Brian Alfred Hall v. Cs Pang and Others

HCSA36/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 36 OF 2006

(ON Appeal from SCTC 32142 OF 2004)

-----------------------------

BETWEEN

-----------------------------

Before : Hon Yam J in Chambers

Date of Hearing : 27 June 2007

Date of Judgment : 27 June 2007

------------------------

JUDGMENT

------------------------

1.The finding of facts in the Small Claims Tribunal has been meticulously set out in the judgment of 17 pages by the presiding officer.  He came to the firm conclusion that the diary did not exist and he also disbelieved the claimant.  Nothing said by Mr Hall orally today, and in writing before this court, amounts to any error of law.  I do not find any error of law at all throughout the presiding officer’s Reasons for Judgment. 

2.Mr Hall mentioned two points which I think I will have to deal with.  One is the discreditable acts of the officer, and the other one is the violation of section 105 of the Criminal Procedure Ordinance.  In fact, the two points are the two sides of the same coin.  It is the same matter.  I will start with section 105.  Section 105 provided that :

“Report of property found upon persons apprehended

If, on the apprehension of any person charged with any indictable offence, any property is taken from him, a report shall be made by the police to the magistrate or the court of the fact of such property having been taken from such person and of the particulars of such property.” 

3.Mr Hall submitted that not all items were particularised in one short sentence. 

4.The other point, of course, is if they were not particularised then it will amount to discreditable acts of the officers and, therefore, he relied on Phipson which says to the effect that if a witness has certain discreditable acts, this will be taken into the balance in considering his credibility as to other points which are of importance to a defendant or, in a civil case, to a party on the other side. 

5.The learned presiding officer has already dealt with such a point, in fact quite clearly, in the judgment.  For example, at paragraph 22, Presiding Officer Choi said :

“As to the items shown on D21, Pang said that the same came from the ‘item bag of clothing’ at 318.”

Paragraph 23 :

“As to why the items on D21 were not listed on D19, Pang pointed out that these two documents were compiled at different dates.”

Paragraph 24 :

“He further explained from his experience, that in dangerous drug cases, the court might want to know the other items brought to Hong Kong by the arrested person so as to check against the alleged purpose of the arrested person of coming to Hong Kong but it would not be necessary to list each and every item otherwise there would be a lot of irrelevant items, for example, underwear and socks.  Thus, a general description of clothing was used.  Pang said that there was no requirement for the recipients of D12-D18 to acknowledge receipt of the same.”

6.In the Reasons for Decision, the learned presiding officer has considered this point and does not consider the same point is important in assessing the credibility of various witnesses.  He, at the end, accepts the defence witnesses and rejected Mr Hall’s evidence.  The judgment is meticulous; it is clear; and it is a matter of law that the appeal court in which I am now sitting cannot, on a certain finding of facts, grant leave to an intended appellant to appeal.  It must be a point of law.  As clearly stated in Form 9, Small Claims Tribunal Ordinance, Cap. 338, the heading clearly stated : “Application for Leave to Appeal on Point of Law.” 

7.I do not find any points of law involved and the appeal, to my mind, is hopeless because if there is no point of law, the court of appeal would not consider the appeal at all.  So application for leave to appeal is dismissed. 

8.Originally, I was minded to grant a Restricted Proceedings Order against you and would like to hear you on that.  But then a Restricted Proceedings Order is in respect of litigants who repeatedly re-litigate the same subject matter. 

9.I have in my hand a list of all the cases you have taken out against various persons. 

[The court went through the list as annexed hereto as Appendix 1.)

10.It is not appropriate to restrict you to commence fresh proceedings by a Restricted Proceedings Order because such an Order is in respect of re-litigation on the same subject matter.  But from the past history, I think you are liable to be adjudged as a vexatious litigant and therefore this file will be sent to the Department of Justice to decide whether an application should be made to the court to adjudge you a vexatious litigant pursuant to section 27 of the High Court Ordinance, Cap. 4. 

11.You should understand that, of course, you have your human rights but it does not mean that human rights will grant you a right to abuse the process of the court by suing anyone you like.  Therefore, the file will be sent to the Department of Justice and they will decide whether they should make an application to the High Court to adjudge you as a vexatious litigant.  In other words, if that is the case, then in each and every case you will have to apply for leave to issue the writ.  Of course, I do not have to hear you on the referral but I think as a matter of fairness, I should inform you of the action I am taking.  Do you understand? 

(The defendant said “yes”.) 

The Claimant (Appellant) in person, present

Appendix I

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

SCHEDULE OF CASES

----------------------

I N D E X

----------------------