YUEN OI YEE LISA v. NGAI NGOK PANG AND ANOTHER

CAMP 295/2019 & CAMP 296/2019
(Heard together)

[2020] HKCA 721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 295 OF 2019

(ON AN INTENDED APPEAL FROM HCMP NO 2829 OF 2012)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 296 OF 2019

(ON AN INTENDED APPEAL FROM HCMP NO 2829 OF 2012)

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(Heard together)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the court):

1.  These two applications for leave to appeal arose from two applications made in the same action (HCMP 2829/2012). As they are inter-related, we will deal with the two applications together.

2.  Having considered the papers and submissions, we are of the view that it is appropriate to deal with the two applications on the basis of the written submissions without an oral hearing, pursuant to Order 59 rule 2A (5) of the Rules of the High Court, Cap. 4A.

HCMP 2829/2012

3.  The background leading to HCMP 2829/2012 and the relief sought in the originating summons had been set out in the judgment of G Lam J dated 5 June 2013[1]. Briefly stated, the plaintiff’s daughter was formerly the tenant of the defendants.  As a result of disputes over the tenancy, several proceedings involving the plaintiff’s daughter and the 1^st and 2^nd defendants had been commenced in the Lands Tribunal.  The plaintiff commenced HCMP 2829/2012 seeking to put a stop or to obtain redress for the way in which the defendants conducted the Lands Tribunal proceedings, which she considered to be wrongful.

4.  By his judgment of 5 June 2013, G Lam J dismissed the plaintiff’s originating summons and three other summonses with costs summarily assessed in the sum of $16,000.

5.  Prior to that, on 1 February 2013, Au-Yeung J (“the Judge”) made a restrictive application order (“RAO”) and a restricted proceedings order (“RPO”) against the plaintiff concerning matters relating to the proceedings in HCMP 2829/2012.[2]  In particular, the plaintiff is restrained from making any further application in these proceedings, whether before or after their conclusion, without leave of the Judge.

The plaintiff’s applications for leave under RAO

6.  On 21 and 29 October 2019, the plaintiff made two applications to the Judge under the RAO for leave to issue two summonses in HCMP 2829/2012 (respectively “the 1^st RAO Leave Application” and “the 2^nd RAO Leave Application”).

7.  The 1^st RAO Leave Application is for leave to issue a summons against the 1^st defendant as follows:

“Written application for leave to RPO against Mr. Ngai Ngok Pang due to:-

1. His letter addressed to Justice Queeny Au Yeung in HCMP2155/2018 on 10^th September 2019 (the content had nothing to do with HCMP2155/2018 but full of insulting statements against me) sent to me on 11^th September 2019 to United Christian Hospital (not to my address in HCMP2155/2018) different from his letter sent to me on 22^nd September 2018 with all toilet paper inside to United Christian Hospital when Justice Queeny Au Yeung had granted me leave to have commenced HCMP2155/2018 leading to CACV415/2019.

2. His letter addressed to the Registrar of Civil Appeals in CACV415/2019 on 30^th September 2019.”

8.  The 2^nd RAO Leave Application is for leave to issue a summons against the 1^st and 2^nd defendants as follows:

“Written application for leave to RPO against Mr. Ngai Ngok Pang & Miss Ngai Yu Ling Mony due to:-

Mr. Ngai Ngok Pang’s letter addressed to Justice Queeny Au Yeung in HCMP2155/2018 on 19^th September 2019 (the contents were largely irrelevant to the 2 Summonses filed and served on 12^th and 13^th September 2019 but indeed contained lies, abstract and false statements without oath under Section 36 of Cap. 200 subject to 2 years imprisonment once if convicted) copied to both my daughter and me too.”

9.  On 31 October 2019, the Judge refused both the 1^st and 2^nd RAO Leave Applications (respectively “the 1^st Decision” and “the 2^nd Decision”).  In respect of the 1^st RAO Leave Application, the Judge was of the view that no basis was shown for the application. 

10.  As for the 2^nd RAO Leave Application, the Judge gave the following reasons:

“By summons dated 21 October 2019 (“previous application”), Madam Yuen applied for an RPO against Ngai Ngok Pang under an RAO given n HCMP 2829/2012.

Whilst the previous application was pending, a similar application was made, this time both against Mr Ngai and Madam Ngai.

(1)  Insofar as the present application is against Ngai Ngok Pang, this is an abuse of process and the summons is thus dismissed.

(2)  Insofar as the present application is against Ngai Yu Ling, there was no “misconduct” disclosed against her and the application is in the wrong form.

