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

CAMP 281/2019

[2020] HKCA 208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 281 OF 2019

(ON AN INTENDED APPEAL FROM HCMP NO 2155 OF 2018)

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JUDGMENT

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Hon Chu JA giving the judgment of the Court:

1.  This is the plaintiffs’ application for leave to appeal the decision of Au Yeung J (“the Judge”) made on 25 October 2019 refusing to give leave to appeal out of time against the Judge’s order made on 21 March 2019 (“the Injunction Order”) restraining the plaintiffs from serving documents in HCMP 2155 of 2018 on Ngai Ngok Leong (“NNL”), who is not a party to the action, without the court’s approval.

2.  Having considered the papers filed in this application and the written submission, we consider it is appropriate to determine the application without a hearing on the basis of the written submission only, pursuant to Order 59 Rule 2A(5)(a) of the Rules of the High Court, Cap. 4A. 

HCMP 2155 of 2018 (“the Action”)

3.  On 7 December 2018, the plaintiffs issued an originating summons in the Action against the defendants. In respect of the 1^st named defendant, Ngai Ngok Pang, they seek an injunction on the ground that he had caused nuisance to them, and also compensation for injury to feelings.  As against the 2^nd named defendant, Ngai Yu Ling Mony, the plaintiffs seek an order that she issues a statutory demand to them and signs her English name on it, and to pass the default judgment of the 2^nd named defendant, if any, to the Secretary for Justice for consideration.

4.  The plaintiffs then took out an application for interlocutory injunction against the defendants, which was returnable on 4 January 2019.  Instead of serving the summons on the defendants, the plaintiffs served it on NNL, at his personal address.  On 2 January 2019, NNL wrote to the court objecting to the service made to his address (“NNL’s Letter”).  At the hearing on 4 January 2019, the Judge dismissed the summons on various procedural grounds. The Judge further told the plaintiffs through the 1^st named plaintiff who was present in court to refrain from serving documents of the Action on NNL.

5.   On 30 January 2019, the plaintiffs issued another summons in the Action to seek the following relief:

 (1) An order that NNL files an affidavit to confirm his signature and knowledge of NNL’s Letter;

(2) An order that the defendants provide original address proof for a period of about three months before 2 January 2019 in order to prove that NNL lied in NNL’s letter; and

(3) An order that the originating summons be re-listed for hearing on an early date. 

The Judge’s decision

6.  The Judge heard the Summons on 21 March 2019. At the conclusion of the hearing, she dismissed the summons and further made the Injunction Order restraining the plaintiffs from serving documents on NNL.  The Judge’s reasons are encapsulated in [17] to [27] of the decision[1]:

“Application for Ngai Ngok Leong to file an affidavit

17. Mr Ngai Ngok Leong was and is not a party to this case. The 1st 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 1st 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 1st 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 1st 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 1st 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.”

Application for leave to appeal

7.  The time for the plaintiffs to apply for leave to appeal against the Judge’s order, including the Injunction Order, expired on 4 April 2019.  Five months later on 4 September 2019, the plaintiffs took out a summons to apply for leave to appeal against the Injunction Order out of time.   It should be noted that by then the originating summons in the Action had been dismissed by the Judge.[2] 

8.  By her decision handed down on 25 October 2019[3], the Judge dismissed the plaintiffs’ application for leave to appeal out of time.

9.  On 8 November 2019, the plaintiffs took out the present summons to apply for leave from the Court of Appeal to appeal against the Judge’s decision of 25 October 2019.  

Reasons for this Court’s decision

10.  Under section 14AA of the High Court Ordinance, Cap 4, leave to appeal will not be granted unless the court is satisfied that: (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospect involves the notion that the prospect of success must be “reasonable” and therefore more than “fanciful” without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at [17].

11.  The plaintiffs did not set out any grounds of appeal in the summons.  No draft grounds of appeal were attached to the summons.  Instead, the summons stated that draft grounds of appeal would be filed pending a reply from the police.

12.  The plaintiffs lodged a written submission signed by the 1^st named plaintiff on 6 January 2020. In it, they contended that NNL lied in the NNL’s Letter resulting in the Injunction Order being issued against them, and repeated the arguments made before the Judge relating to the service of documents and the allegation of forgery against the 1^st named defendant.  The submission also sought to produce new evidence that included the plaintiffs’ letters to the police and to the court repeating their complaints and accusations against the defendants and NNL.  It further indicated the plaintiffs intended to commence new proceedings against NNL and the defendants.

13.  In our judgment, none of the matters put forward in the written submission constitute viable grounds of appeal against the Judge’s decision to refuse leave to appeal out of time. 

14.  The plaintiffs’ application for leave to appeal was five months late.  This is serious delay. No explanation was given for the delay.  The plaintiffs have to demonstrate that the intended appeal against the Injunction Order enjoys a good prospect of success.

15.  We note that the Action is not the first or only piece of litigation that the plaintiffs brought against the defendants.  Like the Judge, we see no basis at all for the plaintiffs to serve the papers in the Action on NNL, who is not a party to the Action.  They effected service on NNL without first obtaining the leave of the Court, and did so again despite being told by the Judge to refrain from so doing.  In these circumstances, the Judge could not be faulted for making the Injunction Order to see to it that the plaintiffs would not repeat the wrongdoing. 

16.  Further, given that the originating summons in the Action had been dismissed, the plaintiffs’ intended appeal serves no useful purpose.

17.  For the above reasons, the plaintiffs’ intended appeal against the Injunction Order has no prospect of success.  There is also no other reason in the interest of justice why the appeal should be heard.  The Judge was correct to refuse leave to appeal out of time.  It follows that the plaintiffs’ present application for leave to appeal should be dismissed. 

Disposition

18.  Accordingly, we dismiss the plaintiffs’ summons dated 8 November 2019. 

19.  We make no order as to the costs of this application as the plaintiffs had put it forward as an ex parte application.

20.  As the plaintiffs’ application is totally without merits, we make an order pursuant to Order 59 rule 2A (8) of the Rules of the High Court that no party may under rule 2A (7) request the determination of this Court to be reconsidered at an oral hearing.