LIEM HUNG AND OTHERS v. BUILDING AUTHORITY AND OTHERS

HCA789/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.789 OF 2003

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REASONS FOR DECISION

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Introduction

1. By a summons dated 27 March 2003, the 1^st and 2^nd defendant applied to strike out the Statement of Claim.  By another summons dated 16 April 2003, the 3^rd defendant applied to, inter alia, dismiss the plaintiffs’ cause of action against it.  I will call these applications “the Striking Out Applications”.  The hearing of the Striking Out Applications was scheduled to take place on 13 January 2004.

2. On 6 January 2003, the 10^th defendant took out a notice of motion returnable on 13 January 2003, applying for an order that I be disqualified from presiding over this action.  What he had in mind, of course, was the pending hearing of the Striking Out Applications.  In substance, the 10^th plaintiff asked me to disqualify myself from hearing those applications.  I will call this the Recusal Application.

3. At the hearing on 13 January 2003, of the 10 plaintiffs, only the 1^st, 2^nd and 10^th plaintiffs appeared.  The three defendants were all present.  I first dismissed the Recusal Application, which was not supported by any of the 1^st and 2^nd plaintiffs or the defendants, with oral reasons given.  I then invited the parties to make submissions on the Striking Out Applications.  After hearing the parties, I allowed the Striking Out Applications, striking out the Statement of Claim and dismissing the action with costs on an indemnity basis.

4. These are the reasons of my decision.

The Recusal Application

5. I first deal with the Recusal Application.  The grounds of that application are stated in the Notice of Motion in these terms :

“(1)His Lordship Deputy Judge Poon is seen and found to be a dishonest judge by the 10^th plaintiff in his experience with the adjudication of cases by Deputy Judge Poon.

(2)   The present case is against the crookery acts of the Government officers and certain judges.  It is a real danger for Deptuy Judge Poon to hear such cheatings of the Government and Court below due to similar cheatings also found to have been done by Deputy Judge Poon in the adjudication of earlier cases before him.

(3)   In any event, since there has been real justified and well-founded disbelief and distrust in the Judge, justice demands him be discharged.”

6. As a matter of procedure, an application of this sort should be by way of a summons as opposed to a notice of motion.  Such an application is interlocutory in nature and should be dealt with in chambers.  The 10^th plaintiff, however, insists that this application should be heard in open court.  I disagree.  I see no reason why the application should not be heard in chambers and should not be brought by way of summons in the first place.  I therefore treat the Notice of Motion as a summons and proceed to deal with it in chambers.  The 10^th plaintiff then leaves the court.  Be that as it may, in light of the nature of the application, it is incumbent upon me to deal with it as it now stands, lest it be presumed that I have just simply brushed it aside without duly considering the merits.

7. The 10^th plaintiff has filed an affirmation in support of the application dated 6 January 2004.  In that affirmation, he referred to my dealing of HCB581/2003 in which I made a bankruptcy order against a Mr Chung Kau.

8. The test that the court should apply in an application of this sort is this : the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.  He must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.  This is commonly known as the reasonable apprehension of bias test.

9. The grounds advanced by the 10^th plaintiff sound serious, but the only incident that he was able to point to in which he alleged that I have behaved dishonestly, or even fraudulently, is HCB581/2003.  Judgment in that case was handed down on 15 May 2003.  I do not propose to repeat what has been stated in that judgment.  Material to the present application before me, perhaps, is this.  At the hearing before me on 5 May 2003, the debtor applied to be represented by the 10^th plaintiff in these proceedings, although he was not even a party to the bankruptcy proceedings.  I refused that application on the basis that, although the debtor, appearing in person, was entitled to the help of a McKenzie friend, the latter did not have any right of audience in the High Court.  The 10^th plaintiff was entitled to advise the debtor from time to time during the course of the proceedings, which he did.  The debtor was able to address me on his own without any difficulty throughout the bankruptcy proceedings.  The debtor made attacks against government officers and their lawyers, and I ruled that it was not sufficient to simply raise allegations of that sort without giving concrete and credible evidence in support.  At the end, I made a bankruptcy order against the debtor as he had failed to show any bona fide disputes on substantial grounds on the petitioner’s debt.

