YUEN OI YEE LISA v. NGAI NGOK PANG AND ANOTHER

HCMP 2829/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2829 OF 2012

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J U D G M E N T

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The applications

1.  On 2 May 2013, I heard the following matters in these proceedings and reserved my judgment:

(1) the originating summons filed on 17 December 2012;

(2) the defendants’ summons filed on 27 December 2012;

(3) the plaintiff’s summons filed on 2 January 2013;

(4) the plaintiff’s summons filed on 7 January 2013; and

(5) the plaintiff’s summons filed on 22 January 2013.

This is my judgment on these matters.

2.  There is separately a document entitled “summons” dated 14 January 2013 which was however never issued and sealed with the seal of the court (as required by RHC Order 32 rule 2(1)) and was only annexed to the affirmation of the plaintiff dated 14 January 2013 as an exhibit.  Nor was this “summons” dealt with by Deputy Judge Lok at the directions hearing on 15 January 2013 or in any other way listed for hearing. I do not think this “summons” gave rise to any properly constituted application that requires my determination.  In any event, many of the orders purportedly sought by the plaintiff by that “summons” are the same as those sought in her other summonses.

3.  The plaintiff did not appear at the hearing on 2 May 2013.  Apparently she had another matter to attend to at the Administrative Appeals Board on that morning.  Her previous applications for adjournment of the hearing in these proceedings had been refused by Au‑Yeung J.  The plaintiff delivered written submissions to this Court on the morning of 2 May 2013 indicating that she was content for the hearing to proceed in her absence and asking the Court to take into account her written submissions.  Accordingly, at the hearing, the 1^st defendant made oral submissions to me on the above matters.  I have taken into account the plaintiff’s written submissions.

Background

4.  The plaintiff’s daughter is the tenant of the premises at Flat LC, 47th floor, Tower 1, Le Prestige, 1 Lohas Park Road, Tseung Kwan O, New Territories (“the Property).  She works as a registered medical practitioner in a public hospital.  The defendants are the landlords.  They had entered into a tenancy agreement with the plaintiff’s daughter in respect of the Property for a term of two years from 1 July 2011 to 30 June 2013.

5.  Disputes had arisen between them.  It appears that disagreement first arose because in July 2011, shortly after moving into the Property, the tenant and the plaintiff, without the landlords’ approval, caused one of the air conditioners in the Property to be repaired by a Fortress technician at a cost which the landlords considered excessive.  The landlords took the view that since the Property was a flat in a newly completed development, the management office or the developer should be responsible for the repairs.

6.  Thereafter there was apparently some heated communication between the parties and their relationship broke down.  At one stage the landlords threatened to report the tenant’s conduct to the Medical Council.  Some months later, on 5 June 2012, the landlords gave one month’s notice to terminate the tenancy.  The tenant treated that notice as invalid and she herself gave notice to terminate the tenancy on 31 August 2012.  She also stopped paying rent from July 2012, intending apparently to use the two months’ rental deposit to set off her liability for rent.

7.  The landlords then brought proceedings against the tenant in the Lands Tribunal for arrears of rent and possession of the Property.  These proceedings are numbered LDPD 1675/2012, LDPD 2002/2012 and LDPD 3030/2012.

8.  The plaintiff alleged that the way in which the landlords had conducted the Lands Tribunal proceedings, including the way they had served various documents on her daughter, amounted to unwarranted disturbance of her daughter. The plaintiff therefore issued the originating summons herein against the landlords in December 2012, with a view to putting a stop to and obtaining redress for what she regarded as their wrongful behaviour.

9.  The originating summons has since generated a large number of interlocutory applications, mostly taken out by the plaintiff, so much so that on 1 February 2013, Au-Yeung J made against the plaintiff a restrictive application order (“RAO”) and a restricted proceedings order (“RPO”) concerning matters relating to these proceedings (on the legal basis explained in Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1).  In particular, the plaintiff is restrained from making any further application in these proceedings, whether before or after their conclusion, without leave of Au-Yeung J.

10.  Subsequent to the hearing before me on 2 May 2013, the plaintiff sent numerous letters by facsimile to the court.  In particular, in her letter dated 13 May 2013, she asked for the proceedings herein (wrongly referred to as HCA 2829/2012) to be discontinued.  Au‑Yeung J has declined to give leave for any application to be made by the plaintiff to discontinue these proceedings.

