Leung Kwai Ling and Another v. Ma Ho Fai and Another

HCA 1225/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1225 OF 2013

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REASONS FOR DECISION

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1.There are 4 Summonses before the court (“Summonses”). Although the Summonses were issued by the first-named plaintiff (“Ms Leung”), the second-named plaintiff (Ms Leung’s husband, Mr Lee Yiu Kei (“Lee”)) has filed an affidavit dated 16 July 2014 and skeleton submissions dated 23 July 2014 to join and support the applications. The Summonses are dated 11, 14, 16 and 21 July 2014 and will be referred to individually as the “1^st Summons”, “2^nd Summons”, and so on.

2.The Summonses are quite difficult to read and not at all easy to understand.  The bodies of those documents were handwritten by Ms Leung in very dense and small writing. There is a good deal of repetition, amendments and insertions in what has been written thereby adding to the difficulty in reading the Summonses.  The same difficulties apply to the many affidavits which have been filed by Ms Leung in support of the Summonses. 

3.In contrast, the 2 documents emanating from Lee (see para 1 above) are typed and easy to read.   

4.At the end of the hearing on 24 July 2014 (“Hearing”), I dismissed all the Summonses and awarded costs against both plaintiffs, which were summarily assessed at HK$16,000.  These are my reasons for doing so.

1^st Summons

5.Under the 1^st Summons, it appears that the plaintiffs are seeking :

(a) “An injunction order against the defendants (Ds) to stop Ds’ summons of 13.5.2014 for Ds’ request for strike out and RAO[1] orders, as Ds fail to reply interrogatories from Leung dated 30.5.2014 before deadline, on affirmation from Ds for Ds’ summons, order under RHC Order 26 r 6(1)”;

(b) “That the strike out and RAO hearing for 29.7.2014 be vacated”;

(c) “That an injunction order be issued against Ds to stop Ds’ summons of 6.6.2014 for Ds’ request for orders to withdraw Leung’s interrogatories on ground under RHC O18 r 19 (1 a, b, c + d) that Ds’ summons is frivolous, vexatious, abuse of court process and embarrass, delay, prejudice fair trial and no reasonable cause for Ds’ summons”.

2^nd Summons

6.Under the 2^nd Summons, the plaintiffs are seeking :

(a) “That summary judgment be entered against Ds under RHC Order 14 for all amounts claimed by plaintiffs on the grounds that Ds (no defence) as Ds failed to file list of documents under O 24 of RHC, and failed to file time tabling questionnaires under RHC O 25 before deadline of 14 days after close of pleadings … and as Ds failed to serve replies to Leung’s interrogatories of 30.5.2014 before deadline of 28 days, under RHC O 26 r 1 and on ground that Ds have no valid defence and as Ds failed to provide certified true copies of documents to Leung before deadline of 7 days under RHC O 24 r 11A as requested in Leung’s notice in May 2014”;

(b) “That Ds pay all amounts of claims to plaintiffs immediately”;

(c) “That the defence from Ds be struck out under RHC O14”;

(d) “That all of Ds’ summonses be dismissed”.

3^rd Summons

7.Under the 3^rd Summons, the plaintiffs are seeking :

(a) “To set aside the orders of Master Au-Yeung given on 11.7.2014 refusing to give order for final judgment against Ds under RHC O 26 r 6(1), as requested by Leung in Leung’s summons of 23.6.2014”;

(b) “That final judgment be entered against Ds for all amounts claimed by plaintiffs, under O 26 r 6(1) for failure of Ds to serve replies to interrogatories from Leung dated 30.5.2014, before deadline of 28 days from date of service”;

(c) “That Ds pay all amounts of claims to plaintiffs immediately”;

(d) “To set aside all orders of Master M Wong given on 13.6 and 30.6 of 2014 refusing to dismiss Ds’ summons of 6.6.2014 and refusing to give order for ordered interrogatories, as requested in Leung’s 2 summonses in June 2014”;

(e) “To dismiss D’s summons of 6.6.2014 and to give order for ordered interrogatories as requested in Leung’s 2 summonses in June 2014 under RHC O 26 r 6(1)”;

(f) “To set aside all other orders of Master Au-Yeung given at 19.5 and 11.7 of 2014 hearings”;

(g) “To give all other orders requested in all of my summonses for 19.5 and 11.07 of 2014 hearings including, and to dismiss Ds’ summons of 13.5.2014”;

(h) “To apply laws of equity to dismiss D’s summons of 13.5 and 6.6 of 2014 on ground of injustice to me and Lee”.

