ELIZABETH LEE (AH FOON) v. KIT SEONG LAM NG (AH HING)

HCA 24/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 24 OF 2008

______________________

______________________

__________________

D E C I S I O N

__________________

1.      This court granted a RPO against Lisa Yuen [“Yuen”] on 23 November 2007 in HCA 2107 of 2006.  Paragraph 2 of that order reads,

“

Yuen Oi Yee Lisa alias Lisa Yuen, Lisa Lee and 袁靄儀, whether in her personal capacity, her firm (including “David and Goliath” and/or “法律界大長今”, or in the name of a company in which she has interest, is prohibited from commencing any fresh proceedings in respect of all or any cause(s) of action by whatever originating process, including judicial review proceedings against any one or more of the parties set out in Schedule 1 without the leave of Lam J or, in his absence, A Cheung J being first obtained.   ”

2.      Lam Kit Seong Miranda [“Lam”] is a person identified in Schedule 1.  

3.      On 2 January 2008, Yuen lodged an application for RPO leave to permit her to institute a new action against Lam “after the sale of her 2 offices bought at HK$17 million in 1997 when an amount of HK$1 million was belonged to me from Happy Venture Ltd.”

4.      In that application, Yuen said she had written on 5 December 2007 to the solicitors for Lam in respect of her intended application and the solicitors had responded to it in a letter of 12 December 2007 to this court.   However, Yuen did not attach copies to these letters to her application.  Instead she attached her letter of 27 December 2007 to the solicitors. 

5.      This court had retrieved a copy of the letter of 12 December 2007 from the solicitors and a copy of Yuen’s letter of 5 December 2007 was attached thereto.  

6.      In the letter of 5 December 2007, Yuen attached a draft writ in which the plaintiff was named as “Yuen Oi Yee Lisa” and the defendant was Lam.  The claim was for $1 million.  The case as pleaded in that draft writ was that the plaintiff and the defendant had incorporated a company called Happy Venture Ltd and both of them deposited $1 million each into the bank account of that company in 1997.  In paragraph 5 of the draft writ, it was pleaded,

“	Thereafter, the defendant asked the plaintiff for the exact HK$1 million to buy the share of ‘明力’ under the defendant’s broker.  The HK$1 million never returned to the hands of plaintiff because the defendant had lost all shares.   ”

7.      On the pleadings alone, it is difficult to tell whether Yuen was saying that she had acceded to the request of the defendant to lend her $1 million and what, if anything, had that loan to do with the $1 million deposited into Happy Venture Ltd.  It is also not clear whether the $1 million deposited into Happy Venture Ltd was by way of shareholder’s share capital or by way of loan to Happy Venture Ltd.  

8.      In the letter of 12 December 2007, the solicitors for Lam took the point that the draft Statement of Claim did not disclose any cause of action.  Lam denied she had borrowed any money from Yuen or from Happy Venture Ltd.  It was also submitted that there is simply no factual nor legal foundation for the claim and the spurious nature of the claim can be reinforced by the fact that Yuen had not pleaded or referred to any relevant documents in support of this alleged claim for $1 million in her many previous actions against Lam.  The solicitors further submitted that the intended claim was a collateral move to obstruct the bankruptcy petition against Yuen in HCB 8954 of 2007.  

9.      On 27 December 2007, Yuen wrote to the solicitors for Lam to deal with the comments regarding her intended claim.  She asserted that Lam promised to “refund me of an amount of HK$1 million which [Yuen] had deposited with Happy Venture Ltd in 1997” after the sale of two properties of Lam and she recently learnt that the two properties were sold in 2007.  Yuen gave more information about her case regarding this HK$1 million claim in this letter.  She alleged Lam to have used the money of Happy Venture Ltd (which represented Yuen’s share) for stock speculation in “Ming Lek” and lost the same.  But Yuen did not give any particulars about the alleged promise by Lam to refund the $1 million to her. 

10.      Based on the matters set out in the 27 December 2007 letter, another draft writ was prepared by Yuen naming herself as plaintiff and Lam as the defendant.  The 2 January 2008 RPO leave application was based on this new draft.  

