Wong Yu Cho Rolly t/a Marco Polo and China Oversea Technical Development v. Newton Chan

DCCJ 146/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 146 OF 2007

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BETWEEN

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Coram : His Hon. Judge Leung in Chambers (open to public)

Date of hearing : 14 September 2007

Date of handing down decision : 19 September 2007

DECISION

INTRODUCTION

1.This is the Defendant’s application to strike out the claim and to dismiss the action pursuant to O.18, r.19 of the Rules of the District Court, Cap.336.

2.The Plaintiff appearing in person requested that this hearing be conduct in Chinese notwithstanding that all the affirmations and written submissions, including his, were prepared in English.  I acceded to the request.  As indicated at the end of the hearing, I now hand down this decision in English.  The Plaintiff may apply for its Chinese translation, if necessary.

BACKGROUND

3.The Plaintiff’s claim relates to what happened in DCCJ 4492/2004 (“Action 4492”).  Action 4492 was an action commenced by the Plaintiff against the Inland Revenue Department (“IRD”).  IRD filed a defence and pleaded a counterclaim for overdue tax owed by the Plaintiff.  In default of defence to such counterclaim, interlocutory judgment was entered on the counterclaim against the Plaintiff in December 2004.

4.The Plaintiff then applied for leave to set aside the judgment but was dismissed by the court.  Application for leave to appeal against that decision was made but was too dismissed by the court.  Further applications to the Court of Appeal (HCMP 2032/2005) as well as the Appeal Committee of the Court of Final Appeal (FAMV 23/2006) for leave to appeal were dismissed too last year.

5.The Plaintiff then applied for stay of proceedings in Action 4492 on the ground that various related actions commenced by him were pending.  Among these actions were DCCJ 4092 and 4093 of 2006.  Apparently the defendants in these 2 actions had taken out striking out applications.

6.On 13 October 2006, the Plaintiff’s application for stay was heard before Master Ko.  On the same day, the Master also heard the applications by the defendants in DCCJ 4092 and 4093 of 2006 for their striking out applications to be heard together.  At the end, the Master dismissed the Plaintiff’s application for stay in Action 4492.  He also ordered that the striking out applications in the other 2 actions to be heard together.

7.The Plaintiff appealed against both orders of the Master.  The appeal against the order refusing stay of Action 4492 was heard before Her Hon. Judge H C Wong.  The appeal in relation to the other 2 actions was heard before Her Hon. Judge Ng.  Both appeals by the Plaintiff were separately dismissed.

8.This January, the Plaintiff commenced action against the government counsel appearing for the defendants in the hearing before the Master on 13 October 2006 – DCCJ 145/2007.  He also commenced action against the Defendant, being the government counsel appearing for the IRD in the hearing before Her Hon. Judge H C Wong on 21 December 2006 – the present action.

9.In both actions, the defendants applied to strike out the Plaintiff’s claims and to dismiss the actions.

10.On 13 September 2007, i.e., the day before this hearing, Her Hon. Judge M. Chan handed down her decision in the striking out application in DCCJ 145/2007.  The Plaintiff’s claim was struck out and that action was dismissed.

11.The Defendant’s striking out application in this action is now before this court.

THE PRESENT ACTION

12.According to the pleading, the Plaintiff claims damages against the Defendant for alleged breach of duty on the basis that:

(1)	the Defendant misled the court by confusing the terms “stay of proceeding” and “stay of execution” in his written submissions for the hearing before Her Hon. Judge H C Wong; and
(2)	the Defendant misled the court by his oral submissions at the hearing before Her Hon. Judge H C Wong that Action 4492 had been finalised which was not true.

13.The Defendant applies to strike out the Plaintiff’s claim on the grounds that it discloses no reasonable cause of action against the Defendant; it is frivolous and vexatious; and it is an abuse of process of the court.

GENERAL PRINCIPLES

14.The law regarding an O.18, r.19 application is trite.  The order sought will be made only in plain and obvious case: see Hong Kong Civil Procedure 2007 at 18/19/4.

DISCUSSION

15.The Plaintiff’s pleading specifically refers to the Defendant’s written submissions and oral submissions made during the hearing of his appeal before the learned Judge on 21 December 2006.

16.Whatever views the Plaintiff might take about the Defendant’s submissions, these should have been ventilated in his arguments before the learned Judge.  It is evident to anyone reading the transcript of that hearing that the Plaintiff had full opportunity to advance his arguments before the learned Judge.  These included his contention that his opponents’ submissions before the Master were wrong or misleading.

17.It is also evident to anyone reading the learned Judge’s reasons for decision that she did, as she was supposed to, consider the Plaintiff’s application afresh in that hearing.  The learned Judge specifically referred to the Plaintiff’s arguments about the distinction between stay of execution and stay of proceedings as well as the relevance of his other pending actions.  She arrived at the same conclusion as the Master’s, after consideration of the Plaintiff’s such arguments.

18.If the Plaintiff takes the view that the learned Judge had not fully appreciated his argument, including his objection in respect of any part of the Defendant’s submissions, or that the learned Judge had been misled by the Defendant’s submissions as alleged, this would have been his concern to consider taking the matter further by appeal on such ground.  The Plaintiff had not done so.

19.Instead, the Plaintiff commenced the present action against the Defendant personally.

20.To begin with, the submissions of the Defendant before the learned Judge were made not on his own behalf but as counsel on behalf of the IRD.  There is no legal duty on the part of a litigant’s counsel personally towards the opposite party regarding how the counsel conducts the proceedings: see Business Computers International Ltd v Registrar of Companies [1988] Ch 228.  The Plaintiff’s reference to the codes of conduct governing both branches of the legal profession does not avail him, as the same do not afford him with an actionable cause of action for damages against counsel personally.

21.The Plaintiff’s claim plainly discloses no reasonable cause of action.  This alone suffices to justify an order to strike out the claim.

22.Further, by the present action, the Plaintiff effectively seeks to establish that the outcome of the hearing before the learned Judge would or, according to him, should have been different but for the Defendant’s (misleading) submissions.  This is tantamount to re-opening the argument before the learned Judge by way of the present action, though between different parties and ostensibly for a different cause of action.

23.I can well see the basis for the argument on behalf of the Defendant before this court that such initiation of legal proceedings in another form with a view to re-opening the issues decided against the Plaintiff by another court of competent jurisdiction in previous proceedings, in which the Plaintiff had a full opportunity of being heard on the issues, is abusive of court process: see Hunter v Chief Constable [1982] AC 529, 541B-E; 542C; Cosby v Government of the USA [2000] 3 HKC 688, 696A-G.  See also the most recent case of Nu Life International Limited v Healthy Living Products International Limited & Anor, unrep., HCA 1157/2006, 12 September 2007 at paras.40-46.

24.At a certain point in his submissions, the Plaintiff openly suggested that counsel now appearing for the Defendant in this hearing might also be misleading this court.  I find that this was an unwarranted accusation.

ORDER

25.The Plaintiff’s claim should be and is struck out.  That being the case, I also dismiss the action.  I make a nisi order that the Plaintiff shall pay the Defendant’s costs of this action including the costs of and occasioned by this application, such costs shall be taxed if not agreed.

Representation :

Plaintiff appearing in person and present

Mr. Matthew Leung, Senior Government Counsel, for the Defendant