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

DCCJ 2805/ 2007, DCCJ 2806/ 2007 & DCCJ 2930/ 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2805 OF 2007

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2806 OF 2007

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2930 OF 2007

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BETWEEN

Coram:  His Honour Judge Thomas Au in Chambers (open to public)

Date of Hearing:  8 November & 21 December 2007

Date of Reasons for Decision:  24 December 2007

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REASONS FOR DECISION

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Introduction

1.The Plaintiff (“Mr Wong”) by way of the actions under DCCJ 2805 and 2806 of 2007 claims against (in each of these actions) the 1^st Defendant (“Louie Wong”) and the 2^nd Defendant (“May Ip”) for damages in negligence or for breach of duties.  By way of the action under DCCJ 2930 of 2007, Mr Wong claims against Louie Wong also for damages for Louie Wong’s alleged misleading of the Court, which resulted in Mr Wong having to suffer allegedly certain damage and loss.

2.This is the consolidated hearing of the respective applications by Louie Wong and May Ip to strike out Mr Wong’s claim in all three actions, on the basis that they disclose no reasonable cause of action, or they are frivolous or vexatious.

Background

3.At the relevant time, Louie Wong was a senior government counsel of the Department of Justice, while May Ip was its law clerk.

4.In summary, Mr Wong’s present claims against Louie Wong and May Ip arise as follows.

5.In August 2006, Mr Wong brought a negligence claim against H H Judge Chow under DCCJ 3884 of 2006 on the basis that the learned judge had allegedly ignored his responsibility as a judge in granting a default judgment against Mr Wong in DCCJ 4492 of 2004, and in subsequently refusing to set it aside.

6.Also in August 2006, Mr Wong brought a separate negligence claim against Yuen and Tang JJA under DCCJ 3915 of 2006, again on the basis that the learned Justices of Appeal had allegedly ignored their responsibility as a judge in refusing to grant him leave to appeal against H H Judge Chow’s refusal to set aside the default judgment.

7.Louie Wong was assigned by the Department of Justice to act for the judges in response to Mr Wong’s claims under the 3884 and 3915 actions.  After filing the respective acknowledgement of service under these actions stating that the claims would be defended, Louie Wong as the defendants’ legal representative took out respective summonses in September 2004 to strike out Mr Wong’s respective claims.

8.On 6 October 2006, Louie Wong wrote to Mr Wong informing him the broad ground on which the striking out applications were based: that was, members of the judiciary were immune from legal action under Article 85 of the Basic Law.

9.After knowing the broad ground for the striking out applications, on 1 December 2006, Mr Wong filed Notices of Discontinuance in respect of the 3884 and 3915 actions.

10.On 1 February 2007, bill of costs for the 3884 and 3915 actions were filed by the Department of Justice.  On 21 March 2007, May Ip sent copies of the bill of costs together with the Registrar’s Notices to Mr Wong, seeking payment of these costs.   The cover letters were signed by her for Law Officer (Civil Law).  Such procedure was taken pursuant to O 62 rr 10[1] and 21(4)[2] of the Rules of the District Court.

11.On 21 June 2007, Mr Wong took out two summonses respectively under the 3884 and 3915 actions to “dismiss” the costs, and to counterclaim costs against the Civil Litigation Unit of the Department of Justice, for its alleged intentional misleading and inciting of him to carry on with unnecessary proceedings and to incur unnecessary costs. Registrar Ko subsequently dismissed these applications.

Mr Wong’s  cause of action under the present claims

12.Given the above background, Mr Wong’s alleged cause of action against  Louie Wong and May Ip are in essence as follows.

The 2805 action

13.In the 2805 action, Mr Wong contends that Louie Wong, knowing that members of the judiciary are immune from suit, misled Mr Wong by completing and filing the acknowledgment of service in the 3884 action, thereby inducing Mr Wong to continue the action against the judge.  It is Mr Wong’s case that, in so misleading and inciting him, Louie Wong was negligent or in breach of his duty, apparently towards Mr Wong as a layman litigation party, to inform and correct him in advance that he could not as a matter of law sue judges for their official acts.    As a result of Louie Wong’s alleged negligence, Mr Wong says he has suffered loss and damage in terms of various further and unnecessary costs incurred by him in the 3884 action, and other subsequent applications or actions issued by him allegedly a result thereof.