11.  I shall now discuss and state my conclusions on each of the matters heard on 2 May 2013.

Originating summons

12.  In the originating summons, the plaintiff initially prayed for the following reliefs:

“(A) To order the hearing of this application to be NOT OPEN TO PUBLIC and an Official Solicitor to act for Mr. Ngai Ngok Pang for this proceedings and LDPD 3030/2012 filed and served by the defendants on 14^th December, 2012.

(B) To cease Mr. Ngai Ngok Pang disturbing my daughter and family members for the rest of tenancy period which will be ended on 30^th June, 2013 or even after.

(C) To stop the defendants complaining my daughter to the Medical Council or Hospital Authority due to an act done by me on 17^th July, 2011 i.e. to have allowed a technician entering the premises and repairing an air conditioner provided by the defendants while my act done was an instruction given to me by Mr. Ngai Ngok Pang nothing to do with my daughter and her employer i.e. the Medical Council or Hospital Authority at all.

(D) To cease Mr. Ngai Ngok Pang entering the public areas and/or enjoying the facilities provided by the club house of our premises when Mr. Ngai Ngok Pang had used the quotas belonged to our premises when my daughter had paid full rental for the premises which have 3 bedrooms contained therein not two bedrooms (each bedroom entitles to two residents’ cards while Mr. Ngai Ngok Pang had kept two residents’ cards without our consent and knowledge)

(E) To order Mr. Ngai Ngok Pang returning the two residential cards to my daughter or the management office with immediate effect.”

13.  She further claimed in the originating summons the following reliefs and remedies:

“(a) Injury to feelings to be assessed by a Judge including but not limited to an amount of HK$110,400.00 being the use of two residential cards by Mr. Ngai Ngok Pang and his friend without the knowledge and consent of my daughter.

(b) All costs and disbursements.”

14.  By her affirmation dated 28 March 2013 made pursuant to the Order of Au-Yeung J dated 26 March 2013, the plaintiff confirmed that she abandoned paragraph 19 (in part), paragraphs (A), (C), (D) and (E) of the prayers, and reliefs and remedies (a) in the Statement of Claim.

15.  What remains being sought by the plaintiff by way of the originating summons is therefore only paragraph (B), ie a claim for an injunction to restrain the 1^st defendant “from disturbing the plaintiff’s daughter and family members for the rest of tenancy period which will be ended on 30^th June, 2013 or even after”, and costs.

16.  I reject the plaintiff’s claim for the following reasons.

17.  The plaintiff is not the tenant and not the person said to be disturbed by the defendants.  There is nothing to show that the tenant is not a person of full capacity.  The plaintiff has no standing to make a complaint or seek relief on the tenant’s behalf.

18.  There is no suggestion, let alone evidence, that the defendants disturbed the plaintiff’s family members other than her daughter the tenant.  There is therefore no basis for the plaintiff to claim an order to restrain the defendants from disturbing the plaintiff’s family members collectively.

19.  As regards the matters and events relied upon by the plaintiff in the Statement of Claim:

(1) The 1^st defendant’s letter to the tenant dated 29 August 2011 was a complaint that she had caused unauthorised repairs to be done to one of the air conditioners in the Property. While there was a threat to report the tenant to the Medical Council, I do not see that it gives rise to any ground for the injunction sought, in particular in circumstances where the tenant herself has not made any application to this court.

(2) The 1^st defendant’s letter to the tenant dated 5 June 2012 was a notice informing her that the landlords would terminate the tenancy on 5 July 2012 with one month’s notice.

(3) The 1^st defendant’s letter to the tenant dated 1 July 2012 was a reply to the tenant’s letter of the same date.  In her own letter, the tenant had argued that the landlords’ notice of termination was invalid as it had been signed only by the 1^st defendant, and she herself gave notice to terminate the tenancy on 31 August 2012.  In their reply, the landlords contended that their notice was valid, but agreed on compassionate grounds to allow the tenancy to run to the end of July 2012.  I cannot see how the above letters can possibly give the plaintiff any cause of action for the injunction now sought by her.

