YUEN OI YEE LISA v. NGAI NGOK LEONG

CACV 245/2022, [2023] HKCA 628

On appeal from [2022] HKCFI 1828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2022

(ON APPEAL FROM HCMP NO 1936 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal brought by Yuen Oi Yee Lisa (“Madam Yuen”) against the judgment of Au-Yeung J (“the Judge”) given in HCMP 1936/2021 on 16 June 2022 (“the Judgment”)[1]. The appeal is dealt with on paper at the request of Madam Yuen. The defendant, Ngai Ngok Leong (“NNL”), has no objection to this.

2.  By the Judgment, the Judge ordered the originating summons against NNL be struck out and the claim be dismissed and made a restricted proceedings order (“RPO”) against Madam Yuen prohibiting her from commencing any fresh proceedings concerning any matters involving, relating to, touching upon, leading to or arising out of these specified matters (“Specified Matters”) without the leave of the Judge having first been obtained:

(1)  HCMP 2155/2018, CACV 415/2019, CACV 553/2020, CAMP 282/2019, HCMP 2829/2012, CACV 96/2013 and CACV 118/2013;

(2)  prior correspondence between NNL and the court, including the letter dated 2 January 2019 from NNL to the court in HCMP 2155/2018 (“NNL’s Letter”);

(3)  any judgment debt or costs owed by Madam Yuen to Ngai Ngok Pang (“NNP”) or Ngai Yu Ling Mony (“Madam Ngai”) in any court proceedings (whether those judgment debt or costs have been paid by Madam Yuen or not); and

(4)  any matter concerning NNP, Madam Ngai and/or NNL.

3.  In this appeal, Madam Yuen sought to set aside the Judgment and substitute this with an order as follows:

“To pass the forgery of [NNP] done for [NNL] to the Secretary for Justice or the Director of Public Prosecutions for consideration with TKO RN 21035532/CR 078/2015 in one go.”

HCMP 2155/2018

4.  Before discussing the claim in HCMP 1936/2021 which was ordered to be struck out by the Judgment, it is convenient to give an account of the proceedings in HCMP 2155/2018.

5.  On 7 December 2018, Madam Yuen and her daughter Lee Syn Yuk Michelle (“Ms Lee”) issued an originating summons in HCMP 2155/2018 against NNP and Madam Ngai. Against NNP, they sought an injunction as he had allegedly sent his “endless nuisances” against Madam Yuen and Ms Lee in the past, and compensation for injury to feelings. Against Madam Ngai, they sought an order for her “to issue a Statutory Demand to [Madam Yuen and Ms Lee] and sign her English name on the Statutory Demand”, and “to pass the default judgment of [Madam Ngai], if any, to the Secretary for Justice for consideration”.

6.  Madam Yuen on her own behalf and purportedly on behalf of Ms Lee then applied for an interlocutory injunction against NNP and Madam Ngai. The application was to be heard by the Judge on 4 January 2019. Instead of serving the documents filed in the proceedings on the named defendants, Madam Yuen served the documents on NNL, who was not a party to the proceedings. On 2 January 2019, NNL issued NNL’s Letter to the court, objecting to service of the documents at his address. At the hearing on 4 January 2019, the Judge refused to grant an interlocutory injunction and told Madam Yuen (Ms Lee was absent) that without leave of the court, it was impermissible to serve documents in the proceedings on NNL, who was not related to the case, even though the documents were marked “care of”.

7.  The court later provided a copy of NNL’s Letter to Madam Yuen. She wrote to the court on 25 January 2019 stating that she “strongly suspect” [sic] the signature on NNL’s letter was forged by NNP with or without the knowledge of NNL. She then issued a summons on 30 January 2019 seeking inter alia an order against NNL to make an affidavit to confirm his signature and knowledge of NNL’s Letter, and an order against NNP and Madam Ngai to provide their original address proof for three months prior to the date of NNL’s Letter in order to prove that NNL had lied in NNL’s Letter.

8.  The Judge heard the summons on 21 March 2019. At the conclusion of the hearing, she dismissed the summons and made an injunction against Madam Yuen and Ms Lee restraining them from serving documents in the proceedings on NNL without the court’s approval[2].

9.  Madam Yuen sought leave from the Judge to appeal against her decision of 21 March 2019 out of time. This was refused by the Judge on 25 October 2019[3] and by the Court of Appeal on 16 April 2020[4].

