FOK SIU WING v. HONG KONG HOUSING AUTHORITY

[ English Translation – 英譯本]

CACV 99/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 99 OF 2014

(ON APPEAL FROM HCA NO 24 OF 2013)

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

1.  High Court Master Katherine Lo (as she then was), on the defendant’s application, struck out the plaintiff’s statement of claim and dismissed his claim.

2.  The plaintiff lodged an appeal to Au-Yeung J but his appeal was dismissed.  The plaintiff seeks to appeal against her decision.

3.  The defendant now makes two applications.  The first one is to strike out the plaintiff’s notice of appeal.  The other one is an alternative application requiring the plaintiff to provide security for costs of the appeal.

Background

4.  Au-Yeung J summarized the plaintiff’s claim in her judgment:

“2. On 7^th January 2013, Mr. Fok commenced this action. He stated in his statement of claim that in 2003 the Housing Authority was gravely in breach of the Basic Law by formulating a long-term policy that metal gates would not be installed for the tenants of public rental housing flats. Tenants were forced to sign an unconstitutional “room facilities inventory record” (literal translation) which stipulated that the Housing Authority would take possession of the metal gates installed by the tenants at their own expense upon the tenants’ moving out (“2003 policy”). Any tenant who did not sign this document would not be issued with a tenancy agreement for public rental housing accommodation. The tenants had no alternative but to sign.

3. Six years later, on 20^th March 2009, the Housing Authority announced that the said policy no longer existed while at the same time announcing that within one year’s time the Housing Authority would offer metal gate sets to those tenants who had not installed those of their own between 2003 and end of August 2008 (“2009 policy”).

4. According to Mr. Fok, the Housing Authority had all along been providing metal gates to the tenants. They were also responsible for their repair on a permanent basis as well as providing replacement services in case of damage in the future. Owing to the wrong policy made by the Housing Authority in 2003, 65,900 households had to install the gates for their flats at their own expense and this involved more than one hundred and sixty million Hong Kong dollars. This figure was worked out based on the payment of $2,500 per household for installation of a metal gate by the Housing Authority to the tenants who were affected by the estate clearance programme, namely 65,900 x $2,500. The Housing Authority deprived the tenants of their private property and seriously jeopardised the significant public interest of more than two hundred thousand Hong Kong residents.

5. In order to stop the Housing Authority from carrying on with the ultra vires acts as well as to prohibit the Housing Authority from breaching the Basic Law by depriving individuals of their private property, Mr. Fok asked the Court to order the Housing Authority to pay punitive damages of 1.6 million Hong Kong dollars being the interests accrued for five to ten years.  The said sum would be wholly donated to charities for good causes and Mr. Fok would not have any gain from it.”

5.  Au-Yeung J was of the view that the plaintiff’s statement of claim disclosed no reasonable cause of action.  Her grounds are as follows:

“12. In my view, three defects are present in the statement of claim.  Firstly, although Mr. Fok described his claim as a monetary claim between landlord and tenant in the box on the first page of the writ of summons, the only contract mentioned in his statement of claim was the tenancy agreement of a public rental housing flat with a “room facilities inventory record” attached.  Mr. Fok failed to say how the two sets of documents contravened the law of contract or the law of tenancy, or how they constituted a civil wrong.

13. Secondly, by virtue of Rule 3(a) of Order 6 of the Rules of the High Court, where the plaintiff sues in a representative capacity, the writ of summons must be indorsed with a statement of the capacity in which he sues before it is issued.  See Hong Kong Civil Procedure 2014, vol 1, para.15/12/5.

14. Obviously, Mr. Fok did not claim for his own personal loss.  If he purported to represent the 65,900 households of public rental housing in Hong Kong or the 200,000 Hong Kong residents, he had failed to state in what capacity he sued or the reason why the tenants did not sue themselves but had Mr. Fok acted on their behalf instead.  No matter who he represented, the loss suffered by individual household or resident was not necessarily the same.  The pleading drew no distinction regarding that.

15. Thirdly, Mr. Fok did not have any legal basis which sufficiently justified that the Court should award punitive damages.  What is more, the Court has no power to force any party in the litigation to use the sum of damages for charitable purposes.”

6.  Au-Yeung J was also of the view that the plaintiff’s claim constituted an abuse of process because the plaintiff had already claimed on the same cause of action prior to the present case.  His first claim was made against the defendant at the Small Claims Tribunal (SCTC5657/2011) on 11^th February 2011.  The claim was dismissed by the Small Claims Tribunal.  A Master of the High Court refused the plaintiff’s appeal out of time against that decision.

7.  On 25^th April 2012, the plaintiff applied to the Court of First Instance for leave to apply for judicial review on the same cause of action.  However, his application was refused by Fung J (HCAL 55/2012).  On 19^th November 2012, the Court of Appeal dismissed the plaintiff’s appeal (CACV 145/2012).  The plaintiff now makes a claim on the same cause of action and it is obviously an abuse of process.

8.  The plaintiff stated in the statement of claim of the present case that the defendant was in breach of Articles 11 and 105 of the Basic Law.  Article 11 provides that “No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene the Basic Law.”  Article 105 provides that “The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.  Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay.  The ownership of enterprises and the investments from outside the Region shall be protected by law.”