4^th Summons

8.Under this Summons, the plaintiffs are seeking :

(a) “To strike out the List of Documents filed by the defendants (“List”).  As for the alleged grounds for the strike out, apart from making the usual allegations of frivolity, vexatiousness, etc, it is stated that the List is “very incomplete and wrong”;

(b) “If summary judgment order not given, to restore my previous summons of 7.7.14 for the prelim issues and points of law to be decided first …”;

(c) The filing of certain “trustees accounts” (“Accounts”) by defendants (see below).

Background of the dispute[2]

9.The plaintiffs started this action against the defendants by a Writ dated 5 July 2013.  The Writ was amended and served together with the Statement of Claim on the defendants nearly a year later on 27 February 2014.

10.The defendants are partners of Messrs Woo, Kwan, Lee & Lo.  They were appointed as trustees under an order of the Lands Tribunal in 2005 for the compulsory sale of a building called Lai Sing Court (“Building”) situated at Tai Hang (pursuant to the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“Ordinance”)) in which the plaintiffs co-owned a unit.

11.One of the duties of the defendants under the Ordinance was to distribute the sale proceeds after the public auction of the Building in accordance with the pro-rata share of the owners.  The plaintiffs, together with the majority of the owners of the Building, entered into a development agreement (“Agreement”) with Hong Kong Land (“HKL”) whereby the owners agreed to forgo their right to the sale proceeds and allow HKL to keep them in return for the allotment of a new residential unit, after HKL had redeveloped the Building.  The Agreement was prepared and executed by solicitors representing the owners and HKL and was duly registered in the Land Registry as a public record.

12.The owners, including the plaintiffs, who had made the Agreement with HKL invariably gave specific instructions to the defendants to release their share of the sale proceeds to the solicitors for HKL.  Further, they had executed a confirmation (“Confirmation”) in the presence of their solicitors directing the defendants to release the sale proceeds to Hong Kong Glory (the developer, which was a subsidiary of HKL).

13.The defendants acted upon the instructions of the plaintiffs and released the sale proceeds accordingly.

14.The re-development had been completed whereby a new luxurious residential building called “Serenade” was put up.  However, Ms Leung has refused to take over the new unit (I assume this applies also to Lee).  Instead, Ms Leung started numerous legal actions against HKL, Hong Kong Glory, her own solicitors and the defendants as if the Agreement had never been made.  All of her actions against HKL and Hong Kong Glory had been dismissed and a restrictive order was granted against her as a vexatious litigant in 2013.   

15.In an earlier action, HCA 1567 of 2011, Ms Leung, acting alone, sued the defendants in respect of these matters.  She claimed that they should have released the sale proceeds to her and Lee.  She did not mention that she had made the Agreement with HKL and that she had signed the Confirmation directing the defendants to release the sale proceeds to Hong Kong Glory. 

16.It appears from the skeleton submissions filed by Ms Leung and the oral submissions made by her at the Hearing that the gravamen of the plaintiffs’ complaint is that the sale proceeds should have been paid to them instead of Hong Kong Glory.  I do not understand why that should be so in light of the Agreement, but this is not a matter which concerns the court for the purpose of determining the Summonses.  I should also mention that it is alleged by the plaintiffs that the Confirmation was obtained from them under misrepresentation.  In that regard, serious allegations have been made against a number of solicitors.

17.Ms Leung’s claim in HCA 1567 of 2011 was struck out by a Master and her appeal against that decision was dismissed by Deputy High Court Judge Lok on 14 August 2012.

