MAKHSSIAN TRAJAN VAHE v. MAYER BROWN JSM, MAYER BROWN INTERNATIONAL LLP alias MAYER BROWN, ASSOSIATE SIMON AU MING, DAVID MCKELLAR SUED AS "AVOCATE SOLICITOR, DAVID MCKELLAR"

CAMP 161/2024, [2025] HKCA 337

On An Intended Appeal From [2020] HKCFI 3168 &

[2022] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 161 OF 2024

(ON AN INTENDED APPEAL FROM HCA NO 934 OF 2020)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Plaintiff’s application by summons filed on 23 August 2024 (“the Summons”)  seeking leave to appeal out of time against the judgment of Coleman J (“the Judge”)  dated 31 December 2020 (“the Judgment”), whereby it was ordered that the Plaintiff’s claims in this action against the Defendants be struck out on the grounds, inter alia, that (i)  they were frivolous and vexatious, and/or (ii)  they were otherwise an abuse of the process of the court, and that the Plaintiff’s action against them be dismissed.

2.  As directed by the Registrar of Civil Appeals dated 13 September 2024, the Summons is to be treated as an application for an extension of time to appeal against the Judgment.  Having considered the papers and the submissions before us, we consider that it is appropriate to deal with the present application on paper without an oral hearing pursuant to Order 59, rule 14A(1)  of the Rules of the High Court, Cap 4A.  In this judgment, unless the context indicates otherwise, references to orders and rules shall be to the Rules of the High Court.  

BRIEF BACKGROUND

3.  The relevant background facts of this case have been fully set out in the Judgment and will not be repeated here.

4.  This action was commenced by the Plaintiff against the Defendants by writ dated 10 June 2020.  In the Statement of Claim endorsed on the writ, the Plaintiff claims damages in the sum of HK$50 million “and any other damages to be assessed” against the Defendants for defamation/libel in respect of 2 statements, namely:

(1)  a statement contained in a letter dated 29 September 2016 (“the Refusal Letter”)  from the Food and Environmental Hygiene Department (“FEHD”)  to Hong Kong Cyberport Management Co Ltd (“HKCMCL”), the owner of Cyberport, rejecting an application made to the FEHD for a Temporary Public Place of Entertainment Licence (“the Licence”)  in respect of a proposed function of the Plaintiff’s company (Musicasia Entertainment Hong Kong Ltd)  called “White Party Hong Kong 11th Anniversary” because of an objection raised by the Hong Kong Police Force - in that letter, FEHD referred to an undated note (“the Note”)  from the Police which stated that the Police objected to the proposed function in the strongest possible terms on, inter alia, the ground that “[t]he potential for illegal activity (such as substance abuse & dangerous drugs etc.)  at this event is notable” (“the First Statement”); and

(2)  an order made by Master K W Wong in HCA 43/2017, a related action brought by the Plaintiff against HKCMCL, on 28 May 2018 (“the Order”)  that “[t]he Amended Statement of Claim dated 14 December 2017 be struck out on the grounds that it discloses no reasonable cause of action and is frivolous or vexatious” (“the Second Statement”).

5.  As noted by the Judge at §4(2)  of the Judgment, the 2^nd named Defendant (Mayer Brown International LLP)  had not been served with the proceedings below, and was not represented.

6.  By a summons dated 31 July 2020, the 1^st, 3^rd and 4^th named Defendants applied to strike out the Plaintiff’s claims in the action on the grounds that they disclosed no reasonable cause of action, were scandalous, frivolous and vexatious, or were otherwise an abuse of the court’s process.

7.  On 30 December 2020, the strike out application was heard by the Judge.  At that hearing, Mr Withington of Howse Williams appeared for the 1^st, 3^rd and 4^th named Defendants, and the Plaintiff appeared in person.  On 31 December 2020, the Judge handed down the Judgment allowing the 1^st, 3^rd and 4^th named Defendants’ application, and struck out the Plaintiff’s claims against all Defendants.  The Judge did so for the following reasons:

(1)  Neither the First nor the Second Statement was made by any of the Defendants.  There was no credible evidence to suggest otherwise[1].

(2)  In respect of the First Statement, none of the Defendants was involved in the application for the License in 2016.  The Plaintiff’s assertion about the Defendants’ involvement in the application process was wholly without basis, and bound to fail.  Similarly, the Plaintiff’s suggestion that the Defendants “pre-meditated” the Note by providing false information to the Police was devoid of merit, and also bound to fail[2].

