LEUNG FUK WAH OIL v. SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER OF POLICE

CACV 175/2012,
CACV 200/2012,
CACV 228/2012
and CACV 229/2012
(Heard together)

香港特別行政區

高等法院上訴法庭

民事司法管轄權

民事上訴

民事上訴案件2012年第175號

（原本案件編號：高等法院雜項案件2010年第381號）

________________________

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2012

(ON APPEAL FROM HCA NO. 429 OF 2010)

________________________

BETWEEN

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 228 OF 2012

(ON APPEAL FROM HCA NO. 480 OF 2010)

________________________

BETWEEN

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 229 OF 2012

(ON APPEAL FROM HCA NO. 508 OF 2010)

________________________

BETWEEN

________________________

(Heard Together)

________________________

J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  In four separate actions, four former police officers sued the Commissioner of Police for damages in respect of what they alleged to be wrongful termination of their services. Each of them was either dismissed or compulsorily retired after disciplinary proceedings held against him. The relevant dates of their disciplinary hearings, the making of the awards of dismissal or compulsory retirement and their confirmation and the actual date of termination are as follows:

	Date of Conclusion of Hearing	Dates of Awards (and Confirmations)	Date of Actual Termination
Ho Kin Man	28.10.03	10.11.03 (8.12.03, 15.3.04)	22.3.04
Lai Ying On	25.5.04	1.6.04 (23.7.04, 16.9.04)	23.9.04
Ng Sai Hing	15.9.04	27.9.04 (4.1.05, 7.11.05)	17.11.05
Leung Fuk Wah	29.3.99	30.4.99 (21.6.99, 8.3.00)	17.3.00

2.  The claims in their respective action are based on the wrongful prohibition against legal representation at the disciplinary hearings.  Before the decision of the Court of Final Appeal in Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, regulation 9(11) and (12) of the Police (Disciplinary) Regulations Cap 232A set an absolute bar against legal representation in disciplinary proceedings against police officers.  On 26 March 2009, the Court of Final Appeal held that such an absolute bar was unconstitutional and the Commissioner should consider whether fairness required permission being given for legal representation in the circumstances of each case.

3.  The four plaintiffs had challenged their respective dismissal/compulsory retirement by applications for judicial review.  None of them succeeded.  Only one of them, Ho Kin Man, challenged the constitutionality of the absolute bar against legal representation in his application for judicial review.  The particulars of their respective challenge by way of judicial review are as follows:

	First Instance Proceedings	Appeal
Ho Kin Man	HCAL 23/2005; leave refused on  22.4.05	CACV 145/2005; appeal dismissed on 31.8.05
Lai Ying On	HCAL 5/2005; leave refused on 9.6.05	CACV 226/2005; appeal dismissed on 3.10.05
Ng Sai Hing	HCAL 15/2006; leave granted; substantial application dismissed on 26.1.07	No appeal

 

	First Instance Proceedings	Appeal
Leung Fuk Wah	HCAL 371/2001; leave granted; substantial application against the primary awards dismissed though certiorari granted regarding the Commissioner’s dismissal of the appeal	CACV 2744/2001; appeal by the Commissioner allowed and the cross-appeal by Leung dismissed on 28.3.02

4.  As shown above, the judicial review proceedings and the appeals were concluded well before the judgment of the Court of Final Appeal in Lam Siu Po.  However, though none of the plaintiffs could have relied on that judgment in their applications for judicial review, each of them could have advanced a similar constitutional challenge to regulation 9(11) and (12) of the Police (Disciplinary) Regulations Cap 232A [“the Regulations”] in their respective case.  Actually, Mr Ho did raise a similar point but, unlike Mr Lam, he did not take his case to the Court of Final Appeal.

