Case Document

100%Judiciary

HCMP 1178/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1178 OF 2009

(ON AN INTENDED APPEAL FROM DCCJ NO. 4126 OF 2007)

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BETWEEN

	YUNG MEI CHUN （翁美珍）	Plaintiff
	and
	CHAN SING CHUEN （陳聖傳）	Defendant

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Before: Hon Tang VP and Kwan JA and Lam J

Date of Hearing: 26 March 2010

Date of Decision: 26 March 2010

Date of Reasons for Decision: 31 March 2010

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.The background to this application can be gathered from the judgment of this court (differently constituted) given on 4 September 2009. We will not repeat the background, save that by that judgment, the plaintiff was refused leave to appeal from the judgment of District Judge Lok given in DCCJ 4126/2007 (unreported, dated 11 June 2009). Under section 14AB of the High Court Ordinance, Cap. 4, the decision of 4 September 2009 is final.

2.In the 4 September 2009 judgment the court also made an order pursuant to O. 59 r. 2A(8) that the applicant may not request the determination to be reconsidered at an oral hearing inter partes.

3.Notwithstanding the order made under O. 59 r. 2A(8), the applicant applied for an oral hearing inter partes. That was refused by Yeung JA on 14 September 2009.

4.By summons dated 22 September 2009, the plaintiff applied to set aside the judgment dated 4 September 2009 as well as Yeung JA’s order of 14 September 2009.

5.The summons of 22 September 2009 was dismissed by the judgment of 5 October 2009 (Tang VP and Yeung JA) where we said:

“6. We will not repeat what we have said in our judgment of 4 September 2009. It appears from the events described in that judgment that the plaintiff has abused, and is likely to continue abusing the court’s process by persistently making unwarranted applications to the court. We therefore in exercise of our inherent jurisdiction make a provisional order prohibiting the plaintiff from making any further application to this Court in HCMP 1178/2009, save with leave of Tang VP (or another judge designated by the Chief Judge, High Court). Ng Yat Chi v China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.”

6.The plaintiff was given an opportunity to make representations within 14 days after the handing down of the judgment of 5 October 2009 which the plaintiff has done on 19 October 2009. Following the consideration of those submissions by the judgment of 2 November 2009, an order, a Restricted Application Order (RAO) was made prohibiting the plaintiff from making any further application to this court as aforesaid.

7.In the meantime on 2 October 2009, the plaintiff purported to file a Notice of Motion dated 2 October 2009 for leave to appeal to the Court of Final Appeal from the judgment of this Court given on 4 September 2009. By a decision dated 2 November 2009, the plaintiff was told that the decision of 4 September 2009:

“… refusing leave to appeal to this Court is final. See section 14AB of the High Court Ordinance, Cap. 4. That being the case, the notice of motion dated 2 October 2009 is hereby dismissed without a hearing.”

8.By a judgment (Tang VP and Yeung JA) also dated 2 November 2009 a RAO order was made.

9.We are now concerned with the plaintiff’s application, by a notice of motion, dated 2 November 2009, for leave to appeal to the Court of Final Appeal and we quote:

“… from the judgment of the Court of Appeal in HCMP No. 1178 of 2009 given on 5 October 2009 …”.

10.Since the judgment of 4 September 2009 was already the subject of the Notice of Motion dated 2 October 2009 for leave to appeal to the Court of Final Appeal, we labored under the impression that by the Notice of Motion of 2 November 2009, the plaintiff was seeking to challenge the court’s intention to make an RAO. That is why we were puzzled by the material, supplied to the court, relating to the merits of the decision of 4 September 2009.

11.At the hearing on 26 March 2010, we were told that we have misunderstood the plaintiff’s Notice of Motion of 2 November 2009. It was the decision of 4 September 2009 that she was seeking to challenge and not the intention to make a RAO. That was surprising because we would have thought that after the judgment of 2 November 2009 the plaintiff would have realized that the judgment of 4 September 2009 was final and that she would have taken steps to withdraw the Notice of Motion of 2 November 2009 instead of taking up more of the court’s time. In any event, there is a simple answer to the application. The answer had been communicated by the judgment of 2 November 2009, namely, that the decision of 4 September 2009 is final.

12.The fact that the plaintiff had taken out a summons on 22 September 2009 to set aside the judgment of 4 September 2009 does not alter the substance of her application. It is still a challenge to the refusal by this court to grant her any leave to appeal against the order of Judge Lok. Thus, even though the plaintiff submitted that she was seeking leave to appeal to the Court of Final Appeal with regard to the dismissal of that summons on 5 October 2009, the intended appeal is equally devoid of any merit.

13.For the above reasons, we have dismissed the motion of 2 November 2009 with costs in favour of the defendant assessed at $200.