YICK MING KIT v. SECURITIES AND FUTURES COMMISSION

HCA 861/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 861 OF 2006

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J U D G M E N T

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It is sad to note that the Plaintiff, Mr. Yick Ming Kit, who erroneously believes that he is right, institutes one action after another and has incurred more and more legal costs that he has to pay.  As Registrar of High Court I have come across a number of such cases conducted by litigants in person.  I feel sorry for them.

2. In 2004, the Plaintiff took legal action HCA 2966 of 2004 against the Defendant.  On 22 July 2005 his claim was dismissed by Deputy Judge To and was ordered to pay costs taxed by Master R. Yu in a sum of $158,916.84.  He appealed from the judgment and his appeal was dismissed by the Court of Appeal on 18 May 2006.

3. Before the dismissal of the appeal, the Plaintiff instituted the present action against the Defendant asking the Defendant to pay him the amount of costs that he has to pay under HCA 2966 of 2004 i.e. the first action, on the ground that the Defendant has no right to retain lawyers in the said action and to incur such expenses that he is liable to pay.

4. He relies on Section 9(3) of the Securities and Futures Ordinance (Cap. 571) which states:

“(3)   The Commission may engage consultants, agents and advisers to assist it in the performance of its function.”

He refers us to the heading of that section 9 which states “Staff of Commission”.  He argues that the heading qualifies and limits the power of the Defendant: the Defendant could only use its own employees to defend the first action.  Similarly, he argues that Clifford Chance should not be engaged to defend the present proceedings.

5. According to Section 18(3) of the Interpretation and General Clauses Ordinance (Cap. 1), headings do not have any legislative effect and shall not in any way vary or limit the interpretation of any Ordinance.  It is trite to say that headings should not be used for construction of the meaning of any legislation if the contents of which are unambiguous and clear.  The meaning of subsection 9(3) is clear: the Defendant, being a statutory body, has the right to engage consultants, agents and advisers.  I do not find the heading can assist the Plaintiff.

6. In his written submission he also argues that the Defendant being a statutory public body has failed to meet its pledge:

(a)   it has failed to prosecute those who are in breach of the law; and

(b)   it does not deal with the civil proceedings personally by using its own staff to defend the action taken by him.

7. I am not sure what he means when he alleges that the Defendant has failed to prosecute who are in breach of the law as he has given no particular.  In any event, his claim in this action, as I have set out in paragraph 3 above, is related to costs of HCA 2966 of 2004.  I do not consider such argument is relevant in the present proceeding.

8. As to the allegation that the Defendant should not retain outsiders to defend for it, I have made a decision thereon in paragraph 5 hereof and I do not intend to repeat it.

9. I consider that the present action taken by the Plaintiff is to circumscribe the Defendant’s right to enforce the order made by Deputy Judge To to pay the costs of HCA 2966 of 2004 assessed by Master R. Yu in the sum of $158,916.84.  It is an abuse of the court proceedings.

10. He also raises the issue about use of English in conducting the proceeding.  At the hearing, I informed the Plaintiff that since both English and Chinese are official languages in Hong Kong, the court has discretion to use either of the languages.  I find no issue in it.  He has not sought to review or to take any step against the decision by Master R. Yu in the taxation hearing.  I have no power to interfere with his decision.

11. For the above reasons I strike out the Plaintiff’s claims in this action and dismiss the whole action.

12. Pursuant to Order 42 rule 5B(6) I make an order nisi as to costs:

(a)   That the Plaintiff pays the Defendant’s costs of this action (including the costs of this application and also the costs reserved) to be assessed by me, if not agreed.

(b)   For the purpose of the assessment,

(i)    the Defendant shall prepare a statement of costs and serve on the Plaintiff and file with the court at least 21 days before the hearing;

(ii)   The Plaintiff shall within 14 days thereafter serve on the Defendant and file with the court a list of his objection; and

(iii)   The length of hearing of the assessment is estimated to be an hour.

(c)   This order shall become absolute 14 days after the date of this order unless any party applies in writing within the said 14 days for variation of this order.