Yu Man v. The Liquidators of Ca Pacific Securities Ltd (in Liquidation)

CACV 253/2006 & CACV 254/2006

CACV 253/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 253 OF 2006

(ON APPEAL FROM HCCW 37 OF 1998)

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BETWEEN

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CACV 254/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 254 OF 2006

(ON APPEAL FROM HCMP 71 OF 2006)

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BETWEEN

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Before:  Hon Tang VP, Cheung JA and Chu J in Court

Date of Hearing: 9 February 2007

Date of Judgment: 26 February 2007

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.The appellant, Mr Yu Man, is a victim of the collapse of CA Pacific Securities and CA Pacific Trustee Limited.

2.Shortly before the collapse of CA Pacific Securities Limited, he acquired 130,000 Sino Land shares (“the shares”) through CA Pacific Securities Limited.

3.As a result of the judgment of Yuen J (as she then was) in HCCW 37 of 1998 (unreported) 23 August 2002, Mr Yu was treated in accordance with the “cash client pari passu” order.  Since there was a short fall in Sino Land shares, only 58,954 shares were made available to be allocated to Mr Yu out of the 130,000 shares claimed by him.  Mr Yu was dissatisfied with the judgment.

4.He appealed.  In CACV 347 of 2002, the Court of Appeal decided against him (12 November 2003).  The Court of Final Appeal dismissed his application for leave to appeal on 22 December 2005 on the basis that it disclosed no reasonable grounds for leave to appeal.  In law, Mr Yu could not take the matter further.

5.However, he was not willing to accept the result.  He tried to re-open the matter in other proceedings.

6.On 29 June 2006, Yuen JA sitting as an additional judge of the Court of First Instance made a restricted application order (“RAO”), and a restricted proceedings order (“RPO”) against Mr Yu.  The orders are the subject of CACV 253 & 254 of 2006 respectively.  We heard both appeals together and will deal with them in this judgment.

7.The other proceedings in which Mr Yu sought to litigate the same matter have been set out by Yuen JA in her judgment of 29 June 2006 and which we will repeat:

“(2A) HCA 389/2001 - orders 13/9/2001 & 10/3/2003

8.      Meanwhile, on 22 January 2001 Mi Yu started a High Court action against Pricewaterhouse Coopers in HCA 389/2001. The claim was for delivery of the Shares which he alleged were unlawfully detained.

9.      The action was struck out by the Registrar on 13 September 2001.

10.    Mr Yu sought an extension of time to appeal from the Registrar’s order, but his application was refused by Chu J on 10 March 2003.

(2B) CACV 79/2003

11.    Mr Yu filed an appeal against Chu J’s order on 17 March 2003 in CACV 79/2003 but no hearing has been fixed up to now for reasons which appear in my judgment in HCMP 71/2006 (5 June 2006).

(2C) HCMP 71/2006 - order 5/6/2006

12.    Mr Yu, having forgotten that he had filed CACV 79/2003, applied in January 2006 in HCMP 71/2006 for an extension of time to appeal Chu J’s order. These proceedings later developed into Mr Yu’s application for an extension of time to make an application to fix dates for hearing CACV 79/2003 and his application to amend the name of the defendant in HCA 389/2001.

13.    In my judgment of 5 June 2006, I explained why an order for the extension Mr Yu sought was not necessary. I also refused his application to amend the name of the defendant.

14.    HCMP 71/2006 is the platform for the present application for an RPO (and originally for an RAO, which I will discuss below).

15.    I would also mention as a matter of completeness that Mr Yu has on 12 June 2006 filed a summons in HCMP 71/2006 to appeal my order of 5 June 2006.

(3) DCCJ 22757/2001 - order 4/6/2002

16.    The third set of proceedings that Mr Yu had started in connection with his claim to the Shares was DCCJ 22757/2001 which he started on 27 December 2001 against Mr Blaauw, one of the liquidators of CA Pacific Securities.

17.    On 4 June 2002, Deputy Judge A. Chan struck out the claim. Mr Yu’s application for leave to appeal was refused on 7 August 2002.”

8.Yuen JA concluded that:

“His repeated attempts to litigate and re-litigate matters which have been determined against him is one of the hallmarks of litigants who veraciously abuse the process of the courts (Ng Yat Chi v Max Share Ltd and another [2005] 1 HKLRD 473 CFA, paras. 2, 48-50)” See para. 20 of the judgment.

9.Mr Yu said he was the victim of fraud or defalcation committed by some of the directors of CA Pacific Securities, and he was entitled to proceed outside of the winding-up proceedings.  But the proceedings in HCCW 37 of 1998 which culminated in Yuen J’s judgment of 23 August 2002, were designed to resolve the potential claims of the numerous victims of CA Pacific Securities.  We have no doubt that Mr Yu is a victim and we understand his grievance.  But as we reminded Mr Yu, he was not the only victim.  There were many victims.  What the court was trying to do in HCCW 37 of 1998 was to provide relief to the victims according to the category into which they fell according to recognised legal principles.  We hope that Mr Yu will understand that.  In any event, Mr Yu is not entitled to re-litigate the matter.  The orders made by Yuen JA, the subject of the two appeals before us underlines the fact that Mr Yu must accept the determination in HCCW 37 of 1998.

10.We are in full agreement with the judgment of Yuen JA and we dismiss the appeal with costs.

The Appellant, in person, present.

Mr Dennis Kwok, instructed by Messrs Heller Ehrman, for the Respondent.