WONG YU CHO ROLLYtrading as MARCO POLO andCHINA OVERSEA TECHNICALDEVELOPMENT v HIS HONOUR JUDGECHOW SIU HUNG STEPHEN

DCCJ3884/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3884 OF 2006

BETWEEN

DCCJ3915/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3915 OF 2006

BETWEEN

Before: H H Judge Lok in Chambers

Date of Hearing: 20 December 2007

Date of Decision:   20 December 2007

D E C I S I O N

1.  The Plaintiff has lodged notices of appeal against 2 orders made by Master Poon on 3 October 2007 in DCCJ No. 3884 of 2006 and DCCJ No. 3915 of 2006 respectively (“the 2 District Court Actions”), dismissing his both summonses dated 3 August 2007.

2.  In DCCJ No. 3884 of 2006, the Plaintiff alleged, inter alia, that during the hearing of his application for setting aside the default judgment entered against him in another action, DCCJ No. 4492 of 2004, H H Judge Chow denied having received his Reply and Defence to Counterclaim, and was biased against him and made unfair decision.  The Plaintiff claimed damages and compensation against Judge Chow.

3.  In DCCJ No. 3915 of 2006, the Plaintiff alleged that the result of the hearing in another action, HCMP No. 2032 of 2005, heard by Tang JA and Yuen JA was unfair and unjust.  It was alleged in the Statement of Claim that during the hearing for the application of leave to appeal to the Court of Final Appeal on 16 June 2006, Tang JA and Yuen JA ignored their problem of conflict of interest.  They repeatedly interrupted the Plaintiff and stopped him from expressing his view and did not respect his human rights.

4.  Applications were lodged on behalf of all the Defendants to strike out the 2 District Court Actions on the ground that they disclosed no reasonable cause of action.  The Plaintiff had been informed of the grounds for the striking-out application on 6 October 2006.  Before the substantive hearing of the striking-out application on 14 December 2006, the Plaintiff filed notices on 1 December 2006 to discontinue the 2 District Court Actions.

5.  Given that the Plaintiff discontinued the 2 District Court Actions without leave, bill of costs were filed pursuant to Order 62, Rule 10 of the Rules of the District Court.  The Plaintiff was informed of the amounts that the Registrar proposed to allow in taxation, and the Plaintiff was also informed of his right to apply for an appointment to have the Defendants’ bill of costs taxed.  However, the Plaintiff has not applied to tax the Defendants’ bill of costs.

6.  On 21 June 2007, the Plaintiff took out summonses in the 2 District Court Actions to dispute the costs claimed from him and to counterclaim costs against the civil litigation unit of the Department of Justice for intentionally misleading and inciting him to carry on unnecessary proceedings.  The Plaintiff’s summonses were dismissed by Registrar Ko on 29 June 2007.

7.  By another 2 summonses both dated 4 July 2007, the Plaintiff applied, inter alia :

(a)      to set aside the Plaintiff’s notice of discontinuance dated 1 December 2006;

(b)     to reinstate the 2 District Court Actions;

(c)      to counterclaim against Mr Louie Wong, senior government counsel responsible for the conduct of the 2 District Court Actions on behalf of the Defendants, for intentionally misleading and inciting the Plaintiff to carry on unnecessary proceedings; and

(d)     to counterclaim against Mr Louie Wong and Miss May Ip, a law clerk of the costs unit of the Department of Justice, for wasting the Plaintiff’s time and effort in handling the 2 District Court Actions.

8.  These 2 summonses were dismissed by Master Poon on 23 July 2007 with costs.  The Plaintiff’s application to appeal out of time against the decision of Master Poon was dismissed by H H Judge H C Wong on 7 December 2007. 

9.  The subject appeal before me relates to both summonses dated 3 August 2007 taken out by the Plaintiff in the 2 District Court Actions.  In these summonses, the Plaintiff applied to add Mr Louie Wong as an additional defendant in the 2 District Court Actions.  Master Poon refused the application on 3 October 2007. 

10.  On 12 November 2007, H H Judge M. Chan made a Restricted Proceedings Order and a Restricted Applications Order (“RPO”) against the Plaintiff, with the latter restraining the Plaintiff to take out fresh application in the 2 District Court Actions.  However, as the present appeal was lodged before the making of the RAO, I am bound to entertain the appeal.

11.  In my judgment, the applications were rightly dismissed by Master Poon.  Firstly, since the 2 District Court Actions have been discontinued on 1 December 2006, there is no question of amending the statements of claim of the discontinued actions by adding a new defendant.  The application is therefore wholly misconceived.

12.  Secondly, the intended claims against Mr Louie Wong are without any legal basis.  There is no legal duty on the part of a litigant’s counsel personally towards the opposite party regarding how the counsel conducts the proceedings (see: Business Computers International Limited v Registrar of Companies [1988] Ch 228).  Further, based on the evidence of the present case, I cannot find any fault on the part of Mr Wong in the conduct of the present cases.  Mr Wong had no duty to advise the Plaintiff as to how he should conduct his cases, and the Plaintiff had only himself to blame for taking out the 2 District Court Actions.

13.  Thirdly, the Plaintiff has commenced separate actions against Mr Louie Wong and Miss May Ip in DCCJ No. 2805 of 2007 and DCCJ No. 2930 of 2007 for allegedly misleading and inciting him to commence the 2 District Court Actions against the judges and to demand them to pay legal costs in connection with these actions.  The application to join the same defendant in the 2 District Court Actions for the same cause of action is therefore an abuse of the process of the court.

14.  Fourthly, the orders of Master Poon were made on 3 October 2007 while the notices of appeal were only filed on 20 October 2007.  Pursuant to Order 58 Rule 1(3) of the Rules of the District Court, notice of appeal from master to judge in chambers must be issued within 14 days after the order appeal against was made.  Hence, the time for the appeal against Master Poon’s 2 orders should have expired on 17 October 2007.  As I see it, there is no good reason to allow the Plaintiff to file the notices of appeal out of time.

15.  In the premises, I dismissed the Plaintiff’s applications to extend the time to lodge the appeal out of time. 

16.  At one stage, the Plaintiff mentioned an application to consolidate the 2 District Court Actions with DCCJ No. 2930 of 2007.  In case that the Plaintiff seeks to do so, he has to apply for leave to make such application pursuant to the RAO made by Judge M. Chan on 12 November 2007.  As the Plaintiff has failed to comply with the procedure laid down in the RAO, I do not entertain such application. 

Plaintiff, in person, present

Mr Newton Chan, SGC of the Department of Justice, for the Defendant