The application is thus dismissed.”

Leave to appeal applications

11.  On 4 November 2019, the plaintiff made two applications to the Judge for leave to appeal the 1^st and 2^nd Decisions (respectively “the 1^st Leave to Appeal Application” and “the 2^nd Leave to Appeal Application”).  The 1^st Leave to Appeal Application states as follows:

“Written application for leave to appeal to the Court of Appeal against Justice Queeny Au Yeung’s decision made on 31^st October 2019 for my written application for leave to RPO against Mr. Ngai Ngok Pang due to his letter addressed to Justice Queeny Au Yeung in HCMP 2155/2018 on 10^th September 2019 copied to me maliciously to United Christian Hospital but not to my address as stated in HCMP 2155/2018, deserving to be considered by the 3 judges in Court of Appeal in CACV415/2019 (on appeal from HCMP 2155/2018) in one go.”

12.  The application was supported by an affirmation made by the plaintiff on the same day.  In the affirmation, the plaintiff listed the differences between “an Injunction Order made against [the 1^st defendant] in CACV415/2019 (on appeal from HCMP2155/2018)” and her “intended Injunction Order made against [the 1^st defendant] on 21 October 2019”, and stated that the other reliefs she sought on 21 October 2019 “had the same effect too once if the 3 judges in CACV415/2019 (on appeal from HCMP2155/2018) will pass the forgery of [the 1^st defendant] to the SJ for consideration one more time”. 

13.  As for the 2^nd Leave to Appeal Application, it states as follows:

“Written application for leave to appeal to the Court of Appeal against Justice Queeny Au Yeung’s decision made on 31^st October 2019 for my written application for leave to RPO against Mr. Ngai Ngok Pang and Miss Ngai Yu Ling Mony due to Mr Ngai Ngok Pang’s letter addressed to Justice Queeny Au Yeung in HCMP 2155/2018 on 19^th September 2019 copied to me when it had nothing to do with HCMP 2155/2018 but accusing me to have destroyed their kitchen on purpose. The captioned letter reminded me to claim my taxi fees, repairs and maintenance for the broken Range Hood, dinner held for the Chinese New Year Eve, Red Pockets paid to the caretakers etc all incurred on 9^th February 2013, as well as my damages and injury to feeling to be assessed by Justice Queeny Au Yeung.”

14.  The application was also supported by an affirmation made by the plaintiff on the same day.  In the affirmation, the plaintiff asked for leave to appeal to the judges dealing with CACV415/2019 because there were common reliefs, so as to make the 2^nd defendant appear before the Judge to sign her English name.  The plaintiff said that all her proceedings against the 1^st and 2^nd defendants were not for money, but was “to prosecute, charge and sentence [the 1^st defendant] only for his offences committed not only in forgery by false affidavits, statements … etc under Section 36, 39 & 40 of Cap. 200 (Crimes Ordinance).”

15.  On 11 November 2019, the Judge refused both the 1^st and 2^nd Leave to Appeal Applications for the reason that no arguable grounds of appeal were disclosed (respectively “the 1^st 11 November Order” and “the 2^nd 11 November Order”).

16.  On 25 November 2019, the plaintiff issued the respective summons in CAMP 295/2019 and CAMP 296/2019 to apply for leave to appeal to the Court of Appeal against the 1^st and 2^nd 11 November Orders.  

CAMP 295/2019

17.  The summons in CAMP 295/2019 gave the following as the grounds of the intended appeal:

“Please note that my application for an Injunction Order against Mr. Ngai Ngok Pang by not sending any letter or correspondence to me to United Christian Hospital with immediate effect is either here or there, either in CACV415/2019 (on appeal from HCMP2155/2018) or CACV XXX/2020 (on appeal from CAMP 295/2019).

Furthermore, as my proceedings are not aiming at claiming HK$1.00 from Mr. Ngai Ngok Pang but prosecuting, charging and sentencing him for over 7 years’ imprisonment once if conviction not only due to his forgery made for Miss Ngai Yu Ling Mony in HCMP2829/2012 on 24^th December 2012 but for Mr. Ngai Ngok Leong too in HCMP2155/2018 on 2^nd January 2019.” 

18.  The summons also stated that a draft grounds of appeal and written arguments would be filed and served pending the hearing in CACV415/2019.

19.  Pursuant to the directions given by the Registrar of Civil Appeals, the plaintiff and the 1^st defendant had lodged their written submissions.