5.  By the time when the Court of Final Appeal delivered judgment in Lam Siu Po, these four plaintiffs were substantially out of time in terms of appealing further in the applications for judicial review.  In view of the authorities decided subsequent to Lam Siu Po in similar context, it is unlikely that any of them could get leave to appeal out of time to enable them to benefit from the decision in Lam Siu Po: see Clarence Chan Kang Chau v Commissioner of Police (2010) 13 HKCFAR 462; Lam Chi Wai v Commissioner of Police HCMP 311 of 2010, 24 June 2010; Ho Ho Chuen v Commissioner of Police HCMP 2276/2009, 18 Dec 2009; Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009, 26 Feb 2010; CACV 38/2010, 28 March 2011; 李錦榮 對 警務處處長 CACV 115/2010, 11 April 2011; Lam Sze Ming v Commissioner of Police FAMV 26/2010, 15 March 2011; Chau Cheuk Yiu v Poon Kit Sang (2012) 15 HKCFAR 460.

6.  Instead of seeking leave to appeal out of time, the four plaintiffs commenced ordinary civil actions seeking damages by issuing an originating summons and writs in 2010 and 2011 respectively.  The Commissioner applied to have these actions struck out.  On 13 July 2012, Deputy High Court Judge Saunders [“the Judge”] acceded to the applications and struck out the claims of these plaintiffs.  These are the appeals against such decisions.

7.  Though the Commissioner advanced three broad grounds for striking out, the Judge only accepted two of them.  The grounds accepted by the Judge were:

(a) The claims were time-barred; and

(b) By reason of the unsuccessful judicial review applications, there is an issue estoppel against each of the plaintiffs in respect of the constitutionality of the Regulations and the present actions should be struck out as abuse of process.

8.  The Judge did not accept the contention of the Commissioner that in any event the plaintiffs do not have any reasonable cause of action.  In these appeals, the Commissioner has filed respondent notices seeking to uphold the striking out on the ground of no reasonable cause of action.

Abuse of process

9.  We shall first deal with the arguments on abuse of process.  Before we consider the substantive arguments on the application of legal principles to the facts of these appeals, we would briefly examine the law.  As we shall see, there is not much disagreement between Mr Dykes SC (appearing together with Mr Pun for the 4 plaintiffs) and Mr Shieh SC (appearing together with Mr Lui for the Commissioner) on the proper approach to be adopted.

10.  Mr Dykes referred us to the recent judgment of the Supreme Court in Virgin Atlantic Airways v Zodiac Seats UK Ltd [2014] AC 160.  There is a clear exposition of the law on estoppel in the judgment of Lord Sumption JSC (with whom Baroness Hale, Lord Clarke and Lord Carnwarth agreed).  His Lordship gave a clear analysis on the different legal principles which could loosely be regarded as coming with the ambit of “res judicata”. For present purposes, we only need to mention four different principles identified by His Lordship at para 17 of the judgment:

(a) Cause of action estoppel;

(b) Issue estoppel;

(c) The principle formulated in Henderson v Henderson; and

(d) General procedural rule against abusive proceedings.

11.  Before us, Mr Shieh disavowed any reliance on cause of action estoppel.

12.  In his judgment, the Judge did not draw any distinction between issue estoppel and the Henderson v Henderson principle.  He primarily relied upon Arnold v National Westminster Bank [1991] 2 AC 93 for his conclusion on estoppel.  The Judge also referred to the statement of principle by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 at p.31D and p.23E-F.

13.  In Virgin Atlantic Airways, Lord Sumption analysed Arnold at some length at paras 20 to 22 of his judgment.  We respectfully agree with His Lordship that Arnold was not a Henderson v Henderson case.  However, in the context of issue estoppel, Arnold decided that there is flexibility to permit a point that has been previously argued to be re-opened in subsequent proceedings where due to special circumstances a bar to raise the issue again would cause injustice.  The approach formulated by Lord Keith in Arnold was set out at [1991] 2 AC 93 p.109:

“… there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppels being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.”

14.  On the other hand, Johnson v Gore Wood [2002] 2 AC 1 is a Henderson v Henderson case, see para 25 of Virgin Atlantic Airways.  The approach of Lord Bingham again places emphasis on flexibility and focuses on whether in all circumstances a party is misusing or abusing the court process. It has to be a broad merits-based assessment having regard to the relevant private and public interest.  This is now firmly established to be the proper approach by a line of authorities in Hong Kong: Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111; Chiang Lily v Secretary for Justice [2009] 6 HKC 234; Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72; Total Lubricants v De Chanterac (No 2) [2013] 2 HKLRD 838.    

