Wong Yu Cho Rolly Trading As Marco Polo and China Oversea Technical Development v. Ho Chi Sum and Another

HCMP 1394/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1394 OF 2007

(ON APPEAL FROM HCA 2132 NO. OF 2005)

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BETWEEN

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Before : Hon Yeung JA in Chambers

Date of Hearing : 8 October 2007

Date of Judgment : 31 October 2007

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judgment

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1.The applicant, Wong Yu Cho, Rolly trading as Marco Polo and China Oversea Technical Development, commenced proceedings in the District Court (DCCJ 4492/2004) against Inland Revenue Department (“IRD”) for negligence and for trespass by its staff, Mr Ho Chi Sum. IRD counterclaimed for the payment of tax earlier assessed.

2.The applicant did not file a defence to the counterclaim, leading to a default judgment against him. The applicant then sought to set aside the default judgment on the basis that there was an agreement with IRD that the proceeding would be set aside until he gave further notice to IRD.

3.Both the District Court and the Court of Appeal rejected the applicant’s assertion, and hence the default judgment on IRD’s counterclaim against him still stands whereas his claim for negligence and trespass against IRD and Mr Ho is pending.

4.In October 2005, the applicant commenced HCA 2132/2005 in the High Court seeking to set aside DCCJ 4492/2004 again on the basis of the alleged agreement. He further suggested that both IRD and Mr Ho conspired to deprive him of a fair hearing and should therefore be liable for “loss of convenience, honour and right, and damage to…goodwill and reputation”.

5.Having heard submissions on 12 May 2006, Mr Registrar Chan struck out the applicant’s claim in HCA 2132/2005 as a competent judicial tribunal had finally determined the issues, and the doctrine of Res Judicata operated against him.

6.On 7 June 2006, prior to the handing down of Mr Registrar Chan’s decision, the applicant submitted an affirmation of Miss Cheung Wing Yan to the effect that she was present as a witness when the applicant reached the agreement with Mr Ho.

7.The applicant then appealed against Mr Registrar Chan’s decision.

8.On 21 February 2007, Chung J dismissed the applicant’s appeal.

9.Five months later on 25 July 2007, the applicant sought an extension of time to appeal against Chung J’s decision.

10.The applicant claims that he was advised by a staff of the Resource Centre for Unrepresented Litigants to wait for the result HCAL 15/2005 and hence the delay.

11.The applicant repeats the suggestion that there was an agreement with Mr Ho to temporary set aside DCCJ 4492/2004, which agreement was reached in the presence of a witness, Miss Cheung Wing Yan.

12.The applicant alleges that Mr Ho tried to cover up the truth and that the District Court’s refusal to set aside the default judgment and to grant him leave to appeal were unfair, leading to adverse impact on his credit rating, goodwill and reputation.

13.The applicant reiterates that he was the victim of an attempted kidnap and that he did not owe any tax to IRD, which nevertheless has illegally frozen his assets, causing him financial difficulties. The applicant accuses IRD of an abuse of process.

14.Res Judicata is an important principle to adhere to as there should be an end of litigation and that no one should be proceeded against twice for the same cause.

15.It is an abuse of process for any party to raise, in subsequent proceedings, not only matter which had been adjudicated upon, but also matter which could and therefore should have been litigated in the earlier proceedings.

16.Wigram VC in Henderson v Henderson (1943) 3 Hare 10 said p 115:

“

…where a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject matter in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the trial.”

17.As Chung J rightly pointed out in his judgment, the main issue raised, namely whether there was an agreement that the proceedings in DCCJ 4492/2004 would be set aside until the applicant gave further notice, had been determined by the courts.

18.In particular, the Court of Appeal, in the judgment dated 7 March 2006, had completely rejected the applicant’s contention on the issue and the applicant’s application for leave to appeal to the Court of Final Appeal had been dismissed both by the Court of Appeal and the Appeal Committee of the Court of Final Appeal.

19.The Court of Appeal’s decision on 7 March 2006 is therefore final and conclusive. Neither this court nor any court is entitled to overrule that decision. The applicant is not entitled to raise the same issue in any other proceedings against IRD or Mr Ho. It is an abuse of process by starting another proceeding for the purpose of upsetting the decision in an earlier proceeding.

20.Chung J was right to dismiss the applicant’s appeal on the doctrine of res judicata. The judge was also right to comment that the alleged new evidence of Miss Cheung did not take the applicant’s case any further.

21.Quite apart from the obvious and lengthy delay, I find the applicant’s suggestion that a staff of the Resource Centre for Unrepresented Litigants had misled him totally unbelievable.

22.In any event, the applicant fails to demonstrate any merits in his proposed appeal. What he does is a clear abuse of the Court’s process.

23.There is no valid basis upon which his application for an extension of time to appeal against Chung J’s decision should be granted.

24.The application is therefore dismissed with costs to be taxed if not agreed.

Applicant : In person.

Mr Newton Chan, GC of the Department of Justice for the 1^st and 2^nd Respondents.