Tony Boulton v. Miranda Lam and Another

HCA 189/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. 189 OF 2008

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Before: Hon Lam J in Chambers

Date of Hearing: 11 April 2008

Date of Judgment: 14 April 2008

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J U D G M E N T

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1.I shall focus on the only pertinent issue in this judgment. As set out in my direction of 22 February 2008, the issue is whether this action was commenced with proper authority from the person named as the plaintiff.

2.A lot of irrelevant matters were raised in the affirmation of Lisa Yuen who named herself as Wang Kai Chi in this action. I shall continue to call her Yuen in this judgment. This court should not be distracted by irrelevancies and I will not deal with those irrelevant matters in this judgment.

3.Neither Mr Boulton nor the 1^st Defendant appears at the hearing. They have indicated that they did not wish to waste costs. In the light of the evidence, their stances are understandable. To require them to attend and incur further costs in this action only serve to advance Yuen’s vexatious objectives. 

4.The evidence clearly shows that this action was engineered by Yuen.

5.Yuen admitted in her own evidence that the writ was prepared by her and she procured the same to be issued on 1 February 2008. She also admitted that she signed the name of Mr Boulton on the writ. She said she did so with the authority of Mr Boulton. Her case is that she had written a letter to Mr Boulton on 21 January 2008. In that letter, she enclosed a draft writ prepared by her and she said it would be filed and served against the intended defendants on 1 February 2008 if she did not receive any objection from Mr Boulton. She asked Mr Boulton to contact her before 31 January 2008 if he disagreed with her proposal to file and serve the said writ.

6.Yuen did not receive any objection from Mr Boulton before 31 January 2008. She therefore went ahead with the issue and service of the writ in this action on 1 February 2008.

7.In his affidavit, Mr Boulton denied he had authorized Yuen to issue the writ in this action. Whilst he agreed that Yuen had sent her the letter of 21 January 2008, he said he had ignored that letter because Yuen had been sending him a huge volume of correspondence which were meaningless to him.

8.As soon as Mr Boulton found out that a writ had actually been issued in his name, he wrote to the court to put on record that he did not authorize the same.

9.A person cannot unilaterally force another person to give him or her authority to do some acts on the latter’s behalf. Thus, one cannot delude oneself that authority has been given to him or her simply because the other does not respond to his or her suggestion of taking a particular course of action on the other’s behalf. There must be some prior positive acts by the alleged principal which can reasonably lead the agent to believe that authority has indeed been conferred upon the agent before a case of implied authorization can be sustained.

10.In the present case, there is no evidence that Mr Boulton did any positive acts that could reasonably lead Yuen to believe she had implied authority from him to prepare the writ in question and to issue and sign the same in his name. Yuen cannot unilaterally impose a duty on Mr Boulton to respond to her letter of 21 January 2008. Given the fact that Yuen had been sending huge volume of unwelcome materials to Mr Boulton, it is understandable that Mr Boulton chose to ignore her. I have adverted to Yuen’s tactics of harassment by tiresome correspondence in other judgments regarding her litigation, see for example my judgment in HCA 2107 of 2006, 8 August 2007, para. 50.

11.On the evidence, I find that Mr Boulton has never authorized Yuen to issue the writ in the present action. Nor did he authorize Yuen to sign the writ on his behalf. Mr Boulton actually said in his affidavit that the allegations in the Statement of Claim are untrue. Therefore, the present action must be struck out and dismissed.

12.Moreover, Yuen had named herself as a defendant in this action (using the name of Wang Kai Chi). It is a clear case of conflict of interests. She had previously done the same in High Court Action No. 1974 of 2007. In that action, she prepared a writ on behalf of three Filipino maids to advance a claim against, inter alias, Miranda Lam, the 1^st Defendant in this action. She also made herself a defendant in that action. At a hearing on 18 October 2007, Yuen accepted that it would not be appropriate for her to be involved in the preparation and prosecution of the plaintiffs’ claims given the conflict in interests. Instead of an injunction restraining her from having further involvement in that regard, Yuen gave undertakings to this court on 18 October 2007 that she would not act for those plaintiffs nor perform any court procedures for them. Thus, Yuen must have been perfectly aware that it would not be appropriate for her to have any involvement in the issue of the writ in the present action.

13.Yuen explained why she felt necessary to have herself joined as a defendant in the present action in Exhibit 1 to her affirmation filed herein. She said at paragraph 14 of that exhibit,

“At first, it was only an action from Mr Tony Boulton against Miranda. However, I was so afraid to be left out of the game when JSM may discontinue this action for TB and ML. I therefore add my name as one of the defendants in my letter and Writ of Summons dated 21 January 2008 sent to TB.”

14.The ulterior and improper motive of Yuen was clearly borne out by paragraphs 17 to 26 of the same Exhibit 1. She wished to “by-pass” this court in filing action against Miranda Lam on 1^st February 2008 because she “did not want ML to have a Happy NY [meaning Chinese New Year] when she had harmed me seriously …” The background to this statement is that this court had granted several RPOs against Yuen restraining her from instituting legal proceedings against Miranda Lam without the leave of this court.

