THE SECRETARY FOR JUSTICE v. YUEN OI YEE LISA

HCMP 1087/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1087 OF 2005

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DECISION  ON  COSTS

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1.  On 28 December 2005, I made a costs order nisi regarding the costs of these proceedings.  The Respondent [“Yuen”] took out a summons on the same day seeking variation of the costs order nisi.  Paragraph 2 of the summons sought a counterclaim.  Yuen did not proceed with paragraph 2 at the hearing before me and I shall confine to the question of costs.

2.  When the costs order nisi was made, the following matters were taken into account,

(a)   As explained in my Reasons for Decision of 9 January 2006, the Secretary for Justice had issued the Originating Summons and had all along prosecuted the same up to its withdrawal reasonably;

(b)   The statutory criteria under Section 27 of the High Court Ordinance were satisfied and there is a need for some measures to be in place to curb further vexatious litigation by Yuen;

(c)   The withdrawal of the Section 27 application was made in the midst of the court’s indication that an extensive RPO and RAO would be made;

(d)   The jurisprudence regarding the proper scope of a RPO is developing and it is understandable that the Secretary previously considered that a RPO restraining re-litigation might not afford sufficient protection against the vexatious litigation of Yuen;

(e)   Although Yuen had at one stage indicated her willingness to be subject to a Section 27 order (she asked for a ‘consent summons’ as per the Originating Summons in her summons of 26 September 2005), she had been wavering in her stance.  On 27 October 2005, Yuen issued another summons seeking to withdraw and cancel her application for consent summons.  At the hearing on 28 October 2005, Yuen indicated that she wanted to cancel her consent and sought to have the Section 27 proceedings struck out.  She also objected to the making of any RPO and RAO against her.  She contended that the Section 27 proceedings had caused her sufferings and she therefore counterclaimed for damages for her injury of feelings;

(f)   In any event, for reasons already given in my Reasons for Decision of 9 January 2006, the Section 27 proceedings cannot be disposed of by consent;

(g)   Yuen had made a number of unsuccessful and unmeritorious applications by summons in these proceedings;

(h)   At the hearing on 8 December 2005, Yuen indicated that she did not mind her actions other than those against Lai being stopped.  That eventually led to the RPO and RAO made on 28 December 2005;

(i)   The court has not heard full submissions from counsel regarding whether a Section 27 order is appropriate since the Secretary applied to withdraw the Section 27 proceedings after the court indicated its willingness to make an extensive RPO and RAO;

(j)   In the circumstances, the withdrawal of the Section 27 proceedings cannot be regarded as a reflection on the merits of the same.  At the most, it should be viewed as being overtaken by developments.

3.  I also took into account the request for adjournment by the Secretary on 28 October 2005.  Hence, the Secretary should not get all the costs in respect of that hearing.  On the other hand, Yuen’s strike out application was disposed of at that hearing.  Whilst Yuen might have some legitimate claim for costs of the adjournment, I considered that to be off set by the costs she might have to pay for the hearing of her unsuccessful striking out application.  On the whole, I considered it fair that there be no order as to costs for the hearing on 28 October.

4.  There is no reason why Yuen should not pay for the costs of her unsuccessful summonses.  I have already explained in my Reasons of 9 January 2006 why those summonses were unmeritorious.

5.  Taking all these circumstances into account, apart from the costs of the hearing of 28 October 2005 and the costs of the summonses, I regarded it just that Yuen should pay for the costs of these proceedings up to and including the hearing on 8 December 2005.  Although the court did not make a Section 27 order, the court did conclude that Yuen had been engaging in vexatious litigious activities which had to be curbed by appropriate measures.  Although the point has become academic in view of the direction given by Cheung J in HCA No. A96 of 2005 on 16 November 2005, I am of the view that even without such direction, this court can on its own volition, after giving a fair opportunity to Yuen to be heard on the matter, make a RPO and RAO in HCMP 1087 of 2005 even if it declines to make a Section 27 order.

6.  In deciding the question of costs, the court is entitled to take into account who in substance emerges as the winner in the proceedings as opposed to form.  By these proceedings, the Secretary sought measures to prevent future abuses of the court process.  In the end, a very extensive RPO and RAO was made, albeit in the context of another action heard at the same time.  In my view, it would be preposterous to regard Yuen as the winner of these proceedings.

