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

DCCJ 145/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 145 OF 2007

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BETWEEN

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Coram : Her Honour Judge Mimmie Chan

Date of hearing : 11^th October, 2007

Date of handing down Decision : 12^th November, 2007

DECISION

Background

1.This is an application by the Defendant for a Restricted Proceedings Order and for a Restricted Application Order to be made against the Plaintiff, pursuant to Practice Direction 11.3, and in reliance upon the Court of Final Appeal decision in the case of Ng Yat Chi v. Max Share Ltd [2005] 1 HKLRD 473.

2.The Plaintiff is a businessman who carried on different businesses, among which are Marco Polo  and China Oversee Technical Development.  The Plaintiff first commenced DCCJ 4492/2004 ("DCCJ 4492") on 26 August 2004 against the Inland Revenue Department (“IRD”), claiming that the IRD had made a wrong assessment of tax against him, had trespassed into his premises on 24 August 2001, and had illegally frozen his bank accounts.  The IRD made a counterclaim in these proceedings for assessed tax in the sum of $831,600.  Judgment in default of defence was entered on 30 December 2004 on the counterclaim. 

3.This led the Plaintiff to issue at least 16 other actions against various parties between October 2005 and July 2007.  A table of these proceedings prepared by the Defendant was prepared for the hearing of this application.  The table is attached to this judgment.  It summarizes the date of issue of all these proceedings, the parties named as defendants, the cause of action relied upon and the outcome or status of the proceedings. 

Issues

4.The issues for determination on the Defendant's application are simply whether a Restricted Proceedings Order ("RPO"), and a Restricted Application Order ("RAO"), should be made in the terms sought by the Defendant.

5.In determining whether the RPO and the RAO should be made, the issues are:

(1)	Is the Plaintiff a vexatious litigant who has abused and is likely to continue abusing the process of the court?
(2)	If the answer to (1) above is yes, what is the class of actions to be prohibited under the RPO and/or the class of applications to be prohibited under the RAO?

Is the Plaintiff a vexatious litigant who has abused and is likely to continue abusing the process of the court?

6.In its judgment in Ng Yat Chi v. Max Share Ltd, the Court of Final Appeal referred to the activities of a vexatious litigant, against whom Restricted Proceedings Orders can be made.  The Court referred to persons who will pursue abusive proceedings as usually exhibiting some of the following features.

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Hopeless claims are instituted.  Totally misconceived appeals are launched.  Judgments of the court, both interlocutory and at trial and both first instance and appellate, may not be accepted.  There are likely to be attempts, often repeated, to re-litigate the same matters as have already been determined."

7.Further, the Court of Final Appeal explained the problems caused by vexatious litigants who repeatedly and consistently engage in the abuse of the court's process, and pointed out that there are many variants of such abuse and of what motivates the abuse :

"

It may represent a calculated attempt by a defendant to delay an inevitable judgment or its execution.  Or it may be a malicious campaign of harassment directed against a particular adversary.  Actions which are unintelligible or wholly frivolous may be commenced by litigants who are unfortunately mentally unbalanced.  Sometimes the vexatious conduct springs from some deeply felt sense of grievance left unassuaged after unsuccessful litigation. The vexatious litigant typically acts in person and characteristically refuses to accept the unfavorable result of the litigation, obstinately trying to re-open the matter without any viable legal basis.  Such conduct can become obsessive with the litigant not shrinking from making wild allegations against the court, or against the other side's legal representatives or targeting well-known public personalities thought to be in some way blameworthy.  Numerous actions may be commenced and numerous applications issued within each action."

8.I am sympathetic with the Plaintiff's position in as much as I believe that the course which he adopted sprang from a genuine sense of grievance which he felt when he was not able to fully present what he regards to be his defence to the counterclaim filed in DCCJ 4492, and the fact that he does not understand that his actions have no legal basis.  Nevertheless, from the course adopted by the Plaintiff and the actions which he has taken, which I will outline below, I have concluded that the Plaintiff is a vexatious litigant who has abused and is likely to continue abusing the process of the court.