11.      It is not clear whether Yuen has sent a copy of the new draft writ to the solicitors for Lam.  

12.      From the above, it is quite clear that Yuen was fully aware that she had to obtain RPO leave before she could commence an action in respect of her intended $1 million claim against Lam.  

13.      This court has not granted any RPO leave to her for the intended claim.  

14.      On 4 January 2008, Yuen came to the High Court Registry in the morning attempting to issue her draft writ without RPO leave.  She was not successful.  

15.      In that afternoon, she sent a Chinese male to issue another writ in respect of substantially the same claim.  However, the name of the plaintiff was changed to “Mrs. Elizabeth Lee (Ah Foon)” in order to mislead the staff at the Registry that it is an action by someone else.  

16.      The Writ was issued in HCA 24 of 2008.  Yuen admitted herself that she was Mrs. Elizabeth Lee (Ah Foon) in her draft summons she lodged on 4 January 2008 in HCA 2107 of 2006.  She confirmed that in her affirmation of 4 January 2008.  She said this represented a challenge to the RPO, at paragraph 5 of her affirmation, she said,

“	The more you give me the challenge, the more I feel joy and thrilled and return your challenge and attacks against me.   ”

At paragraph 7, she explained why she used another address for the plaintiff in the writ of HCA 24 of 2008,

“	I used the address of Demy’s employer because I afraid the staff in your Registry recognize my usual address”.

17.      She also said in Paragraph 8 of her affirmation,

“	… I used my another name as Mrs Elizabeth Lee (Ah Foon) in order to by-pass the staff over your Registry, due to your challenge given against me.   ”

18.      In my view, these are clear statements by Yuen admitting that she issued the writ in HCA 24 of 2008 in defiance of the RPO of 23 November 2007.  

19.      As set out above, the RPO encompassed acts by Yuen irrespective of the names she used.  The issue of the writ is in breach of the RPO.  As I have mentioned to Yuen previously RPO is in substance an injunction.  On the face of the records, Yuen has deliberately flouted an injunction and is guilty of contempt of court.  

20.      Since the Writ in HCA 24 of 2008 was filed in breach of the RPO, in accordance with paragraph 9 of the RPO, the defendant, viz. Lam is entitled to make no response to the writ pending notification by the court as to whether the action should be permitted to continue or be dismissed.  

21.      A litigant who acts in breach of a RPO should not be in a better position than a litigant who acts in compliance with it.  One of the purposes of a RPO is to avoid waste of court’s time in having to hear vexatious litigants at oral hearings.  Given the background to the matter, I do not consider it necessary to have an oral hearing for deciding whether the action should be permitted to continue.  It is in substance a matter ancillary to the RPO and pursuant to paragraph 7 of the RPO, it can be disposed of without any oral hearing.  

22.      Assuming Yuen decides to proceed with HCA 24 of 2008 notwithstanding what I shall say below regarding purging of contempt, I will give Yuen a chance to file written submissions by 25 January 2008 to set out why HCA 24 of 2008 should be permitted to continue even though it was issued in breach of the RPO.  Thereafter, I shall make a determination on that question without any oral hearing.  

23.      Court orders have to be obeyed.  Yuen must learn that the court is not playing games with her and disobedience of court orders, including RPOs, will have consequences.  This is not the first time Yuen acted in defiance of a RPO and used vexatious tactics to evade the detection of such acts by the Registry, see my judgment of 22 November 2007 in HCA 2281 of 2007 and Reasons for Decision in HCA 2017 of 2006 on 27 November 2007. 

24.      The court has a discretion not to hear a litigant who is in contempt.  Given Yuen’s conducts over the past few months and her repeated flouting of the court’s orders and abuses of the legal process, I am of the view that the discretion should be exercised by refusing to entertain any applications for RPO leave from her (including her application of 2 January 2008) until she purges her contempt.  Since her contempt lies in the commencement of HCA 24 of 2008, she could purge it by discontinuing the action before a determination by this court on the fate of this action.  

25.      Yuen should also appreciate that contempt could carry much more severe penalty than a refusal to entertain her applications.