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

DCCJ 4641/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4641 OF 2007

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BETWEEN

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Coram : Deputy District Judge J. Ko in Chambers

Date of Hearing : 24^th January 2008

Date of handing down Judgment : 4^th February 2008

J U D G M E N T

1.This is the Defendant’s application, based on Order 18, rule 19 of the Rules of the District Court and the inherent jurisdiction of the Court, to strike out the Plaintiff’s action on the ground(s) that it discloses no reasonable cause of action; and/or it is scandalous, frivolous or vexatious; and/or it may prejudice, embarrass or delay the fair trial of the action; and/or it is otherwise an abuse of the process of the Court.

Background

2.The Defendant is a senior government counsel of the Department of Justice.

3.In a related action, DCCJ 145/2007, the Plaintiff claimed against another senior government counsel Mr. Louie Wong for damages sustained as a result of “untruthful submissions” and “untruthful information” allegedly made or provided by Mr. Wong in a court hearing.  The background of that claim has been set out in paragraphs 2 to 6 of the judgment dated 13^th September 2007 in that action.  Mr. Wong applied in that action to strike out the Plaintiff’s statement of claim and to dismiss the action.  The application was argued before Her Honour Judge Mimmie Chan on 27^th August 2007.  The Defendant was assigned by the Department of Justice to represent Mr. Wong at that hearing in support of the application.  By the said judgment, the learned Judge struck out the Plaintiff’s statement of claim and dismissed that action on the ground that it disclosed no reasonable cause of action.

4.Mr. Wong also took out an application for a restricted proceedings order (“RPO”) and a restricted application order (“RAO”) against the Plaintiff in DCCJ 145/2007.  The background leading to the application has been set out in paragraphs 2 to 3 and 9 to 22 of the judgment dated 12^th November 2007 in that action.  The application was argued before Her Honour Judge Mimmie Chan on 11^th October 2007 and the Defendant was again assigned to represent Mr. Wong in support of the application.  By the said judgment, the learned Judge made a RPO and a RAO against the Plaintiff.

This action

5.By this action, the Plaintiff claims against the Defendant for an unspecified amount of damages for “loss of convenience, honour and rights, damage to [his] goodwill and reputation”.  According to his statement of claim, it is the Plaintiff’s pleaded case that:

“	5.	On 27th August 2007, during the hearing of DCCJ 145/2007 before Honour Judge Mimmie Chan, the Defendant provided untruthful information to mislead the court.  Honour Judge Mimmie Chan handed down the decision on 13th September 2007 to strike out and dismiss Plaintiff’s action.
	6.	On 11th October 2007, during the hearing of DCCJ 145/2007, before Honour Judge Mimmie Chan, the Defendant provided untruthful Chronology to mislead the court.
	7.	As a Senior Government Counsel and a legal professional, the Defendant should fully aware and understand that he should have professional ethics and should be strictly obligated to relevant regulations.  However, the Defendant did not follow the regulations and misled the court.  It made the Plaintiff seriously suffer from damages and losses.”

6.The Plaintiff has clarified that his claim against the Defendant is based on negligence.  He deposed to inhis affirmation that:

“

In this case, due to the negligent conducts of the Defendant during the trial of DCCJ 145 of 2007 for damages sustained by the Plaintiff as a result of untruthful submissions made by the Defendant to mislead the Court, his negligent conduct infringed my rights and damaged my reputation.  His misleading and unprofessional conducts are totally unacceptable.”

Discussion

7.It is only in plain and obvious cases that the court should exercise its summary power to strike out any pleading: Hong Kong Civil Procedure 2008, para.18/19/4.

8.Generally speaking, whether a lawyer is liable to a third party for negligence depends on whether his obligation vis-à-vis his client can be said to be undertaken or imposed for the benefit of that third party: see Clerk & Lindsell on Torts, 19^th Edition (2006), para.10-107.  In the ordinary course of adversarial litigation, no duty is owed to the client’s adversary: see Business Computers International Ltd. v. Registrar of Companies [1988] 1 Ch. 229.

9.The Plaintiff submits that Business Computers International Ltd. does not apply because:

(a)	that case was concerned with service of a winding up petition, whereas the present action involves providing “untruthful information” and “untruthful chronology” to the Court; and
(b)	the Defendant is a civil servant working in the Department of Justice and should be subject to higher standard of justification and responsibility.

10.I disagree.

11.No two cases are the same.  What matters is the reasoning behind a judgment.  In Business Computers International Ltd.,Scott J. reviewed a long line of authorities and then concluded at 241B that:

“

… there is no duty of care 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 litigant and not in tort.”

I see no reason why the above cannot be applied to this case.  

12.The Defendant was acting for Mr. Wong in DCCJ 145/2006.  The applications argued on 27^th August 2007 and 11^th October 2007 were made against the Plaintiff.  The information and chronology were provided by the Defendant to the court in support of the relevant application.  Those information and chronology were not provided for the benefit of the Plaintiff.  As such, no duty was owed by the Defendant to the Plaintiff.

13.The Plaintiff has provided no authority in support of his proposition that a civil servant working in the Department of Justice should be subject to higher standard of justification and responsibility.  I cannot see any basis to impose a higher standard or duty on a government counsel than that of an ordinary lawyer.

14.Therefore, even assuming without deciding that the Defendant did provide “untruthful information” and “untruthful chronology” to the court at the hearings as alleged, the Plaintiff does not have any cause of action against the Defendant and this action is bound to fail.

15.As stated by Scott J. in Business Computers International Ltd., the safeguards against any such impropriety should be in the rules and procedure of the court.  The Plaintiff was present at both hearings and could have addressed the Court on any “untruthful information” and “untruthful chronology” provided by the Defendant/Mr. Wong.  As a last resort, the Plaintiff may consider appealing against those judgments.

16.By commencing this action and dressing it up as a claim against Mr. Wong’s advocate, the Plaintiff is in effect mounting a collateral attack on the final decision in terms of the judgments dated 13^th September 2007 and 12^th November 2007 of a court of competent jurisdiction.  This is an abuse of the process of the court and should not be allowed: see Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529 at 541B-C; and Cosby v. Government of the USA [2000] 3 H.K.C. 688 at 695I-696G.

17.For the above reasons, I am of the firm view that the Plaintiff’s statement of claim does not disclose any reasonable cause of action and that the Plaintiff’s claim in this action is an abuse of the Court’s process.  I should add here that despite the Plaintiff’s elaboration at the hearing, I am not satisfied that there is any “untruthfulness” in the information and chronology provided by the Defendant to the Court in DCCJ 145/2007.

18.I therefore order the Plaintiff’s statement of claim be struck out on the grounds that it discloses no reasonable cause of action and that it is an abuse of the process of the Court, and the Plaintiff’s action against the Defendant be dismissed with costs.

Postscript

19.At the hearing before me, the Plaintiff has repeatedly accused the senior government counsel representing the Defendant of misleading this court.  Lest there be any misunderstanding, it should be appreciated that the above judgment is based on my understanding of the Court’s record, the Plaintiff’s documents and submission and the authorities.  Any suggestion that the senior government counsel representing the Defendant has misled me is unwarranted.

20.This judgment is written in English because all the pleadings, affirmation, written submissions and authorities are in English.  Since the Plaintiff is unrepresented and the argument was conducted in Chinese, he may, if he wishes,write to my clerk within 7 days from the handing down of this judgment to arrange for this judgment to be interpreted to him by a court interpreter.

The Plaintiff, in person.

Mr. Newton CHAN, Senior Government Counsel of the Department of Justice, for the Defendant.