9.After the defendant in DCCJ 4492 filed a counterclaim, the Plaintiff issued a summons to seek an extension of time to file a defence to counterclaim.  The summons was heard by Master Ko on 27 October 2004.  The Plaintiff alleged that Mr. Ho, Senior Government Counsel for the defendant in DCCJ 4492, had agreed with him to a stay of proceedings in DCCJ 4492.  This was denied by Mr. Ho, who claimed that the defendant in DCCJ 4492 had only agreed to an extension of time  being granted to the Plaintiff to file a defence to counterclaim.  The Plaintiff alleged that because he was under the impression that DCCJ 4492 was stayed, he did not file any defence to the counterclaim, and because of the default, judgment was entered on the counterclaim on 30 December 2004 for the assessed tax of $831,600 ("Default Judgment").  The Plaintiff applied to set aside the Default Judgment.  This application was dismissed by Judge Chow.  He applied for leave to appeal, which application was refused by Judge Chow.  The Plaintiff applied to the Court of Appeal for leave to appeal, which application was refused, first on paper by Cheung, JA, and then by Yuen and Tang, JJA in HCMP 2032/2005.  He applied for leave to appeal to the Court of Final Appeal, which application was dismissed first by the Court of Appeal, and then by the Court of Final Appeal.  The Plaintiff applied for stay of execution of the Default Judgment, which application was dismissed.  He applied for a stay of proceedings, which was also dismissed.

10.The Plaintiff then issued HCA 2132/2005 against Mr. Ho as defendant, claiming that Mr. Ho was in breach of the verbal agreement he made with the Plaintiff in relation to the stay of proceedings in DCCJ 4492.  The IRD was joined as defendant in this action, the Plaintiff claiming that the IRD was in violation of the Basic Law, had contravened human rights and was negligent.  HCA 2132 was struck out by the court.  The Plaintiff's appeal against the striking out was dismissed.  Judgment was reserved on the Plaintiff's application for leave to further appeal.

11.The Plaintiff also issued DCCJ 3884/2006 against Judge Chow, claiming that the judge denied having received the Plaintiff's Reply and Defence to Counterclaim during the hearing of his application for setting aside the Default Judgment in DCCJ 4492.  The Plaintiff filed a notice of discontinuance, but later applied to reinstate the proceedings, which application was dismissed.  He also applied to add Senior Government Counsel as a defendant in the proceedings, which application was also dismissed.

12.The Plaintiff then issued DCCJ 3915/2006 against Tang, JA and Yuen, JA , alleging that the result of the appeal in HCMP 2032 was unfair and unjust.  The Plaintiff filed a notice of discontinuance, then applied to reinstate the proceedings.  The application was dismissed.  The Plaintiff also applied to add Senior Government Counsel as a defendant in the proceedings, which application was also dismissed.

13.The Plaintiff issued DCCJ 4092/2006 against Mr. Chan, another Senior Government Counsel, to claim that Mr. Chan had misled the court when he appeared at a hearing in HCA 2132/2005.  The Plaintiff also alleged that Mr. Chan had misled Mr. Chiu, an IRD assessor, to make a false statement in an affirmation filed in DCCJ 4492.

14.DCCJ 4093/2006 was issued on the same day as DCCJ 4092/2006, naming Mr. Chiu as defendant.  The Plaintiff claims in these proceedings that Mr. Chiu had made false statements in his affirmation filed in DCCJ 4492 and had misled the court.

15.The Plaintiff also issued DCCJ 145/2007 against Mr. Wong, Senior Government Counsel, to claim that Mr. Wong had made wrong submissions to Master Ko at a hearing in DCCJ 4092 and DCCJ 4093, that the two actions are similar and thus should be tried together.  The action was struck out, but the Plaintiff is seeking leave to appeal.

16.DCCJ 146/2007 was issued by the Plaintiff against Mr. Chan, Senior Government Counsel, to claim that Mr. Chan had deliberately mixed up "stay of proceedings" and "stay of execution" in his submissions during the hearing of the Plaintiff's appeal against the dismissal of stay of proceedings before Judge Wong in DCCJ 4492.  The action was struck out, but the Plaintiff is also seeking leave to appeal.

17.Separately to DCCJ 4492, the Plaintiff had issued DCCJ 5016/2005 against the IRD and three of its officers for the incident of alleged trespass  into the Plaintiff's premises on 24 August 2001.

18.The Plaintiff also issued DCCJ 2805/2007 against Mr. Wong, Senior Government Counsel, to claim that Mr. Wong had misled and incited the Plaintiff to continue his suit against Judge Chow by filing an acknowledgment of service in DCCJ 3884.  A Law Clerk, Miss Ip, was joined as defendant for claiming costs against the Plaintiff in DCCJ 3884/2006.

19.DCCJ 2806/207 was issued on the same basis against Mr. Wong and Miss Ip for filing acknowledgment of service and claiming costs in DCCJ 3915/2006.

