Iu Po Cheung v. The Commissioner for Census & Statistics and Another

HCA1120/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1120 OF 2012

--------------------------

--------------------------

------------------------

J U D G M E N T

------------------------

1.I have no doubt that there is no merits in this appeal by which the plaintiff seeks to reverse a decision of Master J Wong striking out his statement of claim (“Statement of Claim”) and dismissing this action. This is the third action brought by the plaintiff in respect of his complaints concerning his previous employment at the Census and Statistics Department (“Department”).

2.A succinct history of the previous actions can be found in the Decision of the learned Master dated 26 February 2013 (“Decision”) at paras 3 to 12.  The second action went all the way to the Court of Appeal and the plaintiff’s application for leave to appeal to the Court of Final Appeal was rejected by both the Court of Appeal and the Court of Final Appeal.

3.I regret to say that this third action is, as pointed out by the learned Master, based upon the same matters as those advanced in the previous actions. In particular, the central complaint of the plaintiff is that the appraisal reports on him were adversely adjusted without his knowledge and as a result of which his career prospects were damaged.  Allegedly, he only got to know about the contents of those reports from May 2003 to April 2004 (see para 2(a)(4) of Statement of Claim). 

4.It is trite law that a litigant is not entitled to institute multiple actions based on the same matters.  I can see nothing new in this third action.  This court, as well as the learned Master, is bound by the Court of Appeal Judgment in the second action.  This action is plainly an abuse of process.  I should add that these matters are stale.  The plaintiff knew about the appraisal reports some nine years ago.  I do not see how he can overcome the time-bar issue.  In other words, there is no substantive merits in his action. 

5.With respect, I agree with the Decision and, as I am entitled to do so (see Hong Kong Civil Procedure 2013, vol 1, para 58/1/2), it is adopted as part of the judgment of this court. 

6.In the course of the hearing of this appeal, the plaintiff was at pains to maintain that the current action is a fresh action based upon a catalogue of wrongdoings allegedly committed by the Commissioner for Census and Statistics (“Commissioner”).  In particular, it is alleged that the failure of his two prior actions was attributable to the false evidence advanced by the Commissioner, and that the plaintiff is no longer concerned about the damage to his promotion prospects when he was working for the Department.  Instead, the damage for which he seeks compensation in this action is the costs which he has to bear as a result of having the previous actions struck out.

7.First of all, I am unconvinced that the complaints embodied in the Statement of Claim are divorced from the plaintiff’s grievances concerning the contents of his appraisal reports and the damage to his career prospects.  It appears to me that the “fresh action” argument is deployed to try to overcome the problem of launching multiple actions.  However, I see no substance in the argument.

8.Secondly, I have been taken by the plaintiff to para 3(a) of the Statement of Claim which contains a list of serious allegations against the Commissioner.  In respect of any allegation of a general nature, eg, supplying false statistical data to the public, I do not see how it is actionable by the plaintiff.  There may be other avenues for such complaints.  Further, the damage now alleged by the plaintiff did not arise from such complaints.

9.Thirdly, in respect of the allegation of false evidence, I agree with Ms Chang, who appeared for the defendants, that it is no more than a disagreement by the plaintiff with the evidence previously filed by the Commissioner in support of his strike out applications.  The plaintiff had the opportunity to file evidence to contradict those advanced by the Commissioner in the previous proceedings.  Further, I am unconvinced that the contentious evidence had any significant bearing on the strike out decisions previously made by the court. 

10.Accordingly, this appeal is dismissed with costs to the defendants. 

The plaintiff appeared in person

Ms M L Chang, GC, of the Department of Justice, for the defendants

Please refer to CACV87/2013 for the relevant appeal(s) to the Court of Appeal.