15.  Though Lord Sumption regarded res judicata and abuse of process as two juridically different concepts, His Lordship was of the view that the Henderson v Henderson kind of abuse of process can be part of the law of res judicata. At para 25 of the judgment in Virgin Atlantic Airways, after referring to the distinction between the two concepts, he said:

“In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. …”

16.  There may be further development in terms of the assimilation of the approach of Lord Bingham in the context of issue estoppel. But it is not necessary for us to decide whether there should be such assimilation in the present appeals.  Mr Shieh is quite content to adopt a broad merits-based assessment in deciding whether these actions should be struck out as being abuse of the court process.  We would take the same approach.

17.  We should mention Mr Shieh also relied on the principle in Hunter v Chief Constable of the West Midlands Police [1982] AC 529.  Insofar as a second action can be regarded as a collateral attack on the previous decision, we accept this must be a relevant consideration in the overall assessment under Lord Bingham’s broad merits-based assessment.  As we shall discuss below, this can be a weighty consideration in terms of the public interest in finality of litigation.

18.  Mr Dykes raised the following arguments in contending that it is not an abuse for the four plaintiffs to pursue their claims for damages notwithstanding their unsuccessful attempts in judicial review:

(a) The issue of constitutionality of the Regulations had not been litigated in the judicial review proceedings of Lai, Ng and Leung;

(b) The principle of issue estoppel does not apply to decision given in judicial review proceedings at all or not in its full rigour.  This is particularly so in light of the short time frame for lodging applications for judicial review and the discretionary nature of remedies in such proceedings;

(c) The Commissioner was not vexed twice in the cases of Ho and Lai since they did not get leave to apply for judicial review;

(d) The remedies sought in the judicial review proceedings aimed at seeking the reversal of the decision to terminate the services of the four plaintiffs whereas in the civil actions they accepted that they could not be reinstated and they are seeking damages.  The objectives of the plaintiffs were different in the different sets of proceedings;

(e) The plaintiffs did not and could not have advanced a pure claim for damages in the applications for judicial review;

(f) The seeking of damages would not disrupt the administration of the police in terms of potential prospects of having these four plaintiffs reinstated as police officers;

(g) Lam Siu Po shows that the decisions of the court in Ho’s application for judicial review were wrong in rejecting his challenge based on article 10 of the Hong Kong Bill of Rights;

(h) In light of the then state of authorities, the other three plaintiffs only acted in a realistic manner in not advancing a similar challenge and they should not be penalised for so conducting their applications for judicial review.

19.  For the Commissioner, Mr Shieh submitted that the actions by writ are no less than collateral attack on the previous decisions given by the court in the judicial review proceedings.  It does not matter that the plaintiffs now seek damages as opposed to the quashing of the decisions on the termination of their services.  Nor does it matter that three plaintiffs did not raise the constitutional challenge in their applications for judicial review since they could have raised the challenge in attacking the legality of the dismissal/compulsory retirement ordered by the Commissioner.

20.  He contended that the principles of issue estoppel and Henderson v Henderson abuse of process are applicable in the context of judicial review proceedings.  In cases concerning a public authority like the Commissioner, there is a strong public interest in that the Government should be in a position to know whether its decision can withstand legal challenges.  Another important public interest is the finality of litigation as explained in the context of refusal of leave to extend the time for appeal.  To allow these plaintiffs to have a second attempt at attacking the legality of their terminations would, counsel said, bring the administration of justice into disrepute.

21.  As indicated earlier, we would focus on Henderson v Henderson abuse of process.  We do not see any reason in principle why this principle cannot be applied in the context of judicial review.  The court must have the power to strike out abusive proceedings, be it public law proceedings or private law civil claims.  In Chiang Lily v Secretary for Justice [2009] 6 HKC 234, Ma CJHC (as he then was) applied the Henderson v Henderson principle and the approach of Lord Bingham in the context of a subsequent set of judicial review proceedings despite an adverse decision in an earlier application for judicial review.  This decision was affirmed by the Appeal Committee of the Court of Final Appeal in refusing leave to appeal (see (2010) 13 HKCFAR 208).