(3)  In respect of the Second Statement, there was no basis for the Plaintiff to describe the Order as being “false”, because (i)  the Order merely recorded the Master’s decision for striking out the Plaintiff’s claim against HKCMCL in HCA 43/2017 for the reasons stated therein, (ii)  the Master’s decision and the Order were subsequently upheld by DHCJ K Yeung (as he then was), and (iii)  the words “frivolous” and “vexatious” had specific meanings in the legal context, and they referred to the Plaintiff’s claims in the action, but not to the Plaintiff personally.  In any event, the maker of the Order was protected by absolute privilege insofar as defamation/libel was concerned[3].

(4)  There was force in Mr Withington’s submission that the Plaintiff’s claims also fell to be struck out as an abuse of process under the doctrine of res judicata in the “wider sense”.  This action was in substance about the cancellation of the White Party event.  It appeared that the Plaintiff was in effect seeking to re-litigate matters that had already been determined in previous proceedings[4].

(5)  As there was simply no allegation properly made against the 2^nd named Defendant in the Statement of Claim, the Plaintiff’s claim against it should be struck out of the court’s own motion[5].

(6)  Joining the 3^rd named Defendant as a defendant in the proceedings merely because the Plaintiff had spoken to him about his concerns and the 3^rd named Defendant had denied that any of the documents were forged or any of the other defendants had engaged in any wrongdoing was a plain abuse of the court’s process[6].  

8.  The Plaintiff applied to the Court of Appeal for leave to appeal against the Judgment on 18 January 2021.  That application was struck out by the Court of Appeal on 11 March 2021 on the ground that he did not need leave to appeal, but would have had a right to appeal (had he lodged an appeal within time).

9.  Subsequently, in about December 2021, the Plaintiff made an application to the Judge for an extension of time to appeal against the Judgment.  His explanation for the delay in lodging the appeal was that he had been incarcerated from March 2021 to November 2021.  The Judge was not impressed by this explanation, and found no proper basis to grant an extension of time for the Plaintiff to appeal.  The Judge dismissed the Plaintiff’s application on 17 January 2022 ([2022] HKCFI 385).

10.  Thereafter, the Plaintiff somehow managed to obtain another hearing before Recorder Rachel Lam, SC (“the Recorder”)  and sought some interim relief against the Defendants.  The Plaintiff’s application was heard by the Recorder on 16 September 2022, and dismissed on 30 September 2022 because there was no merit in any of the Plaintiff’s complaints ([2022] HKCFI 2897)  (“the Recorder’s Decision”).

THE PRESENT APPLICATION

11.  By the Summons taken out on 23 August 2024, the Plaintiff seeks leave from the Court of Appeal to appeal against the Judgment out of time.  No draft notice of appeal was provided.  In the Summons, the Plaintiff states that the intended grounds of appeal have been set out in two affidavits, both filed on 23 August 2024 (“P’s 1^st Affidavit” and “P’s 2^nd Affidavit” respectively).  On the same day, the Plaintiff also lodged three documents in support of the present application, namely, (i)  a memorandum of argument, (ii)  a skeleton argument (“the Skeleton Argument”), and (iii)  a document referred to by the Plaintiff as “the Appellant Damages”.

12.  On 12 September 2024, the 1^st, 3^rd and 4^th named Defendants lodged their skeleton argument in opposition to the present application, contending that the Plaintiff has not put forward any arguable grounds for challenging the Judgment, or any proper explanation for his delay in seeking leave to appeal out of time from the Court of Appeal.

13.  On 26 September 2024, the Plaintiff lodged his skeleton argument in reply.

14.  On 31 December 2024, the Plaintiff lodged a document with the court concerning the change of name of the 1^st named Defendant, and alleged that Mr Withington had failed to inform the court of the same pursuant to Order 67, rule 1. The Plaintiff’s complaint is misconceived.  Order 67, rule 1 relating to notice of change of solicitor is not applicable to the change of name of a party.  Howse Williams have throughout remained the solicitors on record for the 1^st, 3^rd and 4^th named Defendants in these proceedings.

DISCUSSION

15.  As earlier mentioned, pursuant to the directions of the Registrar of Civil Appeals dated 13 September 2024, the Summons shall be treated as an application for an extension of time to appeal against the Judgment.  As a preliminary observation, the Plaintiff’s failure to produce a proper draft notice of appeal or proper intended grounds of appeal in support of his application, relying instead on his disjointed and largely unintelligible affidavits, is unacceptable.  In any application for extension of time to appeal or leave to appeal, the applicant is required to provide succinct intended grounds of appeal (whether in a draft notice of appeal or otherwise)  against the relevant judgment or order for the Court’s consideration.  The Court cannot be expected or required to plough through affidavit(s)  or submission(s)  filed by the applicant to discover his/her intended ground(s)  of appeal.  In appropriate cases, the Court may direct the applicant to provide proper intended grounds of appeal within a stated period of time, failing which the application for extension of time to appeal or leave to appeal will be dismissed without further consideration.  In the present case, in view of the Plaintiff’s delay in this matter and in order to save time and costs, we shall deal with the Summons substantively without requiring the Plaintiff to produce proper intended grounds of appeal.