20.Three further sets of proceedings (namely, DCCJ 2807/207, DCCJ 2808/2007 and DCCJ 2930/2007) were issued by the Plaintiff against Senior Government Counsel, in respect of steps taken and their role in DCCJ 4492, DCCJ 3884 and DCCJ 3915, and/or claiming that they had misled the court. 

21.DCCJ 3372/2007 was issued by the Plaintiff against a law costs draftsman in relation to his work in relation to a bill of costs issued against the Plaintiff in DCCJ 4492.

22. The proceedings issued by the Plaintiff, summarized above, either (1) relate to or stem from the Default Judgment; (2) relate to court decisions made against him;  (3) relate to steps taken by Government Counsel acting for the Defendant in DCCJ 4492 and other defendants in proceedings instituted by the Plaintiff; (4) relate to steps taken by law clerks or costs draftsmen acting for the Defendant in DCCJ 4492 and other defendants in proceedings issued by the Plaintiff; or (5) are proceedings against the IRD.  The last category includes DCCJ 4093/2006 against the IRD assessor for false statements and for misleading the court; DCCJ 5016/205 against the IRD and its three officers for trespass; DCCJ 5483/2006 against the IRD for trespass and for freezing his bank accounts; and HCAL 15/207 for leave to apply for judicial review in respect of the IRD's wrong assessment of tax, trespass, and other acts, which application was refused.

23. Proceedings which relate to the Default Judgment relate to a matter which has been conclusively determined by the court in the Counterclaim in DCCJ 4492.  The Plaintiff has exhausted all avenues of appeal open to him in relation to this application to set aside the Default Judgment entered on the counterclaim.  Arguments that the Default Judgment was entered as a result of breach of agreement made between the Plaintiff and Government Counsel, or the Court being misled, had been canvassed, and dismissed by the Court.  The actions which he commenced after the Default Judgment was entered against him on the Counterclaim in DCCJ 4492, alleging that the court had been misled at the hearings which led to the Default Judgment and to other judgments or orders made against him, are clearly attempts to re-litigate matters which have already been determined by the court. 

24.The Plaintiff clearly has no cause of action against the judges who decided against him.  Nor does he have any cause of action against Government Counsel, law clerks and law costs draftsmen acting for his opponents in proceedings which the Plaintiff instituted.

25.As for the proceedings against the IRD and its officers, these are clearly duplicated as they relate to the same matter of the IRD's alleged trespass and the freezing of the Plaintiff's accounts.

26.It is clear from paragraphs 23 to 25 that the Plaintiff has no viable legal grounds to commence and pursue the legal proceedings which he has instituted.

27.The Plaintiff opposes the applications for the RPO and RAO. I have done my best to summarize his arguments in opposition, as follows.

28.First, the Plaintiff claims that he has not abused the process of the court, as it is necessary for him to take action against different parties for the different wrongs committed.  He claims that each case has a different factual background, and different damages claimed, such that all cases are independent, and must be kept separate for there to be separate trials, so that the Court will not be confused.  By way of illustration, he explained that he took action against the IRD, and then against the Commissioner of IRD, as the Commissioner must be responsible for the acts of his officials and his department.  He also explained that he has a clear cause of action against Government Counsel acting for his opponents, either in negligence or for misleading the court.

29.It can be seen from my summary in paragraphs 9 to 21 above that, at most with the exception of the actions against the IRD (see paragraph 22 on page 8), the proceedings instituted by the Plaintiff relate to or stem from the Default Judgment in DCCJ 4492, and hearings which took place in the proceedings.  If they relate to issues which had already been determined by the court, they cannot be re-litigated, whether in the same action, or in another action.   Although there can be a cause of action in negligence, advocates or lawyers do not owe any duty of care to their opponents in legal proceedings.  The different proceedings against the IRD in relation to the same subject matter of alleged trespass are clearly evidence of abuse, and the IRD has applied for DCCJ 5483/20006 to be struck out.

30.Second, the Plaintiff argues that Hong Kong's judicial system is unique in China, and that the Basic Law guarantees his personal rights.  According to the Plaintiff, the decision of the Court of Final Appeal, like all other court decisions, are for reference only and should not be binding on a judge hearing a matter.  He argues that the decision of Ng Yat Chi is not relevant to the matter before me in the District Court.