14.Mr Wong also says May Ip has committed a wrong (the exact legal nature of this alleged wrong has not been made clear by the Statement of Claim and by Mr Wong in his submissions) against him, as she should not have proceeded with the taxation against him because the 4492 action has not been concluded.  Mr Wong claims against May Ip for unquantified damages for various further and unnecessary costs incurred by him in the subsequent applications or actions issued by him allegedly a result thereof.

The 2806 action

15.For the same contentions as made in the 2805 action, Mr Wong claims that Louie Wong was negligent or in breach of his duty in similarly misleading him and inducing him to continue with the action under the 3915 action against the two Justices of Appeal.  Mr Wong again says May Ip has committed a wrong against him, as she should not have proceeded with the taxation against him because the 4492 Action has not been concluded.

The 2930 action

16.In the 2930 action, Mr Wong alleges that Louie Wong misled the Court by applying O 62 rr 10 and 21(4) to seek costs against him.  He says these rules are simply not applicable in the special circumstances where he was, as stated above, misled by Louie Wong in continuing with the claims against the judges.

17.Apparently, Mr Wong’s claim is premised again on Louie Wong’s alleged breach of duty as government lawyer in misleading him and the Court, thereby resulting in his loss and damage in terms of various further and unnecessary costs incurred by him in the 3884 and 3915 actions and other subsequent applications or actions issued by him allegedly a result thereof.

Applicable principles

18.It is trite that the Court will only strike out a claim when it is clear and obvious that it lacks a reasonable cause of action, or that it is frivolous, vexatious.

19.A reasonable cause of action means a cause of action with some chance of success when it is assumed that all the allegations in the plaintiff’s statement of claim are established.  A claim is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed.  A claim is regarded as vexatious when it is oppressive and/or lacks bona fides:  Hong Kong Civil Procedure 2008, paras 18/19/6, 18/19/8.

Discussion

The 2805 action

20.Mr Matthew Leung, government counsel acting for Louie Wong and May Ip, submits that Mr Wong’s claim in the 2805 action clearly has no reasonable cause of action, since it is well established that a litigant and his legal representative does not owe any duty to his adversary in relation to the conduct of the proceedings, and no action for breach of duty or care could be brought by a litigant against his opponent.  For the same reason, Mr Leung further submits that Mr Wong’s claim is similarly frivolous and vexatious, as it lacks any proper foundation and could not possibly succeed.

21.In support of his submissions, Mr Leung relies on the authority of Business Computers International Ltd v Registrar of Companies [1988] Ch 229. 

22.In Business Computers, the plaintiff brought a claim against the 2^nd defendant in negligence for damages.  The basis of the plaintiff’s claim was that, in presenting a petition to wind up the plaintiff, the 2^nd defendant was negligent in serving the petition on an address which was not the plaintiff’s.  A winding up order was then made in the absence of the plaintiff’s appearance.  The plaintiff eventually successfully set aside the winding up order on the basis that the petition was served on the wrong address.  The plaintiff then brought the claim against the 2^nd defendant in negligence for damages in respect of the damage alleged to have been caused to it by the making of the winding up order.  The 2^nd defendant applied to strike out the plaintiff’s claim on the ground that, inter alia, it disclosed no reasonable cause of action.

23.Scott J (as he then was) struck out the plaintiff claim on the ground that it disclosed on reasonable cause of action against the 2^nd defendant.  In so doing, and after reviewing a long line of authorities on the imposition of duty of care, the learned judge held at 241B-C as follows:

“In my judgment, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process, or in regard to any other step in the proceedings.  The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort.”

24.Mr Wong in rebuttal says this principle may apply in an ordinary situation, but it should not apply in the present case since Louie Wong, as a civil servant and government counsel, owes a “higher” duty to a layman opponent like him.

