Lsw v. Lmym

HCMP 1041/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1041 OF 2008

(ON AN INTENDED APPEAL FROM FCMC 11418/2004)

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BETWEEN

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Before: Hon Tang VP and A Cheung J in Court

Date of Hearing: 20 June 2008

Date of Judgment: 7 July 2008

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J U D G M E N T

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Hon A Cheung J (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal.

2.The applicant acts in person.  The papers in this application are confusing.  But the necessary background can be gleaned from the court files – particularly helpful are three judgments given by the Court of Appeal in HCMP 1085/2006, HCMP 1534/2007 and CACV 77/2007 on 17 July 2006, 26 October 2007 and 19 March 2008 respectively, as well as Hartmann J’s judgment given in HCAL 147, 149 & 150/2007 on 4 January 2008.

Decree nisi – FCMC 11418/2004, HCMP 1085/2006 & FAMV 36/2006

3.Very briefly, the applicant was married to one Mr L.  The parties signed a deed of separation on 15 August 2002.

4.On 15 March 2006, Deputy District Judge C K Chan granted Mr L, the petitioner in FCMC 11418/2004, a decree nisiof divorce based on 2 years separation from the applicant.

5.Dissatisfied with the decision, the applicant sought leave to appeal to the Court of Appeal from the decision of the deputy judge, who refused her application.  By HCMP 1085/2006, the applicant sought leave to appeal from the Court of Appeal.  On 13 June 2006, the application was refused by Yeung JA on paper.

6.The applicant renewed her application before a two-member Court of Appeal.  By a judgment handed down on 17 July 2006, the Court of Appeal refused leave to appeal. 

7.On 18 October 2006, the Court of Appeal refused the applicant’s application for leave to appeal to the Court of Final Appeal.  The applicant sought leave to appeal from the Court of Final Appeal (FAMV 36/2006).  By an order dated 20 December 2006, the Appeal Committee of the Court of Final Appeal refused the application.

Tortious claims against HSBC & Madam W – HCA 1819/2006, CACV 77/2007 & CACV 43/2008

8.On 21 August 2006, the applicant as plaintiff commenced HCA 1819/2006 against Mr L’s employer (HSBC) and one Madam W, a colleague of Mr L who is said to be cohabiting with Mr L in a flat purchased with finance provided by their employer.  The applicant complained that Madam W had tortiously wronged her by having an affair with her husband and by falsely imprisoning him in the flat against his wish.  She alleged that HSBC as employer was liable or vicariously liable for Madam W’s torts.

9.On 4 January 2007, Master Yu struck out the statement of claim and dismissed the action as against the 1^st defendant (HSBC).  The applicant’s appeal from the master’s decision was dismissed by Deputy High Court Judge L Chan on 6 March 2007.  The applicant appealed to the Court of Appeal (CACV 77/2007), and the appeal was dismissed on 19 March 2008.  On 5 June 2008, the Court refused leave to appeal to the Court of Final Appeal.

10.In the meantime, the applicant took out an Order 14 summons against HSBC – notwithstanding that her action against HSBC had been dismissed (subject to her then appeal in CACV 77/2002).  Yam J had no difficulty in dismissing her application on 21 January 2008. 

11.Moreover, the judge made a restrictive application order (RAO) against the applicant, prohibiting her from making any further applications in HCA 1819/2006 without leave of the court and a restrictive proceedings order (RPO) against her, prohibiting her from commencing any fresh proceedings by whatever originating process concerning any matters involving or relating to or touching upon or leading to that action.

12.The applicant appeals against Yam J’s dismissal of her application for summary judgment against HSBC (CACV 43/2008).  The appeal has yet to be heard.

Ancillary relief – FCMC 11418/2004, HCMP 1534/2007 & FAMV 5/2008

13.On 22 June 2007, Deputy District Judge Levy heard the application for ancillary relief in the matrimonial cause between Mr L and the applicant.  On 18 July 2007, the deputy judge handed down a written judgment making various orders.

14.On 14 August 2007, the applicant sought leave to appeal from the deputy judge’s orders (HCMP 1534/2007).  The application was rejected on paper by Tang VP on 15 August 2007.  A two-member Court of Appeal heard the applicant’s renewed application for leave to appeal on 23 October 2007 and by a judgment handed down on 26 October 2007, it refused the application. 

15.On 20 December 2007, the Court of Appeal refused the applicant’s application for leave to appeal to the Court of Final Appeal.  On 8 May 2008, the Appeal Committee of the Court of Final Appeal likewise refused leave to appeal (FAMV 5/2008).