22.  What was said by Li CJ at paras 12 to 14 are also pertinent in the present context:

“12. The central argument upon which leave to appeal against the Court of Appeal’s conclusion of abuse is sought involves the contention that the applicant should not be shut out from arguing a point of which she was herself previously unaware and which her then legal advisers either did not know about or did not consider to be viable, given that her present legal advisers now take a different view and consider it a worthwhile line to pursue. As was put by Mr Johnny Mok SC, who has said all that could be said on behalf of the applicant:

If (the original legal advisers) failed to appreciate a difficult or novel line of argument or that such argument is viable, the consequence of that failure should not be visited upon their lay client …

13. We do not accept that argument. The fact that a second or subsequent set of lawyers thinks of a new point which the earlier advisers did not consider or might have thought was unmeritorious cannot be a basis for effectively re-opening a matter where arguments then considered proper had been deployed and duly considered. If that were the applicable standard, there would never be finality in any court proceedings. As the Court stated in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, a person is generally bound by the way a matter is conducted by his or her counsel. The exception is where the person in question can show that he or she was deprived of a fair trial because of the “flagrant incompetence” of counsel.

14. In considering whether there has been an abuse of process, all the relevant circumstances have to be considered. But on a leave application like the present, the applicant must show that it is at least reasonably arguable that a charge of flagrant incompetence can properly be made against the earlier advisers. No such allegation is or could possibly be made in the present case. A difference of view taken by counsel now instructed – on a point described as “novel” or “difficult” – falls far short of the applicable standard.”

23.  The same logic applies here even though the change of view on the viability of constitutional challenge is brought about by the reversal of previous authorities by the Court of Final Appeal in Lam Siu Po.  In this connection, the public interest on finality of litigation, as discussed below, is of great significance.

24.  As regards Mr Dykes’ submission that the principle should not be applicable in respect of a decision on refusal of leave to apply for judicial review and the Commissioner was not vexed twice, we do not agree that those are reasons for excluding the cases from the scope of the Henderson v Henderson principle altogether.  The case cited by Mr Dykes, R (Opoku) v Principal of Southwark College [2003] 1 WLR 234, was a decision on the cause of action estoppel instead of Henderson v Henderson abuse of process.  At para 16 of the judgment of Lightman J, His Lordship clearly envisaged that the second application for leave could, in an appropriate case, be refused as an abuse of process.  The same can be said in respect of R(Eco Power) v Transport  for London [2010] EWHC 1683 (Admin), see paras 21 and 22; and BA v Secretary of State for the Home Department [2012] EWCA Civ 944 paras 24 to 27.

25.  In Chiang Lily v Secretary for Justice [2009] 6 HKC 234, Ma CJHC (as he then was) explained at paras 56 to 63 of his judgment the availability of the power to strike out an abusive second attempt to litigate even though it may not be strictly between the same parties.  It is not necessary to have a party being vexed twice if abuse can be established in all the circumstances of the case: see China North Industries Investment v Chum [2010] 5 HKLRD 1; King’s City Holdings v De Monsa Investments Ltd [2013] 4 HKC 450; Calyon v Michailaidis [2009] UKPC 34.

26.  Further, as it is a broad merits-based assessment, we do not see any reason why the principle should be applied with less vigour in respect of previous decisions reached in judicial review proceedings.  There is no suggestion in Chiang Lily that the court should be less inclined to apply the principle if an earlier decision was given in an application for judicial review.  A well-established situation where it is abuse of process to bring subsequent proceedings which had the effect of collateral challenge to earlier proceedings is the pursuit of civil claim for damages by a person previously convicted in criminal proceedings, see Hunter v Chief Constable of West Midlands Police [1982] AC 529.  The nature of the earlier proceedings cannot be a reason for changing the overall approach.

27.  Having said that, we accept the circumstances in which the earlier decisions were made in the judicial review applications, including that Ho’s and Lai’s applications failed at the leave stage, should be taken into account in the overall broad merits-based assessment.