10.  As for the originating summons, at a hearing on 30 July 2019, the Judge gave leave to Madam Yuen and Ms Lee to withdraw their claims against Madam Ngai. In respect of the remaining claims in nuisance against NNP, by a decision on 1 August 2019 the Judge ordered these claims to be struck out and the originating summons dismissed[5]. The appeal against the decision of 1 August 2019 was dismissed by the Court of Appeal on 15 October 2021[6]. Leave to appeal against the judgment of the Court of Appeal to the Court of Final Appeal was refused by the Court of Appeal on 13 June 2022[7].

HCMP 1936/2021

11.  Madam Yuen brought a fresh action in HCMP 1936/2021 to sue NNL. As summarised in the Judgment, the originating summons issued on 30 November 2021 sought reliefs under these four paragraphs:

“(1) To order [NNL] to contact, inform, locate, find [Madam Ngai] and encourage her to turn up for an oral hearing to be held by the registrar of civil appeals in CACV 415/2019, CACV 553/2020 and CAMP 282/2019, in order to receive cash of HK$34,400 from Madam Yuen in front of 3 judges (in order to end all proceedings in one go).

(2) To order NNL’s written apology to be made to Madam Yuen due to his wrong allegations against Madam Yuen in his letter addressed to Au-Yeung J in HCMP 2155/2018 on 2 January 2019 [i.e. NNL’s Letter].

(3) As a matter of fact, Madam Yuen had never owed any judgment debts in HCMP 2829/2012 and CACV 118/2013 to [NNP] alone but Madam Ngai too. Pursuant to the judgment delivered by Au-Yeung J in CACV 96/2013 on 6 April 2017, Madam Yuen could not pay the judgment debts to [NNP] alone despite the fact that Madam Ngai never chased after the judgment debt in HCMP 2829/2012 and CACV 118/2013.

(4) To order compensation to Madam Yuen for her injury to feelings when NNL had made all allegations against her in [NNL’s Letter] which were not true and further led to an Injunction Order taken against both Madam Yuen and her daughter in HCMP 2155/2018 on 21 March 2019.”

12.  By a letter dated 9 December 2021, the Judge set out the background to HCMP 2155/2018 and invited Madam Yuen to show cause in writing: (1) why the originating summons in HCMP 1936/2021 should not be struck out on the grounds of lack of reasonable cause of action, was frivolous or vexatious and an abuse of process, and why the proceedings should not be dismissed; and (2) why an RPO should not be issued against her to restrain her from taking any action arising from the Specified Matters, except with leave of the designated judge.

13.  Madam Yuen lodged her submissions to show cause on 11 December 2021.

The Judgment

14.  The Judge ordered the claims under the originating summons in HCMP 1936/2021 to be struck out and dismissed for these reasons:

(1)  On the face of the originating summons, there is no allegation that NNL owed any duty to Madam Yuen to do the things that he is ordered to do. No reasonable cause of action is disclosed.

(2)  As to the evidence, NNL was not a party to any of the proceedings mentioned in the originating summons, nor was he subject to any court order requiring him to do anything. The orders mentioned in paragraphs (1) and (3) of the originating summons were imposed on Madam Yuen to pay NNL’s siblings (NNP and Madam Ngai). It is an abuse of process to drag in NNL.

(3)  The only possible “involvement” of NNL was NNL’s Letter. The passages of that letter quoted by Madam Yuen were only expressions of NNL’s opinion which had no impact on HCMP 2155/2018 as NNL was not a party to that case and the Judge did not act on those passages. No cause of action could arise from NNL’s Letter.

(4)  The allegations against NNL are frivolous or vexatious in that there is no chance of Madam Yuen succeeding on any of them. It is an abuse of process for Madam Yuen to trouble NNL by serving him unnecessarily with documents and then turn round to sue him for sending NNL’s Letter to the court.

(5)  With regard to paragraph (4) of the originating summons, the injunction order made in HCMP 2155/2018 on 21 March 2019 to restrain Madam Yuen from further sending documents to NNL at his home was never overturned and Madam Yuen’s collateral attack in HCMP 1936/2021 on the injunction order is an abuse of process.

(6)  Madam Yuen had made statements which are clear admissions of her abusive use of HCMP 1936/2021 to trouble NNL, against whom she could have no cause of action.

15.  The Judge further held that to make an RPO against Madam Yuen would be a proportionate response having regard to the following matters:

(1)  In dismissing the summons issued by Madam Yuen and Ms Lee on 30 January 2019 in HCMP 2155/2018, it was stated in the decision of 21 March 2019 that the summons was frivolous and vexatious and the Judge had told Madam Yuen at the hearing not to send documents to NNL again. The need to deal with NNL’s Letter had been spent at that hearing and it should have been apparent to Madam Yuen or any reader that NNL’s Letter had no impact on HCMP 2155/2018 and no action could have been taken by Madam Yuen on that letter. There was no reason for Madam Yuen to trouble a non-party again.

