YUEN OI YEE LISA v. CHAROEN SIRIVADHANABHAKDI AND OTHERS

HCMP 1/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1OF 2017

(ON AN INTENDED APPEAL FROM DCCJ NO 1914 of 2015)

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JUDGMENT

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

1.  By her ex-parte Summons filed on 3 January 2017, the plaintiff applied for leave to appeal against the decision of Acting Chief District Judge Ko ("the Judge") made on 5 December 2016 refusing to grant her leave to commence proceedings. Her application for leave to appeal against the refusal was dismissed by the Judge on 19 December 2016.

2.  Having considered the documents filed and lodged by the plaintiff and her written submissions, we are of the view that the present application should be determined on paper without an oral hearing.   Pursuant to Order 59 rule 2A (5)(a) of The Rules of High Court, Cap 4A, we now give our judgment on the application. 

Background

3.  The background facts of this application had been set out in the earlier judgment of the Judge given on 16 November 2015.

4.  The action below stemmed from the termination of the employment of the plaintiff's husband (“Mr Lee”) with the 8^th Defendant in 2010.  As a result of the termination, Mr Lee sued the 8^th defendant in the Labour Tribunal in 2011 for wrongful termination (LBTC 588/2011).  The Tribunal found for the 8th defendant.  Mr Lee’s application for leave to appeal was dismissed by M Chan J on 6 June 2013. 

5.  Mr Lee then commenced an action in the Court of First Instance against the 8^th Defendant claiming damages in excess of HK$14 million under the Personal Data (Privacy) Ordinance, Cap 486 (“PDPO”) (HCA2045/2012).  Mr Lee’s case was that after the termination of his employment, he returned to the 8^th Defendant a notebook computer previously assigned to him for use.  Mr Lee claimed that the 8^th Defendant had, without the plaintiff's consent, retrieved from the computer personal data belonging to the plaintiff.  By a judgment dated 1 December 2014, Deputy High Court Judge Yee struck out Mr Lee’s claim both on jurisdiction ground and on the basis that the claim was untenable.  Mr Lee’s subsequent application to the Court of Appeal for leave to appeal out of time was dismissed on 21 May 2015 (HCMP371/2015).

DCCJ 1914/2015

6.  Then in 2015, the plaintiff commenced the action below (DCCJ 1914/2015) against the 1^st to 8^th Defendants, claiming HK$16 million in damages for:

(1) Loss of income and deterioration of living standard as a result of the termination of Mr Lee’s employment; and 

(2) Injury to feeling under s.66 of PDPO on account of the defendants’ unlawful use of her personal data.

7.  The 1^st, 3^rd, 4^th and 6^th Defendants are foreign parties.  The plaintiff has not obtained leave to serve the writ on them outside jurisdiction.  The Hong Kong defendants, viz. the 2^nd, 5^th, 7^th and 8^th Defendants, applied to strike out the plaintiff's claim.  By his judgment dated 16 November 2015, the Judge struck out the plaintiff's claim for disclosing no reasonable cause of action. 

8.  The Judge further imposed a restrictive proceedings order (“RPO”) on the plaintiff.  There have been in place several restricted application orders and restrictive proceedings orders against the plaintiff.  They were made in other proceedings involving the plaintiff. 

9.  The plaintiff's application for leave to appeal to the Court of Appeal against the Judge’s judgment of 16 November 2015 was dismissed by the Court of Appeal on 28 November 2016 (HCMP 2652/2016).

10.  Paragraph 1(a) of the RPO made by the Judge provides, inter alia, that:

“ [The plaintiff] whether in her personal capacity or in the name of her firm or a company in which she has interest, be prohibited from commencing any fresh proceedings, by whatever originating process, in the District Court concerning any matters involving or relating to or touching upon or leading to the proceedings herein and the proceedings in LBTC 588/2011 and HCA 2045/2012, whether against any of the defendants herein or their current or former legal representatives (including Messrs Hobson and Ma and any of their current or former employers, officers, partners, consultants, and counsel …) or otherwise, without the leave of the District Court.”

11.  Hobson and Ma ("HM") are the solicitors of the 2^nd, 5^th, 7^th and 8^th Defendants in the action below.  Mr Ma Wah Yan Billy (“Mr Ma”) and Mr Wong Chi Leung (“Mr Wong”) are the partners of HM.  The plaintiff had applied in the action below to join HM, Mr Ma and Mr Wong as additional defendants.  The application was dismissed by the Judge in his judgment of 16 November 2015.  The plaintiff had previously brought two actions, one in the District Court (DCCJ 1915/2015) and another in the Court of First Instance (HCA 1506/2015), against HM, Mr Ma and Mr Wong claiming HK$16 million damages pursuant to s.66 of PDPO.  In his judgment of 16 November 2015, the Judge also struck out DCCJ 1915/2015 for disclosing no reasonable cause of action.

12.  The plaintiff had also applied in the action below to join Mr Au Yeung Yau Ming Philip (“Mr Au Yeung”) as a defendant.  Mr Au Yeung had given a witness statement for the 8^th Defendant in the Labour Tribunal proceedings concerning the termination of Mr Lee’s employment.  The plaintiff's application to join Mr Au Yeung was also dismissed by the Judge in the 16 November 2015 judgment.

The plaintiff’s application for leave to commence fresh proceedings

13.  On 26 November 2016, the plaintiff applied ex parte to the Judge for leave to commence fresh proceedings in the District Court against Mr Ma, Mr Wong, HM and Mr Au Yeung. On 5 December 2016, the Judge dismissed the application on the ground that “the intended action would be a repetition of DCCJ 1914/2015 and DCCJ 1915/2015 which had been struck out.” 

14.  On 12 December 2016, the plaintiff applied for leave to appeal against the Judge's decision. The application was refused by the Judge on 19 December 2016.  

The present appeal

15.  Section 63A of the District Court Ordinance, Cap 336 provides that leave to appeal shall not be granted unless the applicant demonstrates to the court that the intended appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

16.  In the present application, the plaintiff's summons was accompanied by a draft notice of appeal and a five-page grounds of appeal together with one arch-lever box file of documents.  The plaintiff had also lodged further documents and filed two affirmations after she filed the application. 

17.  The bulk of the court papers and documents put in by the plaintiff bear no relevance to her present leave application.  The plaintiff essentially recites her past litigation history, exhibits voluminous correspondences she had with the court and others, in addition to mounting attacks on judges who had previously dealt with proceedings concerning her.  The plaintiff’s grounds of appeal and the written submissions come nowhere near showing that the Judge was in error in concluding that the intended fresh proceedings were mere repetition of DCCJ 1914/2015 and DCCJ 1915/2015, both of which had been struck out.  It is plain that the intended appeal in no way satisfies the threshold of reasonable prospect of success.

18.  We have also considered the background leading to the action below, the Judge’s 16 November 2015 judgment and the terms of the RPO.  There are no other reasons in the interests of justice for hearing the intended appeal.

Disposition

19.  Accordingly, we refuse to grant leave to appeal and dismiss the plaintiff's summons.

20.  As the plaintiff’s intended appeal is totally without merit, we further order, pursuant to Order 59 rule 2A(8) of The Rules of High Court, that the plaintiff may not request a reconsideration of our determination at an oral hearing.