YEUNG, KWONG TAT EDWARD v. HONG KONG AND SHANGHAI BANKING CORPORATION LTD

HCA 1628, 1655, 1656, 1657, 1658, 1659, 1668,
1669, 1670, 1671, 1672, 1673, 1674, 1675, 1677,
1680, 1691, 1692, 1693, 1694, 1695/2010
(Heard Together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1628 OF 2010

BETWEEN

(Heard Together)

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REASONS FOR DECISION

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1.  This morning this court has to deal with altogether 21 actions, all taken out by the plaintiff Yeung Kwong Tat Edward. The various defendants of those actions are set out below:

HCA 1628/2010 – Hong Kong and Shanghai Banking Corporation Limited

HCA 1655/2010 – Wing Hang Bank, Limited

HCA 1656/2010 – Dah Sing Bank, Limited 

HCA 1657/2010 – American Express Bank

HCA 1658/2010 – DBS Bank (Hong Kong) Limited

HCA 1659/2010 – Bank of East Asia, Limited

HCA 1668/2010 – Standard Chartered Bank

HCA 1669/2010 – Citibank, N.A.+

HCA 1670/2010 – Hang Seng Bank, Limited

HCA 1671/2010 – Aeon Credit Service (Asia) Company Limited

HCA 1672/2010 – Asia Commercial Bank Limited

HCA 1673/2010 – Bank of China Limited

HCA 1674/2010 – CITIC Ka Wah Bank Limited

HCA 1675/2010 – Well East Trading Limited

HCA 1677/2010 – Wing Lung Bank, Limited

HCA 1680/2010 – Lippo Futures Limited

HCA 1691/2010 – Tanrich Futures Limited

HCA 1692/2010 – Lippo Securities Limited

HCA 1693/2010 – Celestial Securites Limited

HCA 1694/2010 – Celestial Commodities Limited

HCA 1695/2010 – Tanrich Bullion Limited

2.  These matters were brought to my attention because in the indorsements of the writs, the plaintiff had set out the reasons and the claims. The contents of the indorsements are the same except for the amounts claimed. I found that the contents of the indorsements are not comprehensible. To quote one example in HCA 1655/2010:

“ The Plaintiff’s money claim is for case indemnification to developments and profession. This MDO diversity money action to constitutional relief over ethics, set-off, duress and state action debt collection caused by economic liberties of the Defendant at HK$ quantum meruit [auditor and accountant money paid in the Defendant’s possession, excluding interest paid before this date ^2 *0.07/2/150- outstanding balance due to the Defendant or HKD4,040,000 ,whichever is higher]; by standing instruction of an auditor Plaintiff’s money in the Defendant’s possessory takings in compensation and services rendered and money had and received payable forewith to the Plaintiff, not a party/no related party and outstanding balance to RE: HCB 261/2003 & RE:B10/261/2003 & Statement of Financial Affairs filed; The Plaintiff in person holding registration of birth and death replaced the Petitioner in person. Diversity money collection action or defence out of time replaced the petition of rights. “No state shall deny to any person within its jurisdiction the equal protection of the laws”. “No state shall make or enforce any law shall abridge the privileges or immunities of citizen of the H.K.” “If a state law conflicts with a congressional act regulating commerce, the congressional act is controlling.” “Congress has the power to regulate intrastate commerce when it impacts interstate commerce.” No Form 46A and no Petitioner’s creditors’ objections. The Congress assessed reasonable cause of action and state law or the matter is a long way out of time, including antitrust action etc. No winding-up order.”

3.  I take the view that on the contents above, even though the defendants do not file any defence; in fact, the defendants will find it difficult to defend, given the nature of the contents above, the court should not enter judgment in default in favour of the plaintiff pursuant to Order 19 of the Rules of the High Court.

4.  I have borne in mind the fundamental principle set out by the Court of Appeal in Ha Francesca v Tsai Kui Kan [1982] HKC 382, which other courts follow, that it is only plain and clear case that there is no reasonable cause of action that the court will strike out the claim.

5.  I therefore decided that, in order to give effect to the objectives under Order 1A of the Rules of the High Court, in particular, rule 1(a) (b) and (d)[1], by exercising the power under Order 1B rule 1(2)(c) and (k)[2] and under Order 18 rule 19[3] of the Rules of the High Court, the plaintiff should be called upon to attend at a hearing to show cause why his indorsements of the writs should not be struck out and his actions should not be dismissed.

6.  By letters dated 19 November 2010, I called upon the plaintiff to attend the hearing today for the above purpose, with copies to the defendants involved stating that their attendance for this hearing is not required. But they are entitled to attend this hearing.

7.  This morning, the plaintiff has failed to appear before me. I have in the public seats various representatives of the defendants’ attending this hearing. They have confirmed to me that they are just to hear what happens and they do not intend to make any submission to me.

8.  The hearing is scheduled to take place at 10:00 a.m.. I have waited until 10:20 a.m.. But the plaintiff is still absent. I therefore proceed to deal with this matter in the absence of the plaintiff.

9.  I have noted that after we have sent the letters calling upon the plaintiff to attend this hearing, we have received from the plaintiff 21 copies of Notices of Discontinuance all dated 20 November 2010 in respect of all 21 cases. According to our record, the plaintiff has not filed those Notices of Discontinuance with the court.

10.  According to the decision of the Court of First Instance in Lai M Ma v Tang Yin Lin HCA 448/2010, Chu J. held that if the plaintiff has shown no reasonable cause of action, the court can refuse to enter judgment even if the defendant has failed to file the defence. The court has the jurisdiction to, on its own motion, strike out the plaintiff’s pleading or writ under Order 18 rule 19 of the Rules of the High Court.

11.  Since the plaintiff has failed to appear before me today to show cause why his writs should not be struck out and based upon the fact that the indorsements on the writs of those 21 actions have disclosed no reasonable cause of action against the defendants, I decide to exercise my powers under Order 1B and Order 18 rule 19 of the Rules of the High Court to strike out the 21 indorsements of writs and dismiss those 21 actions and so I now do with costs to the defendants.

12.  I now make the order in respect of each of the Actions as set out in Paragraph 1 in terms of the following:-

(i)  The indorsement of the Writ be struck out;

(ii)  The Action be dismissed;

(iii)  Costs be to the defendant, to be assessed summarily, if not agreed.