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 : 28 September 2010

Date of Decision : 28September 2010

Date of Reasons for Decision: 29 September 2010

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REASONS FOR DECISION

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1.On 28 September 2010, I heard and dismissed with costs three summonses issued by the respondent on 16, 22 and 27 September 2010, which include an application for leave to appeal to the Court of Appeal against the dismissal of the 16 September 2010 summons. I now reduce my oral reasons into writing.

The summonses dated 16 and 22 September 2010

2.The summons dated 16 September 2010 seeks to adjourn sine die the trial herein until after the respondent’s appeal to the Court of Final Appeal against conviction in case no. ESCC5404/2008.  The trial herein has been part-heard and due to resume on 11 and 12 October 2010. 

3.The summons dated 22 September 2010 seeks leave to appeal to the Court of Appeal in the event the summons dated 16 September 2010 is dismissed; and also an order vacating the trial date of 11 and 12 October 2010.

4.The respondent had previously made similar application to adjourn the trial herein and/or to vacate the trial date.   Many of the matters she advances for the present application had already been raised in her previous applications.  There have been no change in circumstances, let alone material change of circumstances, as would justify the bringing of the present application.  

5.Her present applications for adjournment and for leave to appeal against the refusal of adjournment fall to be dismissed for a number of reasons.  First, the respondent is not entitled as of right to appeal to the Court of Final Appeal.  Leave to appeal is required.  The time for her to apply for leave to appeal to the Court of Final Appeal has long lapsed. The respondent has also not made any application to apply for leave out of time.   All that the respondent has very late in the day obtained is a counsel certificate dated 21 September 2010 regarding the prospect of an appeal to the Court of Final Appeal.  The certificate is required under section 26A of Legal Aid Ordinance, Cap.91, for the purpose for an appeal to the Registrar of High Court against the Director of Legal Aid’s refusal of legal aid for an appeal to the Court of Final Appeal.   At the most, the respondent has very belatedly tried to get legal aid for the proposed appeal.  The fact remains there is no application for leave to appeal or appeal existing and pending in the Court of Final Appeal.  In the circumstances, the respondent simply cannot begin to ask that the trial herein be adjourned until after her proposed appeal to the Court of Final Appeal.

6.The respondent suggested that someone of the Legal Aid Department advised her not to make an application to the Court of Final Appeal while acting in person, but that as her application is already out of time, she might as well wait for the outcome of her legal aid appeal.  I find such suggestion extraordinary and I have grave reservation as to whether, how and why such advise came to be given.  Be that as it is, it does not detract from the fact that there is no appeal in the Court of Final Appeal.

7.Second, and critically, the respondent’s reason for the adjournment application is misconceived.  It is said that if her appeal were to be allowed by the Court of Final Appeal, and if the respondent were found guilty of contempt in these proceedings, then the court when passing sentence will have due regard to the fact that she had been wrongly imprisoned and pass a lenient sentence, including not make any imprisonment order.  For one thing, it is premature to say the conviction and sentence in ESCC5404/2008 would be quashed by the Court of Final Appeal.  Further, it is assumptive to suggest that when considering sentence in this case, the court must have regard to the conviction and sentence (whether rightly or wrongly made) in ESCC5404.2008.  It should be noted that the allegations of contempt in this action are not the same as, and indeed go beyond, the facts and incident giving rise to the criminal prosecution in ESCC5404/2008.   If the respondent were to be sentenced in this action, it will be on the basis of the matters of which she was found guilty in this action.

8.Third, the respondent had referred to, and exhibited the transcripts of, the hearing before Fung J herein on 13 January 2009 and the hearing before the Court of Appeal in HCMP 1465/2010 on 7 September 2010.  It is not demonstrated how they can advance a case for adjourning the trial in this action.  If anything, the hearing before Fung J shows clearly that the respondent should be well aware that the authorities have established that a person can be committed for and found guilty of contempt for matters on which he has already been criminally prosecuted, convicted and sentenced.   It is also in that hearing that Fung J made the decision that allegations of contempt that also form the subject matter in ESCC5404/2008 are not to be proceeded with in this action.     

9.Fourth, the respondent also said that her legal aid application for this action is still pending and that if she were given legal aid her lawyers would need more time to deal with the case.  This is a premature and speculative argument.   In any case, it will be for the lawyer assigned by the Director of Legal Aid, if there is to be one, to make the application.   

10.Fifth, the respondent suggested that it would not be a long delay because she believed her appeal to the Court of Final Appeal should be over in six-month time.  The question of delay is not to be assessed by only looking at how long the present adjournment may take.  Rather, one has to view it against the entire history of these proceedings; that it was commenced in 2008 and had been adjourned once to accommodate the much belated legal aid application.  Further, there is no solid basis for the belief that the adjournment will take no more than six-month.

11.For the reasons stated above, I dismissed the application to adjourn the trial by summons dated 16 September 2010.  Further, there being no arguable ground of appeal, paragraph 1of the summons dated 22 September 2010 applying for leave to appeal is refused.

12.As to paragraph 2 of the summons dated 22 September 2010, which seeks to vacate the trial date, the respondent’s argument is that as she will apply directly to the Court of Appeal for leave to appeal, the appeal procedure will not be completed before 11 October 2010, hence the trial date should be vacated.  However, the mere fact that there is a proposed appeal or even a pending appeal against the refusal of an adjournment of the trial does not mean that the trial must not or cannot proceed as scheduled.  On the contrary, unless there are cogent reasons or a stay ordered by the Court of Appeal, there is no reason why the trial, which has been part-heard and re-fixed once, should not proceed as listed.  If the respondent wishes to have the appeal completed before the trial resumes, she will have to persuade the Court of Appeal to expedite her leave application and appeal.     

13.The respondent made a further point that, by not acceding to her application to adjourn or vacate the trial, the court is effectively forcing her to take out more applications in the period leading to 11 October 2010, adding that she does not mind wasting time and adopting such a course.   This is an irresponsible and abusive submission.  A litigant has a choice whether to make an application to the court.  Once he decides to make it, he must abide by the outcome of the adjudication, irrespective of whether it is in his favour.  After a final determination has been made by the court, he cannot abuse the judicial system and process by seeking relentlessly to renew the application or re-open the subject matter, whether in an identical form or in a varied form. 

14.For these reasons, I dismissed paragraph 2 of the summons dated 22 September 2010.

15.Costs should follow event.  The respondent is ordered to pay the applicant the costs of the two summonses, summarily assessed at HK$7,500.

The summons dated 27 September 2010

16.The relief sought in the summons dated 27 September 2010 is: “Leave to ask Justice Robert Tang to sit next to Justice Chu during the trial to be held one day, in order to cross examine Ms Sandra Lee”.

17.The respondent’s explanation for this summons is that she had received a letter dated 24 September 2010 from the court, which was a reply to several letters written by her.  The respondent also claimed she has an outstanding complaint against Tang VP, which involved Ms Sandra Lee and the Judge’s Clerk.  The respondent said Tang VP should help her to cross-examine Ms Lee.

18.The application is completely out of order. There is not a shred of reason for making such an application in these proceedings or otherwise.   It is a clear instance of misuse and abuse of court process in general and these proceedings in particular.  I dismissed the summons and ordered the respondent to pay the applicant the costs of the summons summarily assessed at HK$2,250.

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

The respondent, unrepresented, appeared in person.