7.  Yuen tried to persuade this court to vary the costs order nisi on the basis that the Secretary should not participate in her battle against Heath and its employees.  Yuen also contended that the Secretary unreasonably fixed the original hearing on her birthday.  She gave an explanation about her changes of position at different stages of the proceedings regarding the consent summons.  She regarded herself as victorious in these proceedings as the Secretary had to withdraw the Section 27 application.  She maintained that the Secretary was doing the bidding of the solicitors for Heath in mounting these proceedings against her.  She repeatedly asserted that these proceedings had caused her substantial sufferings.

8.  I am not impressed by these arguments.  The Secretary performs a very important constitutional role in launching Section 27 proceedings.  To safeguard the rule of law in Hong Kong, it is important that the process of the court is not abused.  When the statutory criteria have been satisfied, it implies that the litigant concerned has been seriously abusing the process of the court.  Upon knowledge of such a situation, the Secretary has a duty to make an appropriate application to curb future abuses.  In Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16 December 2005 and Choy Bing Wing v Chief Executive of HKSAR HCA 2351 of 2005, 23 December 2005, I endeavoured to explain why there is a public interest in forestalling vexatious civil litigations and why it is incorrect to regard the commencement and prosecution of civil actions as purely private affairs.  Yuen is therefore wrong in regarding that the Secretary had unjustifiably intervened into her battle with Heath and its employees.

9.  As I said in my Reasons for Decision of 9 January 2006, there is no basis for Yuen to assert that the Secretary was only acting at the behest of the solicitors for Heath in the commencement and prosecution of the Section 27 proceedings.  I have also explained above why it is erroneous to regard Yuen as the winner in these proceedings.

10.  It should also be apparent from my Reasons for Decision why Yuen had no basis to assert any claim for injury to feelings.  She obviously felt quite strongly about the stress of legal proceedings when she was at the receiving end of a legal process.  Yet she had no qualm in commencing one set of proceedings after another despite the dismissal of her earlier actions arising primarily from the same incident.  She has been writing series of vindictive letters to her adversaries and other people concerned tirelessly.  Given my conclusion as to the propriety and reasonableness of the Section 27 proceedings, I do not see how the anxiety suffered by Yuen in relation to the proceedings could have any bearing on the question of costs.  On proper analysis, these sufferings were the consequence of Yuen’s own vexatious litigious behaviour, without which the Secretary would not have commenced the Section 27 proceedings.

11.  Neither do I see any relevance that the date fixed for hearing was Yuen’s birthday.  The court will do justice according to the law without any regard to the birthday of any parties.

12.  As regards Yuen’s explanation for her wavering stance regarding “consent summons”, it is undeniable that she had changed her stance throughout these proceedings.  Since it is inappropriate to dispose of the matter by consent summons and given her wavering of stance, I do not regard her explanation as matter of great moment for deciding whether the costs order nisi should be made absolute.

13.  On the whole, having considered the submissions of the parties, I conclude that it is fair and just that the costs order nisi should be made absolute and I order accordingly.

14.  As regards the costs of the application for variation of the costs order nisi, Yuen asked for the costs of 10 January 2006.  The Secretary asked for costs of the hearing on 12 January 2006.  The matter was adjourned to 12 January 2006 for two reasons,

(a)     The representative of the Secretary was about half an hour late;

(b)    Yuen needed time to read my Reasons for Decision handed down on 9 January 2006.

15.  I do not accept Yuen’s submission that had the representative of the Secretary attended the hearing of 10 January 2006 punctually Yuen would be in a better position to complete her submissions on that date.  This court had offered to stand down the matter till 11:30 am on 10 January 2006 to enable Yuen to organize her submissions in view of my Reasons for Decision.  Yuen said she needed more time to digest the Reasons for Decision.  Hence, the matter was adjourned to 12 January 2006.

16.  In these circumstances, a fair order is that there be no order for costs regarding 10 January but Yuen has to pay the Secretary’s costs for the hearing on 12 January 2006.  Such costs, together with the costs awarded under the order nisi which has now been made absolute, shall be taxed if not agreed.