YUEN OI YEE LISA v. NGAI NGOK PANG AND ANOTHER

CAMP 161/2018

[2018] HKCA 980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 161 OF 2018

(ON AN INTENDED APPEAL FROM HCMP NO 2829 OF 2012)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  By an ex-parte summons filed on 7 November 2018, the plaintiff applied for leave to appeal against the decision made by Au Yeung J on 24 October 2018 (“the Decision”) refusing the plaintiff’s application to grant restrictive proceedings order (“RPO”) against the 1^st and 2^nd defendants respectively.  On the same day, the plaintiff took out a written application for leave to appeal against the Decision and was rejected by Au Yeung J on 14 November 2018.  Although the plaintiff should have waited for Au Yeung J’s decision on her leave application made on 7 November 2018 before taking out the ex parte summons to this Court, as her leave application was eventually refused by the judge, we are prepared to disregard this procedural irregularity and deal with the plaintiff’s summons.

2.  Having considered the materials before us, we take the view that the summons can be disposed of on paper without an oral hearing.  We now hand down our judgment.

BACKGROUND

3.  The background leading to the present application is set out in the judgment of G Lam J on 5 June 2013,[1] which we respectfully adopt.

4.  Briefly stated, the plaintiff’s daughter works as a registered medical practitioner in a public hospital.  On 1 July 2011, she entered into a two-year term tenancy agreement in respect of a property in Le Prestige, 1 Lohas Park Road, Tseung Kwan O, New Territories (“the Property”) with the 1^st and 2^nd defendants as the landlords.  Soon after the plaintiff’s daughter moved in, disputes had arisen between them and their relationship broke down.  At one stage the defendants threatened to report the plaintiff’s daughter’s conduct to the Medical Council.  The defendants served notice of termination of tenancy on the plaintiff’s daughter.  The plaintiff’s daughter did not accept the notice as valid and gave notice to terminate the tenancy and also stopped paying rent.  The defendants then brought proceedings against the plaintiff’s daughter in the Lands Tribunal for arrears of rent and vacant possession of the Property under LDPD 1675/2012, LDPD 2002/2012 and LDPD 3030/2012.  

5.  The plaintiff alleged that the manner in which the defendants conducted the Lands Tribunal Proceedings, including the way they served documents on her daughter at her working place, amounted to unwarranted disturbance to her daughter.  On 17 December 2012, the plaintiff issued an originating summons in the proceedings below with a view to putting a stop and obtaining redress against the defendants for what the plaintiff regarded as their wrongful behaviour against her daughter.

6.  The originating summons had generated a large number of interlocutory applications, mostly taken out by the plaintiff and were unmeritorious.  On 1 February 2013, Au Yeung J made against the plaintiff a restrictive application order (“RAO”) and a RPO concerning matters relating to the proceedings below and the plaintiff was restrained from taking out further application without the leave of Au Yeung J.

7.  The originating summons was heard before G Lam J on 2 May 2003.  At the hearing, the plaintiff abandoned all the claims and reliefs sought in the originating summons save for an injunction to restrain the defendants from taking various actions to approach her daughter for matters relating to the tenancy dispute.  By the judgment dated 5 June 2013, G Lam J rejected the plaintiff’s claim.  G Lam J also dismissed the plaintiff’s summons applying for a RAO / RPO against the 1^st defendant.

8.  On 6 June 2013, the plaintiff filed a notice of appeal against the judgment (CACV 118/2013). Instead of taking steps to prosecute the appeal, the plaintiff issued various summonses to adjourn the appeal pending the resolution of CACV 96/2013 (which is an appeal from LDPD 2002/2012).  She also filed a number of affidavits, in which she accused the 1^st defendant of making false affidavit, forging the signature of the 2^nd defendant on the Acknowledgment of Service and perverting the course of justice and so on.  She further alleged that the 1^st defendant suffered from serious mental disorder.  By a judgment handed down on 18 March 2015 (“the Appeal Judgment”), the Court of Appeal rejected the plaintiff’s allegations against the defendants as bare assertions and dismissed the appeal.  The Court of Appeal further imposed, on its own motion, an ROA against the plaintiff in the appeal proceedings.

9.  Although Au Yeung J and the Court of Appeal had explained clearly in their respective judgments that the plaintiff’s claims and accusations against the defendants were groundless and thus all failed, she was not deterred.

10.  According to the plaintiff, on 14 December 2016, the 1^st defendant served on her daughter some court documents on taxation of costs in respect of CACV 96/2013 and since then, the 1^st defendant had caused “nuisance” and disturbances to her and her daughter again.  The plaintiff made 10 written applications between December 2016 and October 2018 to Au Yeung J to apply for RAO/RPO against the 1^st and 2^nd defendants.  In these applications, the plaintiff also tried to claim for a sum of HK$6 million against the 1^st and 2^nd defendants as damages for injury to feelings, and further requested the court to refer her forgery complaint against the defendants to the police for prosecution.  All the applications were rejected by Au Yeung J.

THE EX-PARTE SUMMONS FOR LEAVE TO APPEAL

11.  By way of summons taken out on 7 November 2018, the plaintiff now sought leave to appeal against the decision of Au Yeung J made on 24 October 2018 dismissing the plaintiff’s application made on 19 October 2018 for a RPO be made against the 1^st and 2^nd defendants.

12.  The primary basis of her application as disclosed in the supporting affirmations dated 7 November 2018, 24 September 2018 and 19 October 2018 attached in her written applications was that the 1^st defendant sent “nuisance” letters to the plaintiff on 22 September 2018 which she received on 24 September 2018 (which was the Mid-Autumn Festival) and also SMS message on 16 October 2018 (which was the day before Chung Yeung Festival).  She claimed that these were new events that entitled her to re-apply for a RPO against the 1^st defendant.  She further complained that the 1^st defendant sent 4 letters containing “toilet papers” to her daughter on 18, 19, 20 and 22 September 2018.  She alleged that the 1^st defendant had suffered from serious mental illness in sending “nuisance” letters and SMS to her / her daughter during festivals and the court should put a stop to these acts. 

13.  In the plaintiff’s written statement dated 7 November 2018 in support of her present application, the plaintiff repeated her above complaints and allegations against the defendants.

DISCUSSION

14.  Under section 14AA of High Court Ordinance, Cap 4, leave will not be granted unless the court is satisfied that :

(a)     the appeal has a reasonable prospect of success; or 

(b)     there is some other reason in the interests of justice why the appeal should be heard. 

15.  We have reviewed the materials before us and take the view that the plaintiff’s intended appeal against the decision of Au Yeung J of 24 October 2018 is devoid of merit and plainly not arguable.   The plaintiff has failed to provide any ground for making a RPO against the defendants: see Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1.   Further, the granting of RPO is an exercise of the court’s inherent jurisdiction to prevent abuse of the court process.  We fail to see how the making of a RPO against the defendants could be relevant to the plaintiff’s complaint that the 1^st defendant had sent “nuisance” letters and SMS messages to her. 

DISPOSITION

16.  For the reasons stated above, we are not satisfied that the plaintiff’s intended appeal has any reasonable prospect of success.  There is no other reason in the interest of justice why the appeal should be heard.  Accordingly, we dismiss the plaintiff’s summons dated 7 November 2018.

17.  As the plaintiff’s application is devoid of merits, we make an order pursuant to Order 59 rule 2A (8) of the Rules of the High Court that no party may under rule 2A (7) request the determination of this Court to be reconsidered at an oral hearing.

18.  As it is an ex parte application, we make no order as to costs.