Applications for judicial review – HCAL 147, 149 & 150/2007

16.In December 2007, the applicant took out three applications for leave to apply for judicial review (HCAL 147, 149 & 150/2007).  She wanted to challenge by way of judicial review (1) the decree nisi made by the deputy district judge in the family court, (2) some decisions made by the Registrar and masters of the High Court which the applicant said were wrongly influenced by HSBC’s solicitors, and (3) the decisions of the Court of Appeal made in HCMP 1085/2006 and HCMP 1534/2007 on 18 October 2006 and 20 December 2007 respectively refusing the applicant leave to appeal to the Court of Final Appeal on each occasion.

17.On 4 January 2008, Hartmann J refused all three applications for leave.

Decree absolute – FCMC 11418/2004

18.By an order dated 19 May 2008, Deputy District Judge K W Wong granted a decree absolute of divorce.  A certificate of making decree nisiabsolute (divorce) dated 23 May 2008 was issued by the Registrar of the District Court accordingly.

Present application – HCMP 1041/2008

19.By an ex parte application, the applicant now seeks leave from this Court to appeal from the order of 19 May 2008 and the certificate dated 23 May 2008. 

20.The application is misconceived. 

21.Section 14(3)(d) of the High Court Ordinance (Cap 4) provides that no appeal shall lie to the Court of Appeal from an order absolute of dissolution of marriage by a party who had time and opportunity to appeal from the decree nisi on which the order was founded and who did not appeal from that decree.  Although the section does not say that no appeal shall lie if a party has unsuccessfully appealed against the decree nisi (which is the case here), the spirit and intent of the section must be to prohibit such an appeal as well.  To lodge such an appeal is, almost by definition, an abuse of the process of the court.  In any event, even assuming that such an appeal is not caught by section 14(3)(d) as such, leave to appeal should, as a rule, be refused save in the most exceptional circumstances.

22.Furthermore, assuming section 14(3)(d) does not apply, leave to appeal ought to be sought, at first instance, from Deputy District Judge K W Wong: Order 58, rule 2(4) & (5), Rules of the District Court (Cap 336H).  No valid reason has been advanced for applying for leave directly from the Court of Appeal: see Order 58, rule 2(6), ibid.

23.In any event, the applicant’s intended grounds of appeal, set out in an affidavit made by her on 2 June 2008, are wholly unarguable.

24.The applicant argues that the decree nisiof divorce dated 15 March 2006 should be rescinded pursuant to section 15C of the Matrimonial Causes Ordinance (Cap 179) and by reason of a number of other grounds.  These arguments have been rejected by the Court of Appeal in HCMP 1085/2006.  The applicant’s attempt to appeal from the Court of Appeal’s decision has been unsuccessful.  In those circumstances, the applicant cannot raise the same arguments or challenge the validity of the decree nisi again in this application.

25.It is an abuse of the process of the court to do so.

26.The applicant argues that in the order made by Deputy District Judge K W Wong dated 19 May 2008, it is recited that the Court has read an affidavit made by Mr L as petitioner, but in fact Mr L has only made an affirmation.  She therefore argues that there is an “apparent misrepresentation” in the order.  There is absolutely no merit in the argument.  The order, made in Chinese, only refers to the Court’s reading a “誓章” made by the petitioner.  The term “誓章” can mean either an affidavit or an affirmation.  There is no misrepresentation whatsoever.  In any event, the point is wholly immaterial to the validity of the order.  The applicant also says the affirmation was not signed by Mr L and his signature was forged.  There is no substance in it.

27.The applicant argues that the order of 19 May 2008 is contrary to a previous order dated 28 September 2007 made by the same deputy district judge, where it was ordered that hearing of the proceedings below be stayed until after the disposal of the applicant’s application for leave to appeal (HCMP 1534/2007), which was then scheduled to be heard by the Court of Appeal on 23 October 2007.

28.Again, this is a non-starter.  As described, HCMP 1534/2007 was heard by the Court of Appeal on 23 October 2007.  By a judgment handed down 3 days later, the Court rejected the application for leave to appeal.  Furthermore, the applicant’s application for leave to appeal to the Court of Final Appeal was rejected by the Appeal Committee of the Court of Final Appeal on 8 May 2008 under FAMV 5/2008.  In those circumstances, there was no impediment to the deputy district judge making the decree nisiof divorce absolute and he correctly did so by his order dated 19 May 2008.

