Secretary for Justice v. Yuen Oi Yee Lisa

HCMP2390/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2390 OF 2008

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BETWEEN

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Before : Hon Chu J in Chambers

Date of Hearing : 23 July 2010

Date of Decision : 28 July 2010

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DECISION

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1.There are before the court three applications taken out by the respondent. They are: (1) the summons dated 16 July 2010; (2) the summons dated 19 July 2010; and (3) the summons dated 22 July 2010 (referred to as “the 1^st, 2^nd and 3^rd Summons” respectively).

Relevant legal principles

2.Before dealing with the three Summonses, it is necessary to set out several matters of principle: 

(1) In all judicial proceedings, the principle of finality must be observed.  Hence, a litigant cannot persist relentlessly in making applications on matters that had already been applied for and determined by the court. 

(2) The current proceedings are brought by the Secretary for Justice to commit the respondent for contempt.  The primary and only focus of the court should be on whether the allegations made against the respondent as identified and set out in the Statement is proved and made out to the required standard. 

(3) Contempt proceedings are not civil claims.  The procedures for committal proceedings are governed by Order 52 of Rules of the High Court (RHC).  There is no scope for a respondent to make a counterclaim or a cross claim against the applicant or to launch a claim or attack against someone who is not a party to the proceedings. 

(4) The current proceedings were commenced by originating motion. Generally speaking, the evidence is received by way of affidavit, unless the court otherwise directs: Order 38 rule 2(3) of RHC.  The parties may apply for an order that the deponents attend court for the purpose of being cross-examined on the affidavits.  The cross-examination should be directed at and focused on matters in the affidavit. 

(5) Cross-examination will therefore not be allowed on matters extraneous to the issues in the particular proceedings in which the affidavit was filed: Re SBA Properties Ltd [1967] 1 WLR 799. 

(6) An application for cross-examination will be refused where the cross-examination would be for a collateral purpose: Comet Products (UK) Ltd v. Hawkex Plastics Ltd [1971] 2 QB 67.  

Summons dated 16 July 2010

3.I turn now to the 1^st Summons.  It seeks the following relief:

“(1) To order me to pay an amount of HK$529,701 to Miss Miranda Lam the third time immediate after the trial in order to annual my bankruptcy order in HCB8954 of 2007.

(2) Leave to put back the affidavit of Mr Tony Boulton made for this application dated 6^th November, 2008 to be [tried] together by Justice Chu on 24^th to 25^th August 2010.

(3) Leave to consider the false witness statement made by Mr Tony Boulton to the Sydney Police on 6^th November, 2008 in conjunction with the above.

(4) Leave NOT to cross-examine Miss Lee Yuk Yin after reading my affirmation made to Justice Lam on 29^th November2007 if not to cross examine with the other two staff.

(5) To delete the applicant’s allegation made for my voice mail left to the Clerk to Justice Lam on 24^th November, 2007.

(6) Leave to order the applicant to ask for an “Original” letter sent to Justice Lam or his Clerk when I was in Australia in Dec, 2007.”

4.The subject matter of the relief sought (except relief (5)) had already been considered and refused by the court in previous applications made by the respondent: see the Decision handed down herein on 22 July 2010.  Additionally, relief (1) is outside the scope of these proceedings.    

5.In the case of relief (2) and (3), the affidavit and statement given by Mr Boulton relate to the commencement of HCA189/2008 by the respondent but in the name of Mr Boulton.  As the institution of HCA189/2008 is the subject matter of a criminal prosecution against the respondent in ESCC5404/2008, it was ordered to be excluded from these contempt proceedings by Fung J’s order dated 13 January 2009.  The order is valid and binding on all parties.  It is not for this court to reverse it, which in effect is intended by the application for relief (2) and (3).

6.As for relief (4), the applicant has agreed to make Miss Lee Yuk Yin available at the trial for cross-examination on certain matters whereas the respondent’s application to cross-examine the other court staff (Miss Chung and Miss Cynthia Lee) had been refused: see paras. 22 to 24 and 27(B) of the Decision handed down on 22 July 2010.  It is up to the respondent whether she wishes to carry out cross-examination of Miss Lee Yuk Yin.  It is, however, not open to her to impose a condition on the order made.