20.  In her written submission, the plaintiff referred to the cause of action (see [7] above) and the reliefs stated in a draft summons attached to the 1^st RAO Leave Application.  She also referred to the new evidence included in the Application Bundle (see [22]).  The plaintiff further asked if she was willing to pay into court her two judgment debts of $34,400 in HCMP2829/2012 and CACV118/2013, should the Judge refer to the Secretary for Justice what she claimed was forgery on the part of the 1^st defendant.  She also questioned whether the 2^nd defendant was entitled to the costs in HCMP2829/2012 if her signature in the Acknowledgement of Notice was forged and signed for her without her authorization.

21.  The 1^st defendant’s written submission criticized the plaintiff for (i) failing to serve the court documents on him and the 2^nd defendant separately in CACV415/2019 and the leave to appeal applications; (ii) deliberately using English in these proceedings despite having been informed that the 1^st defendant has difficulty understanding English; (iii) wrongly joined her daughter and the 2^nd defendant as parties in the various proceedings.  The 1^st defendant suggested that it was the plaintiff, and not her daughter, who actually instituted the litigations.  The 1^st defendant also pointed out that the plaintiff could not make use of the leave to appeal application to mount a new application.  

22.  Before dealing with the application, it is necessary to first deal with the state of the Application Bundle put in by the plaintiff.  The bundle has included what is described as “new evidence adduced for serious consideration”[3], which consists of (i) the plaintiff’s letter dated 30 December 2019 to the Appeals Registry, and (ii) the plaintiff’s letter to the 1^st defendant dated 21 January 2020 enclosing four letters[4].  No application for admission of new evidence has been made by the plaintiff.  In the absence of any Court order permitting new evidence to be adduced, these new documents should not have been placed in the Application Bundle, and we will not have regard to any of them in considering the present application.

23.  Turning to the application itself, the 1^st Leave to Appeal Application was in relation to the 1^st Decision.  After it was refused by the Judge, if the plaintiff still wished to appeal the 1^st Decision, she could make a further application for leave to appeal to the Court of Appeal under Order 59 rule 2B (3) of the Rules of the High Court.  She should not have applied for leave to appeal the Judge’s refusal of the 1^st Leave to Appeal Application (i.e. the First 11 November Order).  We will nevertheless treat the plaintiff’s application in CAMP 295/2019 as if it was a further application for leave to appeal the 1^st Decision under Order 59 rule 2B (3). 

24.  As to the merits of the application, we agree with the Judge that the 1^st RAO Leave Application is wholly devoid of merits.  The plaintiff had not demonstrated any proper basis for the issue of a RPO against the 1^st defendant.  It would appear from what was said in the plaintiff’s affirmation in support of the 1^st Leave to Appeal Application, the present summons and the written submission that the plaintiff had confused an injunction with a RPO, and what she was seeking was an injunction order against the 1^st defendant.  The Judge is correct in refusing to give leave under the RAO for the plaintiff to issue the draft summons to apply for a RPO against the 1^st defendant.

25.  Further, the grounds of appeal contained in the 1^st Leave to Appeal Application and the present summons do not constitute viable grounds of appeal against the Judge’s refusal to give leave under the RAO for the summons to be issued.  The matters stated in the plaintiff’s written submission do not appear to have any relevance to the 1^st RAO Leave Application.  Importantly, the plaintiff fails to identify any error in the Judge’s reasons and refusal of leave to apply for a RPO against the 1^st defendant.

26.  As the plaintiff’s intended appeal has no prospect of success, leave to appeal should be refused.  Accordingly, we dismiss the plaintiff’s summons.  Applying the usual rule of costs follow the event, we make an order that the plaintiff pays the 1^st defendant the costs of the application to be summarily assessed.

CAMP 296/2019

27.  In the summons in CAMP 296/2019, the plaintiff gave the following as the grounds of her intended appeal:

“Please note that my intended proceedings to be taken against Mr Ngai Ngok Pang & Ms Ngai Yu Ling Mony were/are not aiming at claiming HK$1.00 from Mr. Ngai Ngok Pang but prosecuting, charging and sentencing him for over 7 years’ imprisonment once if conviction not only due to his forgery made for Miss Ngai Yu Ling Mony in HCMP2829/2012 on 24^th December 2012 but for Mr. Ngai Ngok Leong too in HCMP2155/2018 on 2^nd January 2019.”

28.  The plaintiff also stated that a draft grounds of appeal and written arguments would be filed and served pending the hearing in CACV415/2019.

29.  The plaintiff and the 1^st defendant had lodged written submissions on the application.  Both submissions are identical to the written submissions they lodged in CAMP 295/2019.