(4) The claim commenced by the landlords in the Lands Tribunal in proceedings LDPD 1675/2012, LDPD 2002/2012 and LDPD 3030/2012 are proceedings between the landlords and the tenant, and do not give rise to any cause of action in favour of the plaintiff.

(5) The 1^st defendant personally served the documents relating to LDPD 3030/2012 at the Property on 15 December 2012.  However, on the plaintiff’s own pleaded case, the 1^st defendant did so in the company and under the supervision of two building management officers or security guards of the residential tower.  No one from the Property or from the plaintiff’s family saw the 1^st defendant on that occasion.  The plaintiff’s allegation that the 1^st defendant was wearing just underpants and a T-shirt was simply incredible, and not supported by any proper evidence.

(6) The plaintiff alleged that each residential unit was entitled to two resident cards per bedroom in the unit, and accused the 1^st defendant of having kept and withheld from the tenant two of the resident cards for the development Le Prestige.  This is a matter between the landlords and tenant and does not seem to me to be a basis for the plaintiff’s claim for the injunction sought.

20.  In my judgment, the matters pleaded by the plaintiff, whether taken singly or in combination, are insufficient to establish any tortious or otherwise unlawful conduct against the plaintiff or the tenant such as to justify the issue of an injunction.

Defendants’ summons filed on 27 December 2012

21.  By summons filed on 27 December 2012, the defendants seek an order striking out and terminating the plaintiff’s claim on the ground that it has no basis.  They also counterclaim against the plaintiff damages in the sum of HK$30,000 for each of them for the mental distress and injury caused by her institution of groundless proceedings.  In their affirmation, they said they would leave the amount of damages to the court.

22.  There is in my view some merit in the defendants’ strike-out application.  Given my conclusion on the originating summons above, however, it is unnecessary to deal with their application or make any strike-out order.  Accordingly I would make no order on that part of their application.

23.  I would dismiss the defendants’ counterclaim for damages, on the grounds that there is no general tort based on malicious institution of civil proceedings and that the loss of time and the expenses incurred by the defendants in dealing with the plaintiff’s claim can be addressed by an order for costs.

Plaintiff’s summons filed on 2 January 2013

24.  By summons filed on 2 January 2013, the plaintiff seeks the following orders:

“1. To cease Mr. Ngai Ngok Pang to contact or write to my daughter at her hospital.

2. To grant a RAO / RPO against Mr. Ngai Ngok Pang.

3. To stop Mr. Ngai Ngok Pang to touch upon & mingle my 2 proceedings of ESCC 5404/2008 & HCMP 2390/2008 with LDPD 2002/2012, LDPD 3030/2012 and this proceedings or spread it over with and to the third parties.

4. To obtain the source of information from Mr. Ngai Ngok Pang for my Hunger Strike and pass the same to the Secretary for Justice and Police for investigation.

5. To inform the employer of Mr. Ngai Ngok Pang if an injunction order, a RAO / RPO to be granted against Mr. Ngai Ngok Pang subsequent to my applications made in this proceedings.”

25.  I reject the plaintiff’s application in paragraph 1 of this summons for an injunction restraining the 1^st defendant from contacting or writing to the tenant at the hospital where she works.  The tenant herself has not made any such application.  The plaintiff has no standing to make such application.

26.  I also reject the plaintiff’s application under paragraph 2 of the summons for an RAO and RPO against the 1^st defendant.  These orders are made in exercise of the court’s inherent jurisdiction and aimed at preventing abuse of the court’s processes.  No ground for any such order against the defendants, as explained in Ng Yat Chi v Max Share Ltd, supra, has been made out.

27.  It follows that the plaintiff’s application for an order for the 1^st defendant’s employer to be informed of such injunction and RAO and RPO falls away.

28.  I refuse to make any order as per paragraph 3 of the summons.  There is no factual or legal basis for any such injunction.  In any event, these proceedings having come to an end with my determination of the originating summons, there is no need to deal with any alleged attempt to “mingle” these proceedings with other proceedings.

29.  I refuse the plaintiff’s application for an order requiring the 1^st defendant to disclose the source of his information about the plaintiff’s hunger strike. The plaintiff has no cause of action for such information, nor is the disclosure of such information necessary for the fair and just resolution of the originating summons.