9.  Although the Court of Appeal did not discuss the dispute concerning Article 105 of the Basic Law in the judgment of CACV 145/2012, clearly paragraph 13 of the judgment did substantively deal with the issue:

“13. We do not think Fung J manifestly erred in his decision on the following grounds.  For point (1), it was not unreasonable that the “Housing Authority” did not pay for Mr. Fok’s expense of installing a metal gate.  The decision made and the policy implemented by the “Housing Authority” on 31^st July 2009 aimed at ensuring the households could enjoy the security facilities rather than offering them such advantages as a metal gate or consideration in lieu.  With this end in view, for those tenants who had installed such security facilities, the “Housing Authority” would provide repair and replacement services free of charge.  By so doing, all households could be reasonably protected and equitably enjoy the security facilities.”

10.  Au-Yeung J relied upon paragraph 13 of the said judgment and found that the defendant was not in breach of Article 105 of the Basic Law.

Our Views

Striking out the notice of appeal

11.  We agree with the ruling made by Au-Yeung J that the statement of claim disclosed no reasonable cause of action and that it was an abuse of process.  We also agree with her ruling on the other issues raised by the plaintiff.

12.  Section 34B of the High Court Ordinance, Cap. 4, the Laws of Hong Kong, stipulates that the Court shall be duly constituted for the purpose of dealing with any “interlocutory” application if it consists of two Justices of Appeal.  By reason of the “application test” (see Bank of China (Hong Kong) Ltd v Twin Profit Ltd & Others (CACV 94/2010)), an application for striking out a notice of appeal is an “interlocutory” application.  The “application test” means that any court ruling, no matter whether it is in favour of or against either side of the litigants, which would ultimately resolve the disputes of the parties, will be a “final” order rather than an “interlocutory” order.  The most salient example of a “final” order is the judgment made by the Court upon hearing evidence in a trial.  Regarding the application for striking out the notice of appeal, the Court can resolve the parties’ litigation only when it accepts the Respondent’s application for striking out. In case the Court does not accept the application, the parties shall carry on with the appeal proceedings so as to come to a final resolution of the issues in the litigation.  For that reason, the present application is an “interlocutory” application.  Rule 21 of Order 59 of the Rules of the High Court listed out certain “interlocutory” orders which pursuant to this rule shall not be regarded as “interlocutory” orders.  The rule relates to the stipulation that leave to appeal is required for “interlocutory” appeals and its content is not applicable to Section 34B of the High Court Ordinance.

13.  This Court is of the view that the plaintiff’s appeal is obviously an abuse of process without the slightest prospect of success.  Allowing the plaintiff to continue with his appeal only wastes judicial resources and costs.  Therefore, we grant the defendant’s application and strike out the plaintiff’s notice of appeal.

Security for costs of appeal

14.  In the light of the above decision, we do not need to rule on the defendant’s application for security for costs of appeal.  Nonetheless, we are obliged to point out that in the case of Ho Ho Wah and The Incorporated Owners of Hoi Fu Court [2010] 1 HKLRD 272, the Court of Appeal has already held that an order for security for costs of appeal was not in contravention of Article 35 of the Basic Law which provides that Hong Kong residents shall have the right to institute legal proceedings in the courts.  That order does not involve any discrimination against the appellant on the ground of his impecuniosity thereby contravening Article 22 of the Hong Kong Bill of Rights, which provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law and the law shall prohibit any discrimination on any ground (including property).  The Court is to exercise its discretion in dealing with the application for security for costs of an appeal.  The Court has to take into account the prospect of success in the appeal.  It will not order an appellant to provide security for costs of the appeal merely because he/she is having financial difficulties; see To Kin Wah v Tuen Mun District Officer(unrep., CACV 358/2004, [2005] HKEC 1948) and Tolstoy Miloslavsky v UK (1995) 20 EHRR 442.

Restricted proceedings orders

15.  As the plaintiff has repeatedly made unwarranted applications and is likely to continue abusing legal proceedings, we now make “restricted proceedings orders” (“RPOs”) and order as follows:

1) Without the leave of Deputy High Court Judge Lok of the Court of First Instance, the applicant shall not commence any freshlegal proceedings (‘fresh proceedings’) with any documents of the originating proceedings in order to ask the Court to deal with any matters involving, relating to, touching upon or leading to the concluded proceedings as specified in the “RPOs”, namely High Court Constitutional and Administrative Law List No 55 of 2012 (HCAL No. 55 of 2012), Civil Appeal No 145 of 2012 (CACV No. 145 of 2012), High Court Action No 24 of 2013 (HCA No. 24 of 2013) and Civil Appeal No 99 of 2014(CACV No. 99 of 2014).

2) Any applicationby the plaintiff for leave to commence fresh proceedings which is subject to or may be subject to the “RPOs” (‘RPO leave application’) must be made in writing to the designated judge (and not to any other Judge or to a Master) enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced;

3) the plaintiff do notify in writing each intended defendant of his intention to make such application at least 7 days before filing an RPO leave application, enclosing a copy of the aforesaid draft document by which the fresh proceedings are intended to be commenced.  If a response is received by the plaintiff, he should file a copy thereof with his RPO leave application, and in any event, any intended defendant should be entitled (but is under no obligation) to place before the Court any written representations regarding any such intended proceedings of which he has notice;

4) in the event that the designated judge under the Order is unavailable to hear the RPO leave application, the same should be dealt with by another Judge designated by the Chief Judge of the High Court; and

5) all RPO leave applications and all matters ancillary thereto should be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs.

Costs

16.  We order that the plaintiff pay the defendant the costs of this application assessed at $50,000.