30.  Similar to the Application Bundle in CAMP 295/2019, the Application Bundle in CAMP 296/2019 also included some new evidence that was not before the Judge.[5] Apart from the two letters that were also in the Application Bundle in CAMP 295/2019, it also included a letter dated 10 January 2020 from the plaintiff to the Judge.  There is again no application by the plaintiff for admission of new evidence.  As no leave has been given for these new documents to be adduced, we will not have regard to them when considering the application.

31.  On 31 July 2020, the plaintiff wrote to the Registrar for Civil Appeals in which she stated:

“Respectively, I decide to dismiss CAMP 296/2019 on my own motion with no costs order to be made with immediate effect …”

32.  On 7 August 2020, the plaintiff wrote again to the Registrar for Civil Appeals, enclosing an originating summons dated 3 August 2020 issued by her against the 1^st and 2^nd defendants in HCMP 1128/2020.  The plaintiff stated in the letter that:

“Please note that if Justice Queeny Au Yeung may grant me leave to RPO on 20^th December 2019, I might not have proceeded CAMP 296/2019 in Court of Appeal at all.”

33.  It is unclear from these two letters whether the plaintiff intends to proceed with the application in CAMP 296/2019.  If she is really minded to have her application dismissed, she ought to make a proper application to the Court of Appeal. Further, as a matter of general rule, the plaintiff would have to pay the defendants the costs of the application.  She has given no justification for making no order as to costs.

34.  Since there is no clear and unequivocal application to withdraw or dismiss the application, we will proceed to deal with it on its merits.

35.  As in the case of CAMP 295/2019, the plaintiff should not be seeking leave to appeal the Judge’s refusal of leave to appeal made on 11 November 2019.  Instead, the plaintiff should have made a further application for leave to appeal to the Court of Appeal under Order 59 rule 2B (3) of the Rules of the High Court in respect of the 2^nd Decision which refused to give leave to the plaintiff to issue the summons against the 1^st and 2^nd defendants.  We will similarly treat the plaintiff’s application in CAMP 296/2019 as if it was a further application for leave to appeal the 2^nd Decision under Order 59 rule 2B (3).

36.  On the merits of the application, the 2^nd RAO Leave Application is clearly unarguable.  The plaintiff had not demonstrated any proper basis for the issue of a RPO against the 1^st and/or the 2^nd defendant. Further, as the Judge pointed out, the letter that the plaintiff complained about was said to be sent by the 1^st defendant; it was not shown how the 2^nd defendant was involved in it and there was no allegation of any wrongful behaviour on her part.  The Judge is correct in refusing to give leave under the RAO for the plaintiff to issue the draft summons applying for a RPO against the 1^st and 2^nd defendants.

37.  The reasons and grounds for the intended appeal that the plaintiff put forward in the 2^nd Leave to Appeal Application and the summons in CAMP 296/2019 do not amount to viable grounds of appeal against the Judge’s refusal of the 2^nd RAO Leave Application.  The plaintiff has not identified any error in the Judge’s refusal and reasons.  The matters stated in the plaintiff’s written submission are irrelevant and unarguable.

38.  The plaintiff’s intended appeal has no prospect of success.  Accordingly, we refuse leave to appeal and dismiss the summons.   Applying the usual rule of costs follow the event, we make an order that the plaintiff pays the 1^st and 2^nd defendants the costs of this application to be summarily assessed.

Directions for summary assessment of costs

39.  To facilitate the summary assessment of the 1^st defendant’s costs in CAMP 295/2019 and the 1^st and 2^nd defendants’ costs in CAMP 296/2019, we make the following directions:

(1)  Within 14 days from the handing down of this judgment,

(a)  The 1^st defendant shall lodge with the court and serve on the plaintiff his statement of costs for summary assessment in CAMP 295/2019;

(b)  The 1^st and 2^nd defendants shall lodge with the court and serve on the plaintiff their statement of costs for summary assessment in CAMP 296/2019;

(2)  Within 14 days thereafter,

(a)  the plaintiff may lodge with the court and serve on the 1^st defendant her statement of objection in CAMP 295/2019, if any; and

(b)  the plaintiff may lodge with the court and serve on the 1^st and 2^nd defendants her statement of objection in CAMP 296/2019, if any. 

40.  We will then give our decision on the assessment of costs.

Other matter

41.  As the plaintiff’s applications in both actions are totally without merits, we further make an order in each of the action, pursuant to Order 59 rule 2A (8) of the Rules of the High Court, that no party may under Order 59 rule 2A (7) request the determination to be reconsidered at an oral hearing inter partes.