YUEN OI YEE LISA AND ANOTHER v. NGAI NGOK PANG AND ANOTHER

HCMP 2155/2018

[2019] HKCFI 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2155 OF 2018

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D E C I S I O N

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Background

1.  This hearing concerned a summons by the plaintiffs for a non-party to make an affidavit, for the defendants to provide original address proof and to re-list the originating summons for an early hearing.

2.  On 7 December 2018, the plaintiffs issued an originating summons in expedited form (“Form 10”) against the defendants seeking:

(a) an injunction against Mr Ngai Ngok Pang (D1) who had “sent his endless nuisances against the plaintiffs in the past” and compensation for injury to feelings; and

(b) an order for Ms Ngai Yu Ling Mony (D2) to issue a statutory demand to the plaintiffs and sign her English name on the statutory demand; and to pass the default judgment of D2, if any, to the Secretary for Justice for consideration.

3.  On 4 January 2019, the Plaintiffs applied for an interlocutory injunction against the Defendants.  The Defendants were absent at that hearing.  It transpired that the Plaintiffs had purportedly served the summons for interlocutory injunction on Mr Ngai Ngok Leong at his personal address; and the Plaintiffs had not requested Mr Ngai Ngok Leong to pass on the summons to the defendants.

4.  In fact, this court had received a letter dated 2 January 2019 from Mr Ngai Ngok Leong objecting to service of the summons on him at his address (“NNL’s letter”). At the hearing on 4 January 2019, this court referred Ms Yuen Oi Yee Lisa (the “1^st Plaintiff”) to NNL’s letter.  The 1^st Plaintiff explained to the court that she considered that Mr Ngai Ngok Leong would have passed on the summons to the defendants. This court had immediately told the 1^st Plaintiff that she could not serve documents on persons not related to this case. The 1^st Plaintiff told this court that she understood.

5.  At the hearing on 4 January 2019, this court dismissed the plaintiffs’ application for an interlocutory injunction on various procedural grounds. In the order of that date, this court referred to the letter of Mr Ngai Ngok Leong.

6.  Subsequent to the 4 January 2019 hearing, at the request of the plaintiffs and without objection from Mr Ngai Ngok Leong, a copy of NNL’s letter was given to the plaintiffs.

7.  Today’s summons was issued by the plaintiffs for the following orders:

(1) For Mr Ngai Ngok Leong to do an affidavit within 7 days from this order to confirm his signature and knowledge of NNL’s letter;

(2) To order the 2 defendants to provide original address proof for a period of about 3 months before 2 January 2019 in order to prove the lies of Mr Ngai Ngok Leong in NNL’s letter; and

(3) To relist a soonest date for hearing the originating summons and vacate the hearing to be held on 3 July 2019.

Orders made

8.  At this hearing, the 1^st Plaintiff represented Ms Lee Syn Yuk Michelle (the “2^nd Plaintiff”). After hearing, I dismissed the summons. I adjourned the Notice of Appointment to Hear Originating Summons sine die with liberty to restore after service of the originating summons.

9.  I also made the following orders:

(1) That the plaintiffs, whether jointly or individually, and/or through agents and/or through representatives, be restrained from serving any document in this case on Mr Ngai Ngok Leong or at his address without approval of the court. If any such document is served on Mr Ngai Ngok Leong without the court’s approval, he would not need to respond in any way (including but not limited to passing on those documents to any of the defendants or responding to any matter stated in those documents);

(2) A sealed copy of this order shall be sent by the court to Mr Ngai Ngok Leong and he does not have to respond in any way; and

(3) Penal notice to be endorsed on the order.

10.  I have explained to the 1^st Plaintiff that non-compliance with this order may amount to contempt of court, which may lead to imprisonment.  She acknowledged that she understood.

11.  Further, I have warned the 1^st Plaintiff that she may be issued with a restricted application order (“RAO”) if she should continued to issue summonses which have no merits.

12.  Here are my reasons for making the orders.

Procedural default

13.  In the court file there was no affidavit of service of the originating summons on the defendants. There was no acknowledgement of service filed by any of the defendants.