25.I accept Mr Leung’s submissions and reject Mr Wong’s contentions:

(1)        I see no reason not to follow Scott J’s statement of principle, in particular in light of the adversarial litigation system entrenched in the common law jurisdiction: It is for the party himself to decide what cause of action and what steps he wants to take in claming against his opponent. 

(2)        Thus, subject to the court’s rules and regulations governing the conduct of litigations, there is simply no reason to impose a duty on a litigant to “correct” his opponent’s mistakes. 

(3)        I also do not see any legal basis to impose a “higher” or “special” duty on government counsel acting on behalf of a party in litigation as contended by Mr Wong.   In such cases, the government counsel assigned to act for a party is conducting the proceedings on behalf of the party in the same role as any other privately engaged legal representative.   Mr Wong has not provided any authority to suggest otherwise.  As such, the general principle as stated by Scott J must similarly apply.

26.In light of this general principle and for the reasons expanded below, in my judgment, Mr Wong’s claim does not disclose any reasonable cause of action against Louie Wong and May Ip. His claim is also frivolous and vexatious, as it cannot possibly succeed, and its continuation is oppressive to the other party.

27.Insofar as the claim against Louie Wong is concerned:

(1)       Louie Wong owed no duty to Mr Wong to “correct” him on his mistake in bringing a wrongful claim against a judge.   There is thus no question of negligence or breach of duty on the part of Louie Wong as alleged by Mr Wong. 

(2)      Further and in any event, Louie Wong’s filing of the acknowledgment of service and the issue of a summons to strike out Mr Wong’s claim were steps he, as a legal representative, had properly taken as required under the rules of the Court.  There is again no question of any wrong committed by Louie Wong against Mr Wong in taking these procedural steps.

28.Insofar as the claim against May Ip is concerned, similarly, there cannot be any question of negligence or breach of duty because she also owed no duty to Mr Wong in any respect.  When writing to Mr Wong to provide him with the bill of costs, May Ip was only taking a step properly required under the rules of the Court, and there is thus again no question of there being any wrong committed by her against Mr Wong as alleged.

29.For the above reasons, I will strike out the 2805 action on the basis that it discloses no reasonable cause of action, and/or that it is frivolous and vexatious.

The 2806 action

30.Since the causes of action and factual allegations of Mr Wong’s claim in the 2806 action are identical to that of the 2805 action, for the same reasons stated above, I will also strike out the 2806 action on the basis that it discloses no reasonable cause of action, and/or that it is frivolous and vexatious.

The 2930 action

31.As I mentioned above, there is nothing irregular or wrong for Louie Wong, as the legal representative for the then defendants, to have proceeded under O 62 rr 10 and 21(5) of Rules of District Court to seek costs against Mr Wong upon his discontinuation of the 3884 and 3915 actions.  The rules clearly entitle Louie Wong, acting on behalf of the then defendants, to do so.  As such, there is no question of Louie Wong having misled the Court or having committed any wrong recognized by the law against Mr Wong.

32.In the premises, there is no reasonable cause of action demonstrated by Mr Wong in this claim against Louie Wong.  The claim is similarly frivolous and vexations. 

33.I will therefore also strike out the 2930 action for lack of a reasonable cause of action, or for being frivolous or vexatious.

Conclusion

34.For the reasons as set out above, I order that the 2805, 2806 and 2930 actions be struck out on the basis that they disclose no reasonable cause of action, or they are frivolous or vexatious.

35.I further grant an order nisi that costs of these applications and of the three actions be to the Defendants, to be taxed if not agreed.  This order will be made absolute 14 days from the day of judgment.

Plaintiff, acting in person, present.

Mr. LEUNG Man Liang, Matthew, Senior Government Counsel, instructed by Department of Justice for Defendants.

[1]  O 62 r 10 effectively allows a defendant to tax his costs of the action when a plaintiff by notice in writing wholly discontinues his action.

[2] O 62 r 21(4) provides for summary taxation when the bill of costs does not exceed HK$100,000.00.