YUEN OI YEE LISA v. LAM KIT SEONG MIRANDA

HCB8954/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS NO.8954 OF 2007

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D E C I S I O N

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A. Introduction

1.     Ms Lisa Yuen Oi See used to work as an accountant in Roberlam Colour Ltd between 1995 and 1999.  Years after the termination of her employment, Ms Yuen commenced various actions against the owner of her former employer, Mr Robert Lam and parties associated with him.  One of such actions was HCA2107/2006, in which Ms Yuen sued Ms Miranda Lam Kit Seong, Mr Lam’s sister, for HK$560,000 allegedly misappropriated by Ms Lam from her brother and general or punitive damages for breach of contract of HK$3,600,000.

2.     By judgment dated 8 August 2007, Lam J, among other things, found that there was no reasonable cause of action in HCA2107/2006.  The judge accordingly struck out the claim and dismissed the action.  By order dated 22 August 2007, Lam J further ordered Ms Yuen to pay forthwith Ms Lam the costs of her application assessed at HK$528,924.

3.     A statutory demand for those costs was served on Ms Yuen personally on 20 September 2007.  But Ms Yuen failed to pay up.  Ms Lam then presented a bankruptcy petition against her on 18 October 2007.

4.     Ms Yuen opposed the petition, which was returnable on 19 December 2007.  Ms Yuen then took out six summonses of various dates.  In essence, she asked that the hearing date on 19 December 2007 be vacated, the petition be adjourned and to be heard with HCB9860/2007, and the hearing date on 8 January 2008 (as to which see below) be vacated.

5.     By summons dated 21 November 2007, Ms Lam applied for an order restraining Ms Yuen from taking out any applications in these proceedings whether before or after the substantive hearing for a bankruptcy order against her except with leave (“the RAO Application”).

6.     Most of the summonses taken out by Ms Yuen and the RAO Application went before Lam J on 3 December 2007.  The judge vacated the hearing date on 19 December 2007 and adjourned all the matters to 8 January 2008.  He also gave directions for Ms Yuen to file an affirmation in opposition to the bankruptcy petition and the RAO Application by 3 January 2008.

7.     Ms Yuen did not comply with Lam J’s direction.  What she did instead was to take out three further summonses, repeating her applications that the hearing date on 8 January 2008 be vacated and the matters be transferred back to Lam J.  By the latest summons dated 7 January 2008, supported with an affirmation, she in effect opposed the petition by alleging that she has a claim against Ms Lam for HK$1 million.  She has commenced HCA4/2008 under another name, Mrs Elizabeth Lee (Ah Foon), without leave of the court, contrary to the RPO made by Lam J dated 3 December 2007.

B. Directions for the petition

8.     Mr Pang, counsel for Ms Lam, after taking instructions, asked that leave be given to Ms Lam to file an affirmation in reply.  Accordingly, I make the following directions :

(1)	leave to Ms Yuen to file the affirmation in opposition dated 7 January 2008 out of time;
(2)	leave to Ms Yuen to file a further affirmation in opposition within 7 days from today;
(3)	leave to Ms Lam to file an affirmation in reply within 14 days thereafter;
(4)	no further affirmation to be filed without leave;
(5)	the petition be adjourned to 22 February 2008 at 10 a.m. before Chung J for substantive hearing (with 2 hours reserved); and
(6)	costs be reserved.

C. Ms Yuen’s summonses

9.     I next turn to Ms Yuen’s summonses.  The applications raised by them are :

(1)	to strike out the bankruptcy petition as an abuse of process;
(2)	to have this petition to be heard with HCB9860/2007;
(3)	to adjourn today’s hearing date because she has to answer bail imposed by the Immigration Department; and
(4)	to transfer the present petition and the RAO Application back to Lam J.

10.     Ms Yuen said that all the summonses could be dismissed with costs against her except the one for transferring the RAO Application to Lam J.  She said that Lam J is familiar with the background of the litigations and is in the best position to deal with the RAO Application.  That would also save costs and time.

11.     I agree with Mr Pang that Ms Yuen’s application amounts to forum shopping, which is not permissible.  I see no substance in her submissions and see no reason why the RAO Application cannot be dealt with by another judge other than Lam J.  This application is therefore dismissed with costs.

12.     The net result is that all Ms Yuen’s summonses are dismissed with costs against her.

D. The RAO Application

13.     Finally, I come to the RAO Application.

14.     An RAO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the court’s process by persistently making unwarranted applications to the court in certain existing proceedings, whether before or after judgment, in circumstances where an RAO would be a proportionate response.  See Ng Yat Chi v. Max Share Ltd (2005) 8 HKCFAR 1.

15.     I have carefully all the circumstances.  As noted, Ms Yuen has taken out nine summonses since the commencement of the present bankruptcy proceedings and has in the course repeated most of her applications.  Save and except the one that related to the dismissal of the petition on the ground that it is an abuse of process, none would really advance any of the real issues in the petition a bit.  As such, all those summonses are unwarranted and have generated unnecessary and wasted costs.  For the one that concerned the dismissal of the petition, Ms Yuen in the end did not pursue it without any good reason given.  This casts grave doubt on her real intention of taking out that summons in the first place.

16.     Having read the materials that Ms Yuen has filed with the court and having heard her today, I am left with the distinct impression that what Ms Yuen is really interested in taking out all the summonses is this. For reasons best known to her, the petition and the RAO Application must be dealt with by Lam J.  This ulterior motive is not permissible.  And it must be stopped.

17.     How Ms Yuen has conducted the petition so far clearly shows that she has abused the court’s process and will continue to do so by taking out unwarranted applications in these proceedings in pursuing her ulterior motive as aforesaid.  It is appropriate and indeed necessary to make an RAO against her.  I will therefore make an order in terms of the draft order as attached to the summons dated 21 November 2007 with the minor amendment that the identity of the designated judge be changed to me or in my absence, the listing judge.  A penal notice should also be indorsed with the order to be served on Ms Yuen.

E. Costs

[Submissions on costs]

18.     Costs that I have ordered against Ms Yuen today should all be assessed under Order 62, rule 9(4)(b) instead of being taxed in the future.  And they should be assessed on an indemnity basis.

19.     Having heard the parties, I will assess the costs of the RAO at HK$52,000 and the costs of Ms Yuen’s summons at HK$2,000 each, totalling HK$18,000.  The total costs of HK$70,000 are to be paid by Ms Yuen forthwith.