10. The 10^th plaintiff was obviously not happy with how I dealt with the bankruptcy proceedings, but there is simply no basis whatsoever in his allegation here that I was guilty of any dishonesty or fraudulent practice in handling the bankruptcy proceedings.  I do not think any reasonable observer, fair-minded and informed of all the relevant facts would have come to the conclusion that there was a real possibility of bias on my part in dealing with the applications now before me.  The 10^th plaintiff’s application is simply unmeritorious.  It is therefore dismissed with costs on an indemnity basis.

The Striking out applications

11. I now turn to the Striking Out Applications.  I first summarize the background leading to the present action.

(1)     Background

12. This action concerns two dangerous hill said orders issued under section 27 of the Building Ordinance by the 1^st defendant to the 1^st to 9^th plaintiffs on 14 June 1996 and 12 May 1997 respectively (“the Orders”).  The Orders were issued as a result of an inspection and assessment of a masonry wall in front of the house owned by the 1^st to 9^th plaintiffs (“the Wall”).  The assessment was given by the 3^rd defendant was the instruction of the 2^nd defendant.  However, the 1^st to 9^th plaintiffs did not carry out the remedial work as required by the Orders, apparently on the ground that the 10^th plaintiff, the authorized person engaged by the 1^st to 9^th plaintiffs to supervise the investigation works, reported that the Wall was safe.

13. As a result of the failure on the part of the 1^st to 9^th plaintiffs to comply with the Orders, the 1^st defendant instituted criminal proceedings against the 1^st to 9^th plaintiffs under section 40(1B) of the Buildings Ordinance against them by summons dated 29 September 1998.  Subsequently, they were all found guilty by Ms D’Almada Remedios in the Western Magistracy and were fined HK$9,166 each.

14. In October 1999, the appeal by the 1^st to 9^th plaintiffs to Woo J (as he then was) against conviction was unsuccessful, although Woo J reduced the fine to HK$4,722 each.   In December 1999, Woo J dismissed an application by the 1^st to 9^th plaintiffs for leave to appeal to the Court of Final Appeal.  In January 2000, they applied for leave to appeal with the Court of Final Appeal, which application was also dismissed.

15. Some three years later, on 3 March 2003, the 1^st to 10^th plaintiffs commenced the present action against all the three defendants, alleging that all the fines and costs orders made by the courts are void in law and the defendants have been party to a conspiracy to prosecute and to procure such finds and costs orders and to ruin the reputation of the 10 plaintiffs as the authorized person by fraud.  They claimed for, inter alia, a declaration that the fines and costs orders are all void and unenforceable in law, a mandamus to withdraw the order made on 12 May 1997, damages to the loss of value of the house in question in the sum of HK$4.8 million, aggravated damages due to the ruin of professional reputation and exemplary damages.

(2)     No reasonable cause of action against the 1^st and 2^nd defendants

16. It is trite law that whatever grievance a plaintiff may have, he must show that he has a cause of action recognized by law and properly formulated in accordance with law when he brings an action against others.  Otherwise, his Statement of Claim is liable to be struck as it discloses no reasonable cause of action and is an abuse of process.  His action will also be dismissed.  See Wai Hung Stationery Co. v. HKSAR, FAMV1/1998.

17. Mr Tam, senior government counsel appearing for the 1^st and 2^nd defendants, submitted that it is difficult to discern from the Statement of Claim what cause of action the plaintiffs have as against the 1^st and 2^nd defendants.  Taking the pleading at its highest, it seems to have raised “malicious prosecution” and “misfeasance in public office” against the 1^st and 2^nd defendants.  Having read the Statement of Claim carefully, I agree with Mr Tam’s submissions.  I will therefore proceed to examine if these two possible causes of action are tenable on the pleadings.