7.The application for relief (5) is out of order.  At the trial, the court will have to decide whether the application’s allegations are substantiated.  The respondent cannot, while the trial is adjourned part-heard, made an interlocutory application demanding one of the allegations to be withdrawn.  

8.Finally, on relief (6), the respondent cannot make use of these proceedings to obtain production or discovery of documents from a person who is not even a party.

9.In conclusion, the 1^st Summons fails.  

Summons dated 19 July 2010

10.The 2^nd Summons seeks the following relief:

(1) Leave to appeal against the Order dated 12 July 2010.

(2) Leave to compare the seriousness of forgery between Mr Robert Lam and the respondent in ESCC5404/2008 in the eyes of law.

(3) To order an instant dismissal or resignation of the applicant.

11.On the application for leave to appeal, the order in question is a refusal of leave to issue a witness subpoena to compel Mr Robert Lam to attend the trial of these proceedings.  Mr Lam has not made any affidavit in these proceedings.  The decision refusing leave to issue the subpoena and the reasons for it were communicated to the respondent by letter from the court dated 12 July 2010. 

12.In order to obtain leave to appeal, the respondent must show that there are arguable grounds of appeal.  It would appear from the respondent’s affirmation and submissions that the reason for subpoenaing Mr Lam is that the respondent considered him to have forged his wife’s signature.  This is entirely extraneous to the matters in these proceedings.    The respondent has failed to show what are the intended grounds of appeal or that there are arguable grounds of appeal.  The application for leave to appeal must be refused.

13.As to the second and third relief, they are incapable of being the subject matter of proper applications in legal proceedings and are also irrelevant to the issues to be determined at the trial herein.  The applications are both irregular and misconceived and must be dismissed. 

14.The 2^nd Summons should be dismissed.

Summons dated 22 July 2010

15.The 3^rd Summons applies for leave to appeal against the order dated 22 July 2010 refusing leave to the respondent to cross-examine seven of the eight people named in the respondent’s summons dated 12 July 2010 (i.e. excluding Miss Lee Yuk Yin).    

16.No draft grounds of appeal have been provided by the respondent.  The affirmation in support of the leave to appeal application basically makes cross references to various letters written by the respondent to a number of people and other documents.  At the hearing, the respondent argued that it is in the public interest that the eight people named in the summons should be cross-examined.  The thrust of her argument runs as follows:

(1)        Mr Boulton, Miss Miranda Lam and Mr Robert Lam should all be imprisoned for what the respondent alleged to be their wrongdoings. 

(2)        The other people named in the summons dated 12 July 2010 had lied or instigated these proceedings or were responsible for her being sentenced to imprisonment in ESCC5404/2008.

(3)        Justice will be done if these people were either prosecuted or imprisoned or at the least be questioned by her.       

17.When refusing to grant the application of cross-examination in respect of Mr Boulton, Miss Miranda Lam, Miss Anita Lam and Miss Jenny Fung, I had said that the applications were made for collateral purposes and as means of retaliations against them.  This is further confirmed by the materials and arguments put forward to support the application for leave to appeal.  To the extent that the respondent had at the hearing repeatedly accused Miss Lee Ching Mei as the culprit behind the scene, there must be grave doubts as to the respondent’s real purpose and reason in seeking to cross-examine Miss Lee.  As to the other two court staff, the respondent said it would be unfair to Miss Lee Yuk Yin to be the only person to be cross-examined when the petition in HCB9860/2007 had also passed through the hands of other court staff.  I am unable to see how this affords an arguable ground of appeal. 

18.In short, the respondent has not shown there are arguable grounds of appeal.  Leave to appeal should be refused.  

Conclusion

19.In summary, all the three summonses are dismissed with costs to the applicant to be taxed if not agreed.

Mr Eric Ko, Government Counsel, of the Department of Justice for the applicant.

The respondent, unrepresented, appeared in person.