The present proceedings

18.It was against the above background that after the conclusion of the earlier action, Ms Leung, this time joining Lee, started the present action relying on the same cause of action.

19.By Summons dated 9 April 2014, Ms Leung took out an application for summary judgment against the defendants on the ground that there is “no valid defence”.  This Summons was returnable before Master Au-Yeung on 19 May 2014.  The defendants immediately took out a Summons dated 13 May 2014 to strike out the Statement of Claim, dismiss this action and apply for a restrictive proceedings and application order.  Both Summonses were heard at the call-over hearing on 19 May 2014.  The defendants’ striking out Summons was adjourned for argument on 29 July 2014 before Deputy High Court Judge Lok.

20.Ms Leung has thereafter issued, including the Summons for summary judgment, no less than 21 applications in these proceedings (including a Notice of Appeal and the Summonses).

21.In addition to the 21 applications, Ms Leung has served a set of Interrogatories (“Interrogatories”) without order on the defendants on 30 May 2014.  In response, the defendants issued a Summons dated 6 June 2014 to have the Interrogatories withdrawn or set aside.  That application went before Master M Wong on 13 June 2014, and was adjourned sine die to be restored after the defendants’ striking out application has been disposed of.

Analysis

22.First of all, there is no doubt that Ms Leung is a person of some sophistication.  That is clear from the material she has produced in these proceedings.  Further, it is equally clear that Ms Leung is determined to cause as much trouble as possible to the defendants in these proceedings.  That is borne out by the huge number of applications taken out by her within a 4-month period.  Many of the applications are duplicitous in that they cover the same complaint(s).  I agree with Mr Shum, who appeared for the defendants, that Ms Leung has demonstrated by her actions that she is a vexatious litigant. 

23.Mr Shum submitted that the Summonses overlap with the subject matters of some of the earlier Summonses issued by Madam Leung.  In particular, I have been referred to Ms Leung’s Summonses filed on 4 June 2014, 23 June 2013, 30 June 2013 and 14 July 2013.  I agree.

24.Further, in light of the imminent hearing to determine the strike out of the Statement of Claim and the dismissal this action (see para 19 above), it cannot be right for the plaintiffs to continue to put the defendant to the trouble and expense in dealing with her applications.  I have little doubt that the Summonses constitute an abuse of the process of this court, and for that reason alone they should be dismissed.

25.Putting aside the issue of abuse of process, the Summonses concern essentially 3 matters, namely, the Interrogatories, the List and the Accounts.  In respect of any challenge to any order made by Master Au-Yeung or Master M Wong, that should be made by way of an appeal and not by Summons.

26.As indicated in para 21 above, the Interrogatories have been dealt with by Master M Wong.  With respect, it is plainly sensible to have those matters determined after the disposal of the strike out application. 

27.As regards the List, there are established procedures to challenge inadequate discovery made by a litigant.  Striking out a claim or entering judgment as a consequence of inadequate discovery would only be considered in extreme cases.  I do not begin to see any justification for such an order.  Further, in the circumstances of this case, any complaint about the adequacy of the List should only be considered after the disposal of the defendants’ strike out application.

28.In respect of the Accounts, it has not been demonstrated why they are relevant to these proceedings.  It is accepted by Ms Leung that the plaintiffs’ complaint is that they were not paid the proceeds of sale.  It is common ground that such proceeds were paid to Hong Kong Glory instead.  It is not suggested by Ms Leung that she does not know the quantum of such proceeds.

29.I do not think it necessary to deal with each and every part of the Summonses.  I find no merits in them.

Conclusions

30.In the premises, the Summonses were dismissed with costs.

31.Although I was minded to award costs against the plaintiffs on indemnity basis given the abuse of process, the costs incurred by the defendants were modestly quantified by Mr Shum at 4 hours and HK$4,000 per hour.  I would have allowed the entire claim even on party and party assessment. 

32.Last but not least, I am grateful to Mr Shum for his assistance in these matters. 

The 1^st named plaintiff appeared in person

Mr Shum Cheuk Pan, of Woo, Kwan, Lee & Lo, for the defendants