18. For malicious prosecution, the plaintiffs must plead that the prosecution was brought without reasonable and probable cause and malice.  Each and every ingredient must be pleaded.  Mr Tam submitted that the plaintiffs have failed completely to plead all the ingredients that constitute malicious prosecution.  He further submitted the plaintiffs’ evidence disclosed no evidence at all to support such a cause of action.  I agree with Mr Tam’s submissions entirely.

19. I next turn to consider misfeasance in public office.  Generally speaking, an action for misfeasance in public office involves the allegation that a public officer acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the officer’s unlawful conduct.  These are grave allegations that must be supported by pleaded facts which are capable of establishing liability : see Tang Nin Mum v. Secretary for Justice, CACV13/2000.  Mr Tam submitted the ingredients of this cause of action were simply absent in the Statement of Claim.  I agree.  Further, Mr Tam submitted that while the 10^th plaintiff alleged that the 1^st defendant discredited him and ruined his reputation, it was not a probable consequence of the proper and lawful exercise of power conferred by the Building Ordinance on the 1^st defendant that the 10^th plaintiff would suffer damages due to ruin of professional reputation.  In the absence of the necessary malice, there is no cause of action in misfeasance in public office.  Again, I agree.

20. For these reasons, I rule that the Statement of Claim discloses no reasonable cause of action against the 1^st and 2^nd defendants.

(3)     No reasonable cause of action against the 3^rd defendant

21. Mr Shephred appearing for the 3^rd defendant first submitted that the Statement of Claim failed to specify any cause of action against the 3^rd defendant.  Again, having carefully read the Statement of Claim, I agree.

22. The Statement of Claim did, however, raise these allegations against the 3^rd defendant :

(a)      The 3^rd defendant wrongly thought that the Wall was retaining as opposed to non-retaining (paragraph 3);

(b)     The 3^rd Defendant, together with 2^nd defendant, misled the 1^st defendant into rejecting the findings of the 10^th plaintiff (paragraph 6);

(c)     The 3^rd defendant gave false evidence at the Magistrates Court and in particular, one of its employees lied to the Court in describing the Wall as a retaining wall (paragraph 13); and

(d)     The 3^rd defendant conspired with the 1^st and 2^nd defendants to prosecute and procure fines and to ruin the reputation of the 10^th plaintiff by fraud (paragraph 20).

23. In paragraph 7 of the 10^th plaintiff’s affirmation filed on 26 May 2003, he alleged that it was on the part of the 3^rd defendant “a gross professional blunder and misconduct in giving a false report to the 1^st and 2^nd defendants to procure their wrongdoings” and “dishonestly pretending” that the 3^rd defendant’s report’s report was correct.

24. Mr Shephred first took the point that the plaintiffs attempted to re-litigate issued concerning the Orders which had already been decided by other courts.  As such, it is an abuse of process.  He further submitted that the Statement of Claim failed to give particulars of the alleged fraud or conspiracy and there is simply no evidence in support of those pleas.  I agree with him completely.  I therefore rule that the Statement of Claim discloses no reasonable cause of action against the 3^rd defendant as well.

(4)     Abuse of process

25. As the Statement of Claim discloses no reasonable cause of action against any of the three defendantsand is in effect an attempt to re-litigate issues already determined in other proceedings, it is an abuse of process.  It must be struck out.

Conclusion

26. For the above reasons, I allowed the Striking Out Applications, struck out the Statement of Claim and dismissed the plaintiffs’ action against all the defendants.

COSTS

27. As noted, it is an abuse of process to bring the present action against the defendants.  There is no reason why costs should not be awarded on an indemnity basis.  I therefore order that the costs of and occasioned by the Striking Out Applications will be to the defendants against the plaintiffs, to be taxed on an indemnity basis if not agreed.