16.  The principles for granting an extension of time to appeal are well settled, and will not be repeated here.  Where the intended appeal has no merit and no reasonable prospect of success, generally no extension of time to appeal should be granted because it would be futile to do so.

17.  It is plain that the Plaintiff has been guilty of very substantial delay in seeking to appeal against the Judgment.  We do not see any good or reasonable explanation for the Plaintiff’s delay.

18.  More importantly, the Plaintiff’s claims against the Defendants for defamation/libel are doomed to fail for the reasons given by the Judge.  Neither statement complained of by the Plaintiff was made by any of the Defendants, or their employees or agents.  The Second Statement was an order of the court and cannot give rise to any cause of action in defamation/libel.  The Plaintiff’s claim in respect of the Second Statement is also a collateral attack on the court’s previous order to strike out his claim in HCA 43/2017, and constitutes an abuse of the court’s process.  In our view, the Judge was correct to strike out the Plaintiff’s claims against the Defendants and dismiss the Plaintiff’s action against them.  The contrary is not reasonably arguable, and the intended appeal has no reasonable or real prospect of success.  It follows that the Summons must be dismissed.

19.  We shall now briefly deal with a few points raised by the Plaintiff in the documents filed by him in support of the Summons. 

20.  In his 1^st and 2^nd Affidavits, the Plaintiff raises the following complaints.

21.  First, the Plaintiff complains that the Defendants failed to instruct a barrister to appear on their behalf in the strike out application below.  The 1^st, 3^rd and 4^th named Defendants instructed Mr Withington to handle their case, contrary to Practice Directions 14.1 (Rights of Audience Before a Master)  and 21.1 (Solicitors – Appearance in Open Court)  (“PD 14.1” and “PD 21.1” respectively). Howse Williams and/or Mr Withington unlawfully acted in the capacity of a barrister, or were not qualified to act as a solicitor, committing offences under Sections 44 and/or 45 the Legal Practitioners Ordinance, Cap 159 (“LPO”)[7]. 

22.  This complaint is based on a misunderstanding of the court’s practice relating to rights of audience, and the relevant practice directions or legal provisions.  Generally, solicitors have rights of audience in proceedings before a judge in chambers in the Court of First Instance.  The Plaintiff’s reliance on PD 14.1, PD 21.1 or the LPO in support of his complaint is misplaced:

(1)  PD 14.1 concerns the rights of audience of, amongst others, solicitors in proceedings before a master or taxing master, and is inapplicable to the present case where the hearing was before a judge in chambers.

(2)  PD 21.1 at §1 states that “[i]n addition to the cases in which solicitors already have rights of audience in the Court of First Instance” (emphasis added), a solicitor may appear in specified proceedings in the Court of First Instance provided certain conditions are met.  It has no impact on situations where solicitors already have rights of audience.

(3)  Sections 44 or 45 of the LPO have no application in the present case.  Nothing before us indicates that Howse Williams or Mr Withington acted, or held themselves or himself out, as a barrister in the proceedings below.

(4)  The Plaintiff has also sought to rely on some email communications between him and the Solicitors Regulation Authority (“SRA”)  in the UK to show that although Mr Withington was a SRA-regulated solicitor, he did not hold any practising certificate in the UK.  We do not see how this fact has any impact on Mr Withington’s right to appear as a solicitor for the 1^st, 3^rd and 4^th named Defendants at the hearing before the Judge in Hong Kong on 30 December 2020.

23.  Second, the Plaintiff argues that the Defendants deviated from the correct procedural rules and failed to comply with orders of the court in conducting their case in the proceedings below, in that (i)  they failed to file a defence to the Plaintiff’s claims under Order 2, rule 3 and despite being ordered to do so[8], (ii)  they filed their Acknowledgement of Service on 23 June 2020 without ticking any box to indicate whether or not they intended to make an admission of the Plaintiff’s claims for a liquidated amount of money under Order 13A, rule 4, and also failed to comply with the “rule” that an Acknowledgment of Service must be signed by a defendant or his solicitor, but not a law firm[9], (iii)  they filed evidence to support their strike out application in this action contrary to the “rule” that no evidence shall be admissible on an application to strike out if it is made on the ground of no reasonable cause of action being disclosed in the claim[10], and (iv)  they fabricated the Order as it was not signed by the Master or his clerk[11].  The Plaintiff also complains that the Defendants failed to “respect … the defamation Ordinance rules” [sic][12].

