WONG YU CHO ROLLY t/a MARCO POLO and CHINA OVERSEA TECHNICAL DEVELOPMENT v. NEWTON CHAN

DCCJ 146/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 146 OF 2007

______________________

______________________

DECISION

1.      The Plaintiff commenced this action against the Defendant for the latter’s conduct of the proceedings as the government counsel for the Plaintiff’s opponent in the hearing of another action.  The Defendant applied to strike out the Plaintiff’s claim.  I heard the application.  On 19 September 2007, I handed down my decision allowing the application.  The action was dismissed.  The Plaintiff now applies for leave to appeal against my decision.

2.      The hearing was conducted in Chinese but parties agreed that my decision would be delivered in English.

3.      Leave to appeal would be granted unless there is no realistic prospect of success in the intended appeal: see Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538.  Leave may also be granted if the intended appeal concerns a question of general principle or importance which requires the appellate court to decide for the public advantage: see Hong Kong Civil Procedures at 59/14/7.

4.      The major reasons for my decision in September are as follows:

(1)	There is no reasonable cause of action against the Defendant arising out of his submissions made in his capacity as counsel for the Plaintiff’s opponent before the court in the other action.
(2)	Entertaining the Plaintiff’s claim against the Defendant would be tantamount to re-opening the arguments of the parties in that other action.  This is abuse of process.

5.      The Plaintiff insists that he has a valid cause of action against the Defendant in negligence and for misleading the court.  It is clear from his amended statement of claim in the present action that the Plaintiff was alleging what happened in the hearing before HH Judge Wong on 21 December 2006 in DCCJ Action No. 4492/2004 (see also paras.12 and 15 of my decision).  However, the Plaintiff now stresses that he has been intending to refer to what happened in a hearing before Registrar Chan in HCA 2132/2005 instead.  I do not see the justification for this change for the purpose of this application.

6.      A major pre-requisite for an action in the tort of negligence is the existence of a duty of care owed by the defendant to the plaintiff.  A litigant’s counsel owes no such duty to the opposite party in respect of the counsel’s conduct of the proceedings in the action (see para.20 of my decision).  The Plaintiff now argues that this case is peculiar in that the Defendant was the only lawyer before the court in the hearing in question.  This cannot be a valid basis for imposing on the counsel such personal duty of care to the opposite party.  This also cannot be a valid basis for the counsel concerned to assume or to undertake such duty of care to the opposite party simultaneously with his undeniable duty towards his own client.

7.      Counsel is certainly under the duty not to make misleading submissions to the court.  This is so irrespective of whether the opposite party is represented or not in the proceedings before the court.  Such duty is owed to the court and the profession.  It does not give rise to a civil cause actionable by the opposing litigant against the counsel personally for compensation.

8.      Regarding the contention that the Defendant advanced untrue and misleading arguments, it was for the court in that other action to evaluate such arguments.  That court had come to a decision after hearing the arguments advanced by the Plaintiff and those by the Defendant on behalf of the Plaintiff’s opponent.  It is for the Plaintiff to decide what to do with that decision if he believes that it is wrong, be it due to any untrue or misleading argument advanced by the Defendant or not.

9.      Entertaining the Plaintiff’s claim against the Defendant in the present action would entail considering whether the decision of the court in that action was the result of the Defendant’s alleged untrue and misleading submissions and, if yes, whether that decision should or could have been different.  This would effectively be a roundabout way of re-arguing the case which had been heard and decided by the court in that other action (see paras.16-19, 22 of my decision).

10.      The Plaintiff refers to the cases of Johnson v Gore Wood [2001] 2 WLR 72 and Arthur J S Hall v Simons [2000] 3 WLR 543.  These cases were in fact cited in Nu Life International Ltd v Healthy Living Products International Ltd, HCA 1157/2006, which I actually referred to in my decision (see para.23 of my decision).  I have considered precisely what were said in these cases.  The conclusion that the present action is abusive of legal process is inevitable.

11.      There is no realistic prospect of success in the intended appeal by the Plaintiff.

12.      The Plaintiff also argues that the striking out of his claim infringes his right of access to the court which is protected by article 35 of the Basic Law.  Determination of the merits of a party’s claim by the court has nothing to do with that party’s right of access to the court.  Neither the procedure under O.18, r.19 of the Rules of the District Court nor the fact that my decision is adverse to the Plaintiff infringes the Plaintiff’s right of access to the court.  Exactly in exercise of his such right, he appeared before the court and was heard.  There is no valid basis for granting leave to appeal on the basis of the alternative limb.

13.      In this hearing, the Plaintiff states in no uncertain terms that the court has been partial in favour of the Defendant.  He also criticises counsel appearing for the Defendant in this hearing for misleading this court too.  It should be put on record that these suggestions are totally unwarranted.

14.      The Plaintiff submits that if I dismiss his application, I should ‘stay’ the determination of the costs since he would take the intended appeal further.  This is not a valid reason for departing from the norm that costs should follow the dismissal of the application.

15.      In the circumstances, the application for leave to appeal is dismissed with costs to the Defendant to be taxed if not agreed.