31.I am clearly bound by the Court of Final Appeal decision in Ng Yat Chi, which is clearly relevant to my determination of the applications before me.  The Court of Final Appeal has fully considered the constitutional right of access to the courts under the common law and as guaranteed by article 35 of the Basic Law, and has made it clear that such right of access does not involve a right to abuse the court's process.

32.Third, the Plaintiff argues that to restrain the Plaintiff from issuing further proceedings or from making further applications in existing proceedings will prevent him from taking action against other parties in respect of past wrongs committed against the Plaintiff.  He must be able to pursue his existing actions as many cases are still under appeal.

33.As I clearly explained to the Plaintiff in the course of the hearing,  the grant of an RPO or RAO does not affect his right to continue any existing and undetermined action, or any right of appeal to the Court of Appeal.  Obviously, if he has a valid and viable claim against a party not covered by the scope of the RPO or RAO sought, his access to the court will not be affected by the grant of the RPO or RAO.

34.For the reasons set out in paragraphs 23 to 33 above, I am satisfied that in instituting the proceedings which I have referred to in paragraphs 10 to 21, and from the way the Plaintiff has conducted such proceedings, the Plaintiff has abused the process of the court.  Even in the course of the hearing before me, the Plaintiff had indicated that he intends to commence further proceedings against Senior Government Counsel acting for the Defendant in these proceedings, and has demonstrated that he is likely to continue abusing the court process.  In view of the sheer number of actions which the Plaintiff has issued, the subject matter of the proceedings in question and the steps he has taken, I consider that the RPO is a proportionate response.

What is the class of actions to be prohibited under the RPO?

35.The basis of the grant of an RPO is that the vexatious litigant be restrained from abusing the court's process by re-litigating in fresh proceedings, without viable legal grounds, matters which have already been determined by the court.  On such basis, I will make an order to prohibit the Plaintiff from commencing any fresh proceedings, by whatever originating process, in the District Court concerning any matters involving or relating to or touching upon or leading to or arising out of the following proceedings : -

The Counterclaim in DCCJ 4492/2004; DCCJ 3884/2006; DCCJ 3915/2006; DCCJ 4092/2006; DCCJ 145/2007; DCCJ 146/2007; DCCJ 2807/2007; DCCJ 2808/2007; DCCJ 2930/2007; and DCCJ 3372/2007.

The above proceedings all relate to or concern issues which have already been determined in DCCJ 4492, or in the proceedings themselves.

36.I am not prepared to extend the RPO to DCCJ 4093/2006; DCCJ 5483/2006; DCCJ 2805/2007 and DCCJ 2806/2007, as they do not appear to me to relate to any issue which has been determined by the court in those or other proceedings.  DCCJ 4093/2006 relates to false statements allegedly made by Mr. Chiu.  I have not been referred to any evidence that this issue was determined either in DCCJ 4492, or in any other proceedings.  Similarly, the issue of alleged trespass in to the Plaintiff's premises, which is the subject matter of DCCJ 5483/2006 has not yet been determined by the court in any proceedings.  I bear in mind that the main action in DCCJ 4492 has not been dismissed.  DCCJ 2805/2007 and DCCJ 2806/2007 relate to Senior Government Counsel's alleged acts of misleading and inciting the Plaintiff in relation to DCCJ 3884/20006 and DCCJ 3915/20006.  These issues have not been determined by the court, although there is a striking out application to be heard in early November 2007.

What is the class of the applications to be prohibited under the RAO?

37.I am satisfied that the Plaintiff has abused, and is likely to continue abusing, the court's process by persistently making unwarranted applications to the court in existing proceedings, and that the RAO sought by the Defendant is a proportionate response.  I will therefore make the order sought by the Defendant, to prohibit the Plaintiff from making any further or pursuing any issued application to the court (including any application to set down for trial) in DCCJ 4492, DCCJ 3884/2006 and DCCJ 3915/2006. 

38.I will make an order in terms of the Defendant's Summons dated 17 August 2007, save that the proceedings set out in paragraph 35 above will substitute the proceedings identified in Schedule 1 to the Summons.

39.I will further make an order nisi that the Plaintiff pays the Defendant the costs of the Defendant's application by its Summons dated 17 August 2007.

The Plaintiff appearing in person

Mr. Matthew Leung, Senior Government Counsel of Department of Justice, for the Defendant

Table showing Actions commenced by WONG Yu Cho Rolly against IRD, officers of IRD,

officers of the Department of Justice, law costs draftsman, District Court Judge, Justices of Appeal

[Position as at : 10 October, 2007]

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