28.  However, we do not accept that the difference in the remedies sought by the plaintiffs (damages in the writ actions as opposed to certiorari quashing the decisions to terminate their services as police officers) in the two sets of proceedings is of much relevance in the overall assessment as to whether the subsequent civil claims are abuses of the process.

29.  The relevant public interest which militates against permitting the constitutionality of the Regulations to be litigated in the subsequent actions is two-folded.  First, proper public administration dictates that decisions by public authorities on matters of public interest should be settled within a reasonable time frame.  This is the rationale for the requirement of promptitude in proceedings for judicial review.  In the context of the decision to terminate the service of a police officer, if there is any challenge as to the procedural irregularity of the disciplinary proceedings, it must be in the public interest that the challenge is argued and ruled upon (if necessary by the court) once and for all.  If the court upheld the challenge, a new set of disciplinary proceedings could be held in accordance with the proper procedures.  Once a challenge to a set of disciplinary proceedings had been resolved, substantive decision would be made in the proceedings on the basis that its legality is settled.  After such decision has been implemented, there is a public interest that generally the legality of the decision should not be re-visited.

30.  This public interest is not confined to a second challenge with a view to reversing the decision to dismiss / compulsorily retire an officer.  It equally applies in respect of claims for damages.  As Mr Dykes submitted before us, it would be unrealistic to expect the four plaintiffs to be reinstated. Likewise, it would be unrealistic to expect fresh sets of disciplinary proceedings in accordance with Lam Siu Po to be conducted in light of the lapse of time and lapse of memories of the witnesses concerned.  Thus, the Commissioner has lost the option to test the validity of the decisions to terminate their services by fresh sets of disciplinary proceedings in resisting the claims for damages.  Since any award of damages would have to be paid out of public fund, the prejudice suffered by the Commissioner in his defence is also prejudicial to the public interest.

31.  The second facet of the relevant public interest is finality in litigation.  This facet of public interest manifests itself in several ways.  The Judge referred to the cases on applications for extension time for the bringing of an appeal on account of the change brought about by Lam Siu Po.  Mr Shieh drew our attention to the judgment of Chan PJ (with whom Ribeiro PJ, Litton NPJ and Gleeson NPJ agreed) in Chau Cheuk Yiu v Poon Kit Sang (2012) 15 HKCFAR 460.  At paras 53 to 55, His Lordship succinctly summarised the relevant considerations and the importance of the finality principle:

“53. When considering an application for extension of time to lodge an appeal, the court must have regard to all the circumstances in deciding whether the overall justice of the case requires the exercise of the discretion to extend time. This involves an assessment of all relevant factors, such as the strength of the proposed appeal, the length of the delay, the reasons for the delay, the interest of society to have finality in litigation and the interests of the parties affected. The party seeking indulgence must satisfy the court that an extension of time is merited.

54. Where the sole or real ground of the proposed appeal is that there was a previous misunderstanding of the applicable law, the principle to be applied for determining whether to grant an extension of time was stated by this Court in Hung Chan Wa. In that case, Chief Justice Li (with whom the other members of the Court agreed), having considered the relevant overseas jurisprudence, held that this ground by itself would not justify an extension but that there could be exceptional circumstances in a particular case which would justify an extension. He added that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.

55. It is acknowledged that in the majority of cases, this principle may create a sense of grievance for the parties concerned.  However, the finality principle is considered as of such critical importance to the overall administration of the justice system that this factor outweighs other factors save in exceptional circumstances in which case extension should be granted.  Where such exceptional circumstances exist, one would expect that they would be plain and obvious and readily identifiable.”

32.  In that case, one of the matters relied upon as exceptional circumstances was the explanation by the judge at first instance on the then state of authorities which led the applicant to abandon a challenge to the constitutionality of the Regulations.  The majority of the Court of Final Appeal did not regard that as giving rise to exceptional circumstances to warrant an extension of time, see paras 73 to 78.  The extension of time granted by the Court of Appeal was therefore set aside.  For present purposes, what was said by Chan PJ at para 74 of the judgment is relevant:

“… If the judge had not given any advice to Mr Chau but had gone ahead to hear the argument on the art 10 issue and decided the point, I do not think there would be any exceptional circumstance under the Hung Chan Wa principle. So why would the judge’s advice make any difference?”