15.At paragraph 16 of her Exhibit 4, Yuen described this action as an act of revenge by her against Miranda Lam.

16.Yuen had made previous attempts to circumvent the RPOs, see my judgments in HCB 9806 of 2007 (27 November 2007), and HCA 24 of 2008 (11 January 2008 and 15 February 2008). As I said in the judgment of 11 January 2008 in HCA 24 of 2008, Yuen’s deliberate and persistent efforts in trying to get around the RPOs were acts of disobedience in contravention of the orders of this court. They are clear acts of contempt.

17.In my judgment, the inescapable conclusion is that the present action is in substance another attempt by Yuen to harass Miranda Lam with unmeritorious and vexatious legal proceedings. She knew she could not do it in her own name. She therefore tried to do so in the name of Mr Boulton even though she did not have proper authorization from him.

18.The situation is exacerbated by the fact that at a hearing on 3 December 2007, this court had expressed concern about Yuen acting in the name of Mr Boulton in pursuing litigation against Miranda Lam in view of her RPO leave application for bankruptcy petition presented in the name of Mr Boulton. In response, Yuen withdrew her application for RPO leave.

19.Since Yuen is not a qualified legal practitioner, she has no business in instigating litigations in the names of other people. Given her track record in abusing the legal process and her propensity to resort to vexation in conducting legal proceedings, allowing her to intermeddle in the litigations of others would not be in the interests of the parties to the litigations. In this connection, reference can be made to my judgment in HCA 2735 of 2006 on 22 August 2007. Coupled with the fact that she saw fit in the present action to exploit the right of a litigant to act in person to commence legal proceedings in the name of another person to circumvent the RPOs granted against her (and she had done so on previous occasions and she is still threatening to do so in the future in the name of a person called Eddie Marchbanks, see her Exhibit 6), it is appropriate for this court to grant an injunction to restrain her from drafting, preparing issuing or filing any court documents for any person other than herself in any legal proceedings.  Such an injunction is necessary as Yuen is also a bankrupt and there could be difficulties in enforcing any costs orders against her.

20.I have invited Yuen to make submissions on the proposed injunction at the hearing. She could not explain why she should be allowed to intermeddle in the disputes of others though she claimed that such an injunction would be futile. Yuen said it is up to other litigants to decide whether they want to pursue any litigation and if they do whether they would do it in person or through lawyers.  That may be so. But that does not give Yuen a licence to start proceedings in the name of others. Nor can that be an excuse to allow her to contaminate the litigation of others with her vexatious tactics or to use such litigation as a medium to satisfy her own ulterior motive of harassment when she is prevented from doing so in her own name in view of the RPOs granted against her.

21.I will therefore make an order dismissing the action. I will also grant an injunction restraining Yuen from drafting, preparing, issuing or filing any court documents for any person other than herself in any legal proceedings. The injunction covers acts done on a gratuitous basis as well as acts done in consideration for a fee or other form of remuneration.

22.Since the action was occasioned by Yuen’s abuse of the legal process, she must pay the costs of all other parties in this action. I propose to make a gross sum order and any party who wants costs shall file with the court and send to Yuen a written skeleton bill within 14 days. If she wants, Yuen can respond in writing within 7 days thereafter. Unless otherwise directed, this court will then fix such costs pursuant to Order 62 Rule 9(4)(b).

23.Employing deceptive or misleading means to procure an originating process to be issued in contravention of a RPO can be a contempt of court. In this connection an analogy can be drawn with Dobson v Hastings [1992] 2 All ER 94. There are enough materials calling for an investigation whether Yuen has committed any contempt in HCB 9806 of 2007 and the present action. I regard these as instances of serious interference with the proper administration of justice. I direct the Registrar to refer these two cases to the Secretary for Justice to consider whether contempt proceedings should be brought against Yuen.

24.Lastly, since February 2008 Yuen has faxed a large number of documents to this court. Such acts are in breach of my order dated 23 November 2007. She initially did so in the pretext that the documents were exhibits instead of letters. That is not a good excuse. This court does not receive exhibits by way of fax. If Yuen wishes to file any court documents, including exhibits to her affirmation, she should file it physically through the Registry in the usual manner.

25.Yuen also continued to make phone calls to my clerk and left voice messages under the name of Wang Kai Chi. Irrespective of the names Yuen chose to identify herself in the phone calls, they are caught by my order of 23 November 2007.

26.For her benefit, to avoid any misunderstanding, I shall revise the terms of the relevant injunction as follows,

27.The above injunction applies irrespective of the subject matters referred to in the documents. In other words, the injunction is applicable generally, irrespective the action or actions in which Yuen wishes to put forward the relevant document. The same applies in respect of telephone calls.

The Plaintiff, in person (absent)

Messrs JSM for the 1^st Defendant (absent)

The 2^nd Defendant, in person