(2)  Madam Yuen seeks to re-litigate the effect of NNL’s Letter by bringing a fresh action in HCMP 1936/2021.

(3)  She also makes a collateral attack on the injunction order imposed in HCMP 2155/2018.

(4)  In paragraphs (1) and (3) of the originating summons, she raises issues about payment of costs which have been determined in other proceedings.

(5)  She shows no regret in the pursuit of hopeless litigation against NNL and again in serving documents on non-parties. She has brought a number of unsuccessful proceedings against NNP and/or Madam Ngai and opens a new front against NNL in HCMP 1936/2021. She would continue to abuse the process and trouble the three Ngai siblings.

This appeal

16.  On 17 June 2022, Madam Yuen filed a notice of appeal against the Judgment. She was directed by the Registrar of Civil Appeals to file a supplemental notice of appeal to set out her grounds of appeal succinctly. On 20 July 2022, she filed a supplemental notice of appeal pursuant to the directions. She lodged her skeleton submissions on 29 March 2023.

17.  The grounds of appeal and complaints that Madam Yuen made in the supplemental notice of appeal and skeleton submissions may be summarised as follows:

(1)  The Judge was “absolutely bias and prejudice” [sic] in imposing the injunction order against Madam Yuen and Ms Lee in HCMP 2155/18 on 21 March 2019. The Judge “had been foul-played” [sic] by NNP and NNL when it was NNP who had forged the signature of NNL on NNL’s Letter.

(2)  The signature on NNL’s Letter was only a stylised initial “L”, in contrast NNL had signed his full name in Chinese and English in some documents registered at the Land Registry. Further, the contents of NNL’s Letter covered matters only known to NNP but not to NNL.

(3)  Madam Yuen was confident that NNP had forged NNL’s signature on NNL’s Letter, as NNP had forged the signature of Madam Ngai in the acknowledgment of service filed in HCMP 2829/2012 on 24 December 2012.

(4)  Madam Yuen had reported to the police the forgeries of NNP of the signatures of Madam Ngai and NNL. On 23 October 2021, she requested the Judge to provide the original documents to her including NNL’s Letter for the police to investigate. The Judge merely replied on 8 November 2021 asking for documentary proof that the police required the documents mentioned by Madam Yuen.

(5)  On 30 June 2022, Madam Yuen and Ms Lee filed an application with the Court of Final Appeal (in FAMV 270/2022) for leave to appeal against the decision of the Court of Appeal in CACV 415/2019 on 15 October 2021 dismissing their appeal against the Judge’s decision of 1 August 2019 ordering the originating summons in HCMP 2155/2018 to be struck out and dismissed.

(6)  Madam Yuen received a letter from the Department of Justice dated 10 October 2022 that the matters raised in her letters sent to that department since February 2022 “have been passed to the Police for investigation” and she will be informed of the result by the police when it is available.

Disposition

18.  Dealing first with the order sought in the supplemental notice of appeal (“To pass the forgery of [NNP] done for [NNL] to the Secretary for Justice or the Director of Public Prosecutions for consideration with TKO RN 21035532/CR 078/2015 in one go”), this is not a relief sought in the originating summons in HCMP 1936/2021. Even if the Judgment were to be set aside, it is procedurally inappropriate to replace the orders in the Judgment with the order sought in the supplemental notice of appeal.

19.  As for the matters raised in the supplemental notice of appeal and skeleton submissions, they do not engage the reasoning in the Judgment. There is no answer to the crucial holding that there is no reasonable cause of action against NNL, who is not a party to the various proceedings between Madam Yuen and the siblings of NNL, and that it is frivolous, vexatious and an abuse of process to bring a new action against him in light of the decision of 21 March 2019 in HCMP 2155/2018.

20.  The allegation of forgery regarding the signature on NNL’s Letter was raised and rejected in the decision of 21 March 2019, in which the Judge stated at paragraph 18: “Her assertion of forgery had no evidential basis and was totally subjective.” Leave to appeal against that decision was refused by the Court of Appeal on 16 April 2020. There is no valid basis to re-litigate this allegation by bringing a new action against NNL.

21.  The assertions of bias against the Judge are without foundation. The reports to the police and the response of the Department of Justice cannot salvage the lack of legal basis for the new action. The application of Madam Yuen and Ms Lee in FAMV 270/2022 for leave to appeal against the Court of Appeal’s decision in CACV 415/2019 is likewise irrelevant.

22.  The making of an RPO against Madam Yuen is entirely justified in all the circumstances.

23.  We dismiss the appeal of Madam Yuen. As NNL has not participated in the appeal, we make an order nisi there be no order as to costs of this appeal.