Re Cheung Kin Chung

HCAL 119 / 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 119 OF 2010

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Before : Hon Au J in Chambers

Date of Hearing: 15 December 2010

Date of Judgment: 15 December 2010

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J U D G M E N T

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1.This is the hearing of whether a Restricted Proceedings Order (“RPO”) should be made against the Applicant, Mr Cheung Kin Chung (“Mr Cheung”).

2.On 23 November 2010, this Court handed down its judgment (“the Judgment”) dismissing Mr Cheung’s application for leave to apply for judicial review.

3.At paragraphs 14 and 15 of the Judgment, I indicated that the Court should consider whether to make a RPO against Mr Cheung, in light of the fact that his application for leave to apply for judicial review is the second unmeritorious one made by him on the same subject matter taken out within a period of 3 months. The first of these applications was made under HCAL 84/2010, of which Hon Fok J dismissed Mr Cheung’s then application as being, inter alia, without merits.   I also gave directions for the hearing of whether the Court should make the relevant RPO against Mr Cheung, and for him to file an affirmation to state the grounds of his opposition, if any, to the making of the order.

4.Mr Cheung filed his affirmation in opposition on 26 November 2010.

5.However, Mr Cheung did not appear at the hearing today.

6.I am satisfied that he should be fully aware of today’s hearing, as this was fixed while he was in Court at the hearing on 26 November 2010 of his ex parte application for leave for judicial review, and this hearing time was repeated at paragraph 15 of the Judgment.  In the premises, notwithstanding his absence at the hearing today, I would still proceed to consider the matter in light of the opposition set out in his affirmation.

7.In his affirmation, the ground of opposition set out by Mr Cheung is that such a RPO order, if made, would be contrary to Article 35 of the Basic Law (“BL 35”), which “allows Hong Kong residents to have the right to have access to the courts”.

8.BL 35 provides as follows:

“Hong Kong residents shall have the right to ...... access to the courts, ...... and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

9.This ground of opposition is without merits.

10.In Ng Yat Chi v Max Share Ltd (FACV 5/2004, Li CJ, Bokhary, Chan, Ribeiro PJJ and Lord Scott NPJ, 20 January 2005), the Court of Final Appeal has firmly concluded that the making of a RPO in appropriate cases to prevent a vexatious litigant from abusing the court process in repeatedly issuing proceedings which clearly have no merits or legal basis is not in contravention of BL 35[1].

11.The background of Mr Cheung’s above mentioned previous applications for leave for judicial review relates to what he says to be “retaliations” by security guards posted at the public housing estate where he lives as a result of his making complaints against them some 10 years ago, and the continued failure by the relevant authorities to respond to his complaints about these retaliation conducts of the security guards.  These background matters have been set out at paragraphs 4-5 of the Judgment and more substantively in Fok J’s judgment under HCAL 84/2010[2].

12.After the dismissal of his first application for leave for judicial review under HCAL 84/2010 by Fok J on 4 October 2010, where the learned judge held that the application was without merits, Mr Cheung then took out a fresh application for judicial review only about a month later on 12 November 2010 on essentially the same subject matter under the present HCAL 119/2010.  In my view, these conducts, when looked at against the above background, show that Mr Cheung is a vexatious litigant who characteristically refuses to accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis, and that these repeated applications are an abuse of court’s process.  

13.In my judgment, it is therefore appropriate and necessary to make a relevant RPO against Mr Cheung in these circumstances. 

14.I will make the following order:

(1)   Mr Cheung be prohibited from commencing any fresh proceedings, by whatever originating process, in the High Court or District Court concerning any matters involving or relating to or touching upon or leading to the proceedings in HCAL 84/2010 and HCAL 119/2010 without the leave of the Court of First Instance;

(2)   All applications for leave under paragraph (1) be made by Mr Cheung ex parte in writing to the designated judge, namely :

(a)   the Honourable Mr. Justice Au; or

(b)   in the event of Mr Justice Au’s unavailability, such other Judge of Judges of the Court of First Instance as the Chief Judge of the High Court may designate;

(3)   At least 7 days before filing any application for leave under paragraph (1), Mr Cheung do notify in writing each intended defendant of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by Mr Cheung from any such intended defendant, that Mr Cheung do file a copy of each such response together with his said application for leave;

(4)   Any intended defendant having notice of such intended proceedings be entitled, but under no obligation, to place before the court written representations regarding the same;

(5)   All applications made pursuant to this Order and all ancillary matters be dealt with by the court on the papers and without any oral hearing unless the designated judge should otherwise direct;

(6)   If Mr Cheung should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master of Judge, such fresh proceedings be referred to the designated judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)   Notice of each decision by the designated judge made pursuant to this Order be given in writing to Mr Cheung and to each intended defendant named in the fresh proceedings;

(8)   Whether or not any fresh proceedings are brought to the notice of the designated judge, if a defendant is served with such proceedings without the relevant documents being accompanied by either an Order giving leave to commence such proceedings or a Direction that leave to commence such proceedings is not required, such defendant be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;

15.I further order that there be no order as to costs of today’s hearing.

The Applicant, acting in person, absent.