29.The applicant also says that CACV 77/2007 and CACV 43/2008 are still pending before the court.  First, in relation to CACV 77/2007, as described, it was already disposed of by the Court of Appeal on 19 March 2008.  The applicant’s appeal was dismissed and leave to appeal to the Court of Final Appeal refused.  Secondly, CACV 43/2008, which is pending determination, relates to the applicant’s tortious claims against HSBC and Madam W.  It is difficult to see how CACV 43/2008 (or for that matter, CACV 77/2007) could prevent the deputy district judge from making the decree nisiof divorce absolute.  Nor did the earlier order of the deputy district judge dated 28 September 2007 refer to these two other appeals.

30.Then it is argued by the applicant that the order of Deputy District Judge K W Wong of 19 May 2008 does not comply with the requirement under section 17A(3)(b) of the Matrimonial Causes Ordinance (Cap 179) which provides that the court shall not make absolute a decree of divorce unless it is satisfied that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.

31.The argument is rejected.  In the order of 19 May 2008, it is specifically recited that the Court is satisfied that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.  As mentioned, orders have already been made for ancillary relief, and the applicant’s challenge against those orders has been dismissed by the Court of Appeal.

32.The applicant then argues that the certificate issued by the Registrar, although dated 23 May 2008, was only posted on 28 May 2008.  As a result, she was unable to appeal against the certificate within the 5-day period allowed by rule 116 of the Matrimonial Causes Rules (Cap 179A).

33.This argument is misconceived.  The substantive decision was made by Deputy District Judge K W Wong in his order dated 19 May 2008.  The issue of the certificate of decree absolute pursuant to rule 66 of the Matrimonial Causes Rules is only an administrative step.  There is no question of appealing against that certificate.

Outcome of present application

34.In those circumstances, the application for leave must be dismissed, with no order as to costs.

Striking out, RPO and RAO

35.Based on the matters described above, we take the provisional view that the applicant has shown herself to be a vexatious litigant who has been abusing the process of the court.  See Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1; Practice Directions 11.3.

36.Further, as regards CACV 43/2008, which is still pending before the court, we take the provisionally view that the appeal constitutes an abuse of the process of the court.  By applying for summary judgment against HSBC when the court had already struck out the claim against HSBC, the applicant was plainly seeking to re-litigate issues that had been adjudicated on and to mount a collateral attack against the court’s decision to strike out her claim.  Yam J was obviously right to dismiss the application for summary judgment.  To appeal from that decision is a continuation of the abuse of the process of the court, particularly when the decision to strike out has now been affirmed by the Court of Appeal (CACV 77/2007).

37.The court has inherent jurisdiction to strike out, of its own motion, abusive proceedings, so as to protect its own process from abuse:  Ng Yat Chi v China Resources (Holdings) Co Ltd [2005] 3 HKC 506, 523-526 (paras 26-36). 

38.We take the provisional view that such jurisdiction should be exercised in the present case to strike out the appeal in CACV 43/2008 with costs to HSBC and to grant a RPO to prohibit the applicant from appealing or applying for leave to appeal to the Court of Appeal from any judgment, order or determination in any proceedings concerning any matters involving or relating to or touching upon or leading to FCMC 11418/2004 and/or HCA 1819/2006, save with the leave of Tang VP (or another judge designated by the Chief Judge, High Court).

39.We also take the provisional view that a RAO should issue against the applicant to prohibit her from taking out any further applications in FCMC 11418/2004, including but not limited to any applications for leave to appeal to the Court of Appeal, without the leave of a family court judge to be designated by the Chief District Judge.

40.We also note that the RPO granted by Yam J is still in force to prohibit the applicant from commencing any fresh proceedings concerning any matters involving or relating to or touching upon or leading to HCA 1819/2006, without leave of the court.  We believe that there is no need to make any further RPO, at least for the time being, against the applicant. 

41.We note that Yam J’s RPO prohibits, without leave, the commencement of any fresh proceedings concerning matters involving or relating to or touching upon or leading to HCA 1819/2006 only and FCMC 11418/2004 is not referred to specifically as such.  But we take the view that any fresh proceedings concerning matters involving or relating to or touching upon or leading to FCMC 11418/2004 will almost invariably, if not always, be proceedings concerning matters involving or relating to or touching upon or leading to HCA 1819/2006 as well, so as to be caught by the RPO granted by Yam J. 

42.For the sake of completeness, we further note that the RAO granted by Yam J in HCA 1819/2006 is also extant and in full force.

43.If the applicant wishes to argue against the Court’s striking out CACV 43/2008 and/or making the intended RPO and/or RAO against her, she must lodge her submission in writing with the Court within 14 days after the handing down of this judgment, in which event (or in the event that no such submission is lodged within the time limit), the Court will decide the matter accordingly. 

44.In the meantime, we order that there be a stay of all further proceedings in CACV 43/2008 pending our decision on the matter and HSBC be notified accordingly.

The applicant, appearing in person