opposition to the Striking Out Summonses by 22nd December 2006 as ordered by Master J Ko. The substantive hearing will be on 7th February 2006, ie 20 days away. 70.Mr Wong submitted that the defendants in the 4092 and 4093 Actions wished to progress the Striking Out Summonses as soon as possible and further wished to maintain the hearing date for substantive argument on 7th February 2006. However, balancing the interests of all parties and in the interest of justice, I consider it appropriate that the Plaintiff be given reasonable (but not inappropriately lengthy) time to file and serve his affirmations in opposition to the Striking Out Summonses. 71.In the circumstances, I make the following orders in each of the 4092 and 4093 Actions :
72.Although I have set aside Master J Ko’s Orders, the Plaintiff has essentially failed in his appeals before me. I have rejected his application to have the Striking Out Summonses heard separately. The above directions are consequential to his late appeals which essentially failed and to his failure to file affirmations in opposition in compliance with Master J Ko’s Orders. Hence, the above consequential directions are an indulgence granted to the Plaintiff. In the circumstances, I see no reason why the Plaintiff should not bear costs of the appeals. I therefore grant a cost order nisi in each of the 4092 and 4093 Actions that the Plaintiff do pay the defendant therein costs of the appeal before me to be taxed if not agreed.
Representation : The Plaintiff in both actions, in person and present. Mr Louie Wong, government counsel of the Department of Justice, for the Defendants in both actions. |
Cases cited in this judgment
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Further hearings and rulings under DCCJ 4092/2006