24.  The above arguments of the Plaintiff are all based on his misunderstanding of the relevant procedural rules.  None of the alleged procedural irregularities has any validity, or can constitute any, or any valid, basis to interfere with the Judgment:  

(1)  Point (i)  has already been dealt with by the Recorder, correctly in our view (see §6(3)  of the Recorder’s Decision).  Since the 1^st, 3^rd and 4^th named Defendants were applying to strike out the Plaintiff’s claims, it was understandable that they did not wish to file any defence prior to the determination of the strike out application.  By the order of Master Dick Ho dated 20 August 2020, the time for the 1^st, 3^rd and 4^th named Defendants to file and serve their defence was extended until 28 days after the final determination of their summons filed on 31 July 2020 to strike out the Plaintiff’s claims.

(2)  In respect of Point (ii), the Acknowledgement of Service filed by Howse Williams as solicitors for the 1^st, 3^rd and 4^th named Defendants on 23 June 2020 clearly stated that the 1^st, 3^rd and 4^th named Defendants intended to contest the proceedings.  Although Howse Williams did not check either box in item 3 on the Acknowledgement of Service to indicate whether the 1^st, 3^rd and 4^th named Defendants intended to make any admission, paragraph 3 of the Directions for Acknowledgment of Service states as follows: “If the only remedy that the Plaintiff is seeking is the payment of a liquidated amount of money or the payment of an unliquidated amount of money, you may admit the Plaintiff’s claim in whole or in part by completing Form No. 16 or 16C (as the case may require)  accompanying the Writ of Summons” [emphasis added].  A defendant may, but is not required to, make an admission.  In any event, the failure of a defendant to state whether he intends to make an admission in an Acknowledgment of Service does not invalidate the acknowledgement. 

(3)  There is no basis for the Plaintiff’s argument that an Acknowledgment of Service cannot be signed by a law firm on behalf of the defendant(s), or his contention that the Order, which on its face bore the seal of the High Court, had been fabricated because it had not been signed by a master or his clerk.

(4)  As for his complaint about the 1^st, 3^rd and 4^th named Defendants’ filing of evidence in their strike out application, it is directed at §61 of the Judgment where the Judge stated that “[w]here the only ground of striking out put forward is that there is no reasonable cause of action, no affidavit evidence is admissible” [emphasis added].  In the present case, the 1^st, 3^rd and 4^th named Defendants also relied on the grounds that the Plaintiff’s claims were frivolous or vexatious, or otherwise an abuse of the process of the court.  The 1^st, 3^rd and 4^th named Defendants were entitled to file evidence in support of these grounds to strike out the Plaintiff’s claims.  

(5)  Lastly, the Plaintiff’s complaint about the Defendants’ non-compliance with “rules” relating to defamation actions is a bare allegation without particulars, and has no substance.

25.  Third, the Plaintiff complains that the Judge erred in accepting affidavit evidence filed by the Defendants which contained information or documents that were not properly obtained, contradictory to the Defendants’ own case, or otherwise false or misleading[13].  In particular, the Plaintiff argues that the Judge erred in failing to consider, or properly consider, various alleged “admissions” made by the 3^rd named Defendant in his affidavits (“D3’s 1^st Affidavits” and “D3’s 2^nd Affidavits” respectively)  filed in support of the strike out application in the action, and those admissions, says the Plaintiff, substantiated or supported the Plaintiff’s allegations of forgery:

(1)  that the First and Second Statements were defamatory of the Plaintiff[14];

(2)  that there were serious allegations made by the Plaintiff against the Defendants of defamatory remarks of him contained in the First and Second Statements[15];

(3)  that the Refusal Letter and the Order contained “discrepancies”[16];

(4)  that the 3^rd named Defendant was “familiar with the procedure by virtue of having advised on [applications for Temporary Public Place of Entertainment Licences] previously”[17]; and

(5)  that from the 3^rd named Defendant’s own understanding, the Licensing Authority (IE FEHD)  might not be able to issue the Confirmation Letter in less than 6 months to a year because the request by Howse Williams had to go through the legal department of the Licensing Authority[18] (but the Confirmation Letter was made available the very next month after D3’s 2^nd Affidavit).

