YUEN OI YEE LISA v. CHAROEN SIRIVADHANABHAKDI AND OTHERS

DCCJ 1914/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1914 OF 2015

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DECISION

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1.  On 16 November 2015, I handed down my judgment in this action (“the Judgment”) to strike out the claim and to order a restrictive proceedings order (“RPO”) against the plaintiff (“Madam Yuen”).

2.  By her summons dated 23 November 2015, Madam Yuen applies for the following orders:

(a) Paragraph 1: “To listen to the tape recorder in order to confirm para 78 of ‘She admitted to have signed the certificates…’”

(b) Paragraph 2: “To pass other offence committed by Messrs Hobson & Ma, Justice Lam VP and Miss Susan Wong to the Secretary for Justice in one go together.”

(c) Paragraph 3: “To extend further time for my application for leave to appeal against His Honour Judge Ko’s Judgment delivered on 16^th November 2015 to the Court of Appeal pending an outcome from my legal aid application lodged on 22^nd October 2015.”

3.  By her written submissions dated 30 November 2015, Madam Yuen further applies to vary the costs order nisi granted in the Judgment.

Madam Yuen’s summons

4.  I would allow Madam Yuen to listen to the recording of the hearing on 23 October 2015.  She may contact my clerk to make prior appointment for her to do so.

5.  In para 106 of the Judgment, I referred my judgment to the Secretary for Justice for consideration as there is prima facie evidence that Madam Yuen has committed an offence in the course of these proceedings as set out in paras 73-79 of the Judgment.  It is inappropriate for her to take the opportunity to smear others and her application under paragraph 2 of the summons is dismissed.  In any event, it appears from her affirmation filed on 30 November 2015 that she has already lodged her own complaints to the Director of Public Prosecution and the Secretary for Justice.

6.  As decided in paras 26 & 29-39 of the Judgment, I refused to stay the proceedings pending the determination of Madam Yuen’s legal aid application made on 22 October 2015.  Subsequent to the handing down of the Judgment, the Director of Legal Aid filed a memorandum on 23 November 2015 to inform the court that Madam Yuen’s application has been refused.  At the hearing, Madam Yuen says that she is appealing against the refusal and a hearing has been scheduled for 19 February 2016.  She asks me to extend time until after that hearing so that she may be legally represented at her appeal against the Judgment. 

7.  In my view, there is no basis to extend time for Madam Yuen to apply for leave to appeal.  I have already commented in paras 37-39 of the Judgment that the underlying reason for her legal aid application has nothing to do with these proceedings.  A fortiori, her legal aid appeal will have no bearings on her intended appeal against the Judgment.  Her application under paragraph 3 of the summons is therefore dismissed.

Madam Yuen’s application to vary the costs order nisi

8.  Madam Yuen should have applied to vary the costs order nisi by means of an inter-partes summons: Hong Kong Civil Procedure 2016, para 32/6/9A.

9.  Since the other side is not taking issue on the irregularity and has come prepared, I have decided to waive the irregularity and entertain the argument.

10.  In her written submissions, Madam Yuen argues that it is pre-mature to make a decision on costs because:

(a) She intends to appeal against the Judgment to the Court of Appeal and thereafter to the Court of Final Appeal.

(b) Costs should follow the “event” and the event being her claim under section 66 of the Personal Data (Privacy) Ordinance, Cap 486 (“the PDPO”).  According to her, the limitation period for her to file such a claim will not expire until 6 years after 5 May 2011.

(c) With the help of the police and the Secretary for Justice, her husband may recover the lost witness statement in LBTC 588/2011 and apply to vary the costs order made in that proceeding.

(d) Her husband (who has been adjudged bankrupt) has written to his trustees-in-bankruptcy in an attempt to convince the trustees to appeal against his bankruptcy order.

It should be noted that Madam Yuen does not otherwise dispute the entitlement of the other side to indemnity costs: see paras 110-111 of the Judgment.

11.  In my view, none of the points taken by Madam Yuen provide justification to defer the decision on costs.  My order to strike out this action will bring an end to these proceedings and this is the opportune moment to determine who should be responsible for the costs of these proceedings.  As Madam Yuen has lost her claim, she should pay for the costs of the other side.  That is the gist of “costs follow the event”.  The incidence of costs in these proceedings does not depend on the result of some other proceedings such as Madam Yuen’s intended claim under s 66 of PDPO, LBTC 588/2011 or the intended appeal of Madam Yuen’s husband against his bankruptcy order.

12.  In the premises, I confirm the order nisi and order Madam Yuen to pay the applying defendants, BM, WCL, H&M and PAY the costs of these proceedings on an indemnity basis to be taxed if not agreed.

Costs

13.  As to the costs of the present hearing, three out of the four applications of Madam Yuen have been dismissed.  The successful application could have been dealt with administratively by ex parte letter and does not justify an inter-partes application.

14.  I order Madam Yuen to pay the costs of the other side summarily assessed on party and party basis at $4,200.