33.  That was what happened in the case of Ho.  In respect of Lai, Ng and Leung, they did not challenging the constitutionality of the Regulations in their respective judicial review application either due to advice they had obtained or for other reasons.  By parity of the reasoning of Chan PJ, no matter what the reason was, they could not rely on that to make out a case of exceptional circumstances. 

34.  In Clarence Chan v Commissioner of Police (2010) 13 HKCFAR 462, Bokhary PJ explained the importance of finality in litigation at para 7:

“It is in the nature of our legal system that the view of the law on which a litigant lost may be overruled in another case decided after the time for him to appeal has expired. Finality in litigation being so important, such overruling cannot of itself justify an extension of time for appealing. There can of course be exceptional circumstances that would justify such an extension. But such circumstances are so exceptional that they would very rarely arise.”

35.  Another way in which this facet of public interest manifests itself is the striking out of collateral attack on a final decision of the court as an abuse of process as in Hunter v Chief Constable of West Midlands Police [1982] AC 529.  At p.542C, Lord Diplock cited the judgment of Lord Halsbury in Reichel v Magrath (1889) 14 App Cas 665 at p.668 as the applicable principle:

“… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same again.”

36.  Whilst the constitutionality of the Regulations had been decided in Ho’s judicial review, it had not been raised in Lai, Ng and Leung’s cases.  However, the Henderson v Henderson principle catches cases where an issue could and should have been litigated in an earlier set of proceedings.  As Ma CJHC (as he then was) said at para 62 of the judgment in Chiang Lily v Secretary for Justice [2009] 6 HKC 234,

“Much therefore depends in any given case on the precise circumstances as to whether or not the attempt to raise an issue for determination in proceedings will constitute an abuse where such an issue could have been raised in previous proceedings. Where an issue should have been raised, it is likely that an abuse has occurred.”

37.  Given that the principle of finality is the common underlying public interest involved in these cases, the policy adopted in cases on extension of time must be relevant in the cases for striking out attempts to re-litigate.  This is expressly recognised by Lord Keith in Arnold v National Westminster Bank [1991] 2 AC 93 at p.109G.

38.  Mr Dykes submitted that in the striking out context, the applicable test is Johnson v Gore Wood and there is no need for the plaintiffs to show exceptional circumstances as in an application for extension of time to appeal.  Whilst we agree that the applicable test is the broad merits-based assessment propounded by Lord Bingham in Johnson v Gore Wood, we are of the view that in such assessment the court should bear in mind the importance ascribed to finality in litigation in the administration of civil justice.  Thus, even though it may not be necessary for the plaintiffs to show exceptional circumstances to resist a striking out application on the ground of Henderson v Henderson abuse of process, the court is entitled to examine what reasons are given by the plaintiffs to weigh against the public interests canvassed above. In the context of a case where reasons given were not sufficient to give rise to exceptional circumstances to warrant extension of time to be granted for appeal, the court has to ask itself whether the pursuit of the second action is a collateral attack on the decision in the first action and as such it would bring the administration of justice into disrepute to allow it to be brought.

39.  In Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72, Ma CJ set out at para 83 of the judgment some facets of the exercise of the power to strike out on the ground of Henderson v Henderson abuse of process,

“(1) The starting point is to recognise that the doctrine is founded on an abuse of process.  As Lord Willberforce said in Brisbane City Council v A-G for Queensland, “it ought only to be applied when the facts are such as to amount to an abuse: otherwise, there is a danger of a party being shut out from bringing forward a genuine subject of litigation”: (p.425).

(2) This concern (that a party ought not lightly to be deprived of the right to have serious matters litigated) was echoed by Lord Millett in Johnson v Gore Wood & Co : (p.59D-G).

(3) It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings.  This abuse will usually take the form of the other party being “vexed” (or in some cases, the terms “oppressed”, “unjustly harassed” or “unjustly hounded” are used) by the subsequent set of proceedings: Johnson v Gore Wood & Co, 31A-B.