26.  The short answer is that nowhere in any of the 3^rd named Defendant’s Affidavits did the 3^rd named Defendant make any admissions which could be regarded as being supportive of the Plaintiff’s allegations of forgery.  In any event, the Plaintiff’s claims against the Defendants are for defamation/libel, but not forgery:

(1)  In respect of point (1), the 3^rd named Defendant was merely repeating or paraphrasing the Plaintiff’s allegations in respect of the First or Second Statements.

(2)  In respect of point (2), the 3^rd named Defendant pointed out that while the Plaintiff’s allegations about the First and Second Statements might appearto be serious in nature, those allegations were misconceived.  The 3^rd named Defendant never made any admission that the First and Second Statements were defamatory of the Plaintiff.

(3)  In respect of point (3), the 3^rd named Defendant did not say or suggest that the Refusal Letter and the Order contained any discrepancies.  Rather, what the 3^rd named Defendant said was that “[o]ther than references to supposed discrepancies in these documents, he [ie the Plaintiff] provides no factual basis for his allegation that they are forged”.

(4)  In respect of point (4), the 3^rd named Defendant said that he was familiar with the procedure relating to applications for Temporary Public Place of Entertainment Licences because he had previously advised on such matters, but never suggested that he (or any of the Defendants)  were involved in the application for the Licence in the present case.

(5)  In respect of point (5), the 3^rd named Defendant said that he understood from Howse Williams, who had written to FEHD for a confirmation about the authenticity of the Refusal Letter, that FEHD might not be able to provide such confirmation in less than 6 months to a year because the request had to go through FEHD’s legal department.  The mere fact that FEHD eventually provided the confirmation earlier than expected cannot be regarded as supporting the Plaintiff’s allegations of forgery.

27.  It is not necessary to deal with other allegations of forgeries made by the Plaintiff because they are all completely without reasonable or proper foundation or basis. 

28.  Fourth, the Plaintiff complains that the Judge was biased and gave preferential treatment to the Defendants and/or Howse Williams, because the Judge used to “collaborate” with them by receiving instructions from them to act as counsel prior to becoming a judge, and by acting as a judge in various court proceedings in which they were the legal representatives for the parties involved[19]. This complaint has no validity.  The mere fact that the Judge might previously have been instructed by the Defendants and/or Howse Williams to act in a professional capacity while he was in private practice as a barrister, and/or heard various matters in proceedings in which the Defendants and/or Howse Williams were the legal representatives for the parties involved, cannot give rise to any allegation of bias (real or apparent)  on the part to the Judge.  We are also satisfied that the Judge’s dealing with the strike out application before him was fair throughout. 

29.  In passing, we note that in the documents filed or lodged by the Plaintiff, he also seeks the following remedies or relief from this Court:

(1)  damages from the Defendants and Howse Williams in the amount of US$60 billion as a result of the serious injuries done to him “monetary, socially, emotionally, mentally, by mean of tortious act, breach of contract … and so many other type or wrongful conduct”[20] (sic.).  In this regard, the Plaintiff appears to have raised various new causes of actions in professional negligence, breach of contract, conspiracy, and infringement of intellectual property rights against the Defendants[21];

(2)  a freezing injunction in respect of the assets of the Defendants and Howse Williams in aid of his claim for damages[22];

(3)  an order that the Bankruptcy Order against him be set aside, on the ground that the petition documents in the Bankruptcy Proceedings were not properly prepared or served on the Plaintiff, and the Bankruptcy Order was made in his absence.  The Plaintiff also contends that the disputes arising from two costs orders in previous actions, upon which the Bankruptcy Proceedings were commenced, should be resolved in the Small Claims Tribunal instead[23]; and

(4)  several costs orders in the previous actions should be set aside or held unenforceable against the Plaintiff because the amounts involved were excessive and unreasonable[24].

30.  The Plaintiff is not entitled to seek these remedies or relief in the present application.  They fall outside the scope of his Statement of Claim, which has been struck out, or the Summons, and are without foundation and wholly unmeritorious in any event.

DISPOSITION

31.  The Plaintiff’s Summons is dismissed with costs to the 1^st, 3^rd and 4^th named Defendants, to be summarily assessed.  The costs claimed by the 1^st, 3^rd and 4^th named Defendants in their statement of costs dated 12 September 2024 come to HK$73,628.80.  The amount claimed appears to us to be reasonable, and is allowed in full.  The above costs order, including the assessment of costs, is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.  In the event that an application is made to vary the order nisi, the application shall be dealt with on paper.  The Court will give directions (including the filing of submissions)  for the further conduct of the application.  No affidavit or submissions may be filed in support of the application without the Court’s leave.