Plaintiff’s summons filed on 7 January 2013

30.  By summons filed on 7 January 2013, the plaintiff seeks the following orders:

“To expedite this proceedings same as DCCJ 273 of 2011 as follows:-

1. To ask the defendants to sign an undertaking or give them an injunction order of NOT to disturb my daughter at work and/or my family members.

2. To grant a RAO and RPO against the defendants especially Mr. Ngai Ngok Pang.

3. To hear the trial after 60 days from 22^nd April, 2013 i.e. after 24^th June, 2013.”

31.  I have no power to require the defendants to sign any undertaking.  That part of the plaintiff’s application is misconceived.  As I have concluded that the plaintiff has no cause of action for the final injunction sought in her originating summons, I also refuse to grant any injunction pursuant to this interlocutory summons against the defendants.

32.  For the reason outlined above, I refuse to make a RAO or RPO against the defendants.

33.  Paragraph 3 of the summons was already implicitly rejected when the court set the matter down for hearing on 2 May 2013.

Plaintiff’s “summons” dated 14 January 2013

34.  Although, as explained in paragraph 2 above, the “summons” dated 14 January 2013 was never properly issued, I shall briefly mention it here for completeness.  This “summons” states as follows:

“To discontinue this proceedings with immediate effect on 15^th January, 2013 if Mr. Justice David Lok gives orders as follows (either to ask the defendants to sign an undertaking or order them for an injunction order one way or another) or else adjourn the trial to be taken after March 2014:-

1. To cease the defendants complaining my daughter to the Medical Council or Hospital Authority due to their letter addressed to me, among others, dated 29^th August, 2011 before or after our tenancy.

2. To cease the defendants writing, contacting and/or disturbing my daughter at her hospital in order not to affect her morale at work (in order not to affect the patients when my daughter is having heavy duties and responsibilities to save people’s life in casualty every moment).

3. To grant a RAO and RPO against the defendants.

4. To order the defendants to return the 2 Octopus to us and/or the management office when my daughter had paid rents to them for the 3 bedrooms in the premises but not 2 bedrooms.”

35.  For the reasons already given above, paragraphs 1 to 3 of this document do not set out any valid application.  As for paragraph 4, it falls away with the plaintiff’s abandonment of paragraph (C) in the prayer of the Statement of Claim.

Plaintiff’s summons filed on 22 January 2013

36.  By summons filed on 22 January 2013, the plaintiff seeks the following orders:

“To give an urgent interim injunction order against Mr. Ngai Ngok Pang with immediate effect due to his abnormal behaviours by sending me and my daughter altogether 12 SMS (mostly happened at midnight to me) since the last hearing held on 15^th January, 2013 until 2:00 A.M. (midnight) today which my daughter and I had reported to the police under a file no.:TKO RN 13002231, as well as sending two more letters to my daughter at work when my daughter decided NOT to open them but give them to the court for necessary action, if any.

To order Ms. Ngai Yu Ling Mony must be presented this time to watch out or control her brother’s mental sickness to get worse, due to her absence on 15^th January, 2013.”

37.  Given that the originating summons has now been heard, both paragraphs which are interim applications are academic.  In any event, as I have concluded the originating summons is to be dismissed, the application for the interim injunction also fails.  Further, the 1^st defendant denies having sent the messages as alleged and states that the telephone number appearing in the plaintiff’s exhibits is not his or the 2^nd defendant’s.  The 1^st defendant also denies he knew that the plaintiff had the number as shown in the exhibit to her affirmation.  In my view, the plaintiff’s factual allegations are not made out.

Conclusion and Orders

38.  There will therefore be the following orders:

(1) The plaintiff’s originating summons and her summonses filed on 2, 7 and 22 January 2013 respectively are dismissed with costs (including any costs thereon previously reserved).

(2) No order is made on the defendants’ summons to strike out the plaintiff’s claim and terminate the action.  The counterclaim for damages for mental distress and injury is dismissed.  There is to be no order of costs on the defendants’ summons.

39.  I shall summarily assess the costs payable by the plaintiff to the defendants.  Bearing in mind the limit of $200 per hour specified in RHC Order 62 rule 28A(3) and the very large volume of paper the plaintiff had produced which the defendants needed to read and understand and respond to, I assess those costs at $16,000.  This amount includes the defendants’ relatively small copying expenses and travelling expenses.