(4) The abuse can also take the form of the administration of justice being brought into disrepute: see Chiang Lily, 256D-G ([58]) referring to Hunter v Chief Constable of the West Midlands Police [1982] AC 529.  With the procedural reforms introduced by the Civil Justice Reform in 2009, the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process.  RSC O.1A r.1(f) states as one of the underlying objectives of the court’s procedural powers under the Rules to be “to ensure that the resources of the court are distributed fairly”.

(5) In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice.  It is important therefore here to emphasise that when the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppels or cause of action estoppels.  On the contrary, in considering this type of abuse the court is required to assess a number of factors and balance competing interests.  See here, Bradford and Bingley Building Society, 1490F-H.  It is also worth making the following observations at this juncture:

(a) There is conceptually an important distinction between absolute bars such as issue estoppels and the type of abuse with which we are concerned.  In the former situation, the party who seeks to re-litigate an issue or cause of action has already had his day in court, whereas in the latter situation, that party has not: cf Johnson v Gore Wood, 59D (“It is one thing to refuse to allow a party to re-litigate a question which already has been decided; it is quite another to deny him the opportunity of litigating for the first time a question which is not previously being adjudicated upon” (Lord Millett)).

(b) The assessment of different factors and balancing competing interests can be said to be an exercise of a discretion.  A number of decisions of the English Court of Appeal have cast doubt on whether the court does indeed exercise a discretion as such: see Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748, 762C-D ([16]) and Stuart v Goldberg Linde [2008] 1 WLR 823, 845E-846C ([81]).  It is unnecessary for present purposes to decide whether or not a discretion is actually being exercised.  The more important point to bear in mind is that an appellate court is obliged to pay sufficient regard to the decision of the court below and should be reluctant to interfere where the decision is based on the assessment or balancing of a number of factors. Nothing in the two said cases suggests otherwise; in fact, quite the contrary.”

40.  In the present appeals, as we said above, it is quite plain that the plaintiffs could not get leave to appeal out of time in their respective judicial review applications.  Thus, as submitted by Mr Shieh, one must examine whether there are valid reasons for allowing these plaintiffs to have a second bite of the cherry in the form of civil claims for damages in respect of the same decisions on the termination of their services when they could no longer challenge such decisions by way of judicial review.  If the civil claims could proceed even without any good reason to permit the same, the principle laid down in the extension of time cases can easily be circumvented.

41.  There is no doubt that the Judge was correct in holding that the constitutional challenge to the Regulations could be advanced in the judicial review proceedings.  Aside from the points taken by Mr Dykes on the applicability of res judicata in respect of judicial review (which we have rejected earlier), the plaintiffs relied on the argument that they (and their legal advisers) could not be said to have acted unreasonably in not pursuing (or pursuing further in the case of Ho) the constitutional challenge in view of the then state of authorities.  But that can be said in respect of all cases where the perception of the common law is changed by a subsequent decision.  We do not think this reason per se can be sufficient.  For reasons given above, the fact that the plaintiffs are now claiming damages instead of reinstatement to their offices is also not enough. 

42.  As the Chief Justice emphasised, it is a matter of balancing competing interests.  In the instant cases, we have on the one hand the private interest of the plaintiffs to have redress for the irregularity in their disciplinary proceedings in terms of the denial of the opportunities to seek legal representation.  On the other hand, there are strong competing public interests identified above.

43.  Though we accept, like Chan PJ did in Chau Cheuk Yiu v Poon Kit Sang (2012) 15 HKCFAR 460, that the plaintiffs would have a sense of grievance if their claims are struck out, we are of the firm view that the balance clearly comes down in favour of the Commissioner in these cases.

44.  Thus, we agree with the Judge that the constitutional challenge should have been advanced in the judicial review proceedings and it is an abuse of process to advance those claims in the writ actions.

45.  Therefore we uphold the decision of the Judge to strike out the plaintiffs’ action. 

46.  In light of this conclusion, it is not necessary for us to consider the submissions on limitation and reasonable cause of action.  We express no view on those grounds of attack by the Commissioner.

47.  We dismiss the appeals and make an order nisi that each of the plaintiffs shall pay the costs of the Commissioner in his respective appeal.  Since we do not rule on issue raised by the respondent’s notices, we make no order as to costs in respect of the same.