14.  The affidavit of service filed in respect of today’s summons showed that the summons had been served on the defendants and Mr Ngai Ngok Leong (for passing on to the defendants).

15.  D1 had faxed in a letter to this court dated 19 March 2019 (“D1’s letter”) raising various issues including service. This court declined to address the matters raised by D1 as he has not even filed any acknowledgement of service and yet there appeared to be some matters raised in that letter which ought to have been dealt with by a summons.  Also, the 1^st Plaintiff asserted that she had not received D1’s letter.

16.   Nevertheless, the summons not having shown on its face sufficient merits, I have proceeded to hear the 1^st Plaintiff to see if there was any case for the defendants to respond to.

Application for Ngai Ngok Leong to file an affidavit

17.  Mr Ngai Ngok Leong was and is not a party to this case. The 1^st Plaintiff explained that but for the court order dated 4 January 2019 which referred to NNL’s letter, she would not have issued this application to answer the allegations made by Mr Ngai Ngok Leong. She stated that she strongly believed the signature of Mr Ngai Ngok Leong on that letter was forged by D1.

18.  This application was frivolous and vexatious. NNL’s letter was put by this court to the 1^st plaintiff at the hearing on 4 January 2019, and she confirmed that she had sent the originating summons to Mr Ngai Ngok Leong. This court had told her not to do so again there and then. The need to deal with NNL’s letter had thus been spent at that hearing. There was no reason for the 1^st Plaintiff to trouble a non-party again. Her assertion of forgery had no evidential basis and was totally subjective. The affidavit sought from Mr Ngai Ngok Leong would not advance the plaintiffs’ case under the originating summons in any manner.  This application should be dismissed without the need to hear further from any other person.

Application for the two defendants to provide original address proof

19.  As known from other cases involving these two plaintiffs, there had been difficulties over liaison by the court with them. This court thus required the plaintiffs to provide original address proof.

20.  The same could not be said of the defendants. The duty was on the plaintiffs (not the defendants) to provide the addresses of the defendants for proper service.

21.  In her supporting affidavit, the 1^st Plaintiff suggested this application was “to be fair and in order to prove the truth or lies” of Mr Ngai Ngok Leong made to this court in NNL’s letter.

22.  Whether or not a non-party had made lies would not undermine the plaintiffs’ duty in paragraph 21. This application had no merits.

Relisting for an earlier date

23.  The originating summons was issued in the expedited form 10. According to Order 7, rule 2 (1B) of the Rules of the High Court, Form 10 could only be used if it was prescribed under a written law.

24.  The plaintiffs did not rely on any written law that authorized the use of Form 10. There was no evidence of the plaintiffs having served Form 10 on the defendants despite the 1^st plaintiff’s assertion that she had done so.

25.  Accordingly, I vacated the hearing date and adjourned the Notice of Appointment to Hear Originating Summons sine die with liberty to apply for restoration after service of the originating summons on the defendants.

26.  As none of the applications disclosed any arguable grounds, I dismissed the summons along the lines of paragraph 8 above.

Order restraining the plaintiffs from serving documents on Mr Ngai Ngok Leong

27.  Despite the court’s explanation at the first hearing on 4 January 2019, the plaintiffs had, for a second time served documents in this case on Mr Ngai Ngok Leong. Such abuse of process created unnecessary trouble to a non-party. The plaintiffs’ conduct must be restrained. Therefore, I made an order along the lines stated in paragraph 9 above.

Warning on the issue of a restricted application order (“RAO”)

28.  The plaintiffs have twice made applications in this case for totally unmeritorious reasons. Luckily, the defendants had not appeared although D1 had written to the court purportedly in answer to the present summons.

29.  The plaintiffs have been litigating in this court for years. If the conduct of issuing unmeritorious summons is to occur again, this court will have no hesitation in imposing a more stringent measure including issuing an RAO. It in the interest of all parties that the plaintiffs do effect proper service and bring the originating summons to a substantive hearing as soon as possible.