WONG SHUI KEE ROGER v. THE HON. CHIEF JUSTICE MR JUSTICE MA AND OTHERS

HCA 1474/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1474 OF 2011

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BETWEEN

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J U D G M E N T

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1.  In this action the Plaintiff issued proceedings by way of writ of summons together with a statement of claim dated 30 August 2011 suing various persons: including the Chief Justice, the former Chief Justice and the 3^rd Defendant (named as All Barristers Practising at Temple Chambers); the 4^th Defendant is a solicitor’s firm, Herbert Smith; the 5^th Defendant is another solicitor’s firm, Johnson Stokes & Masters; and the 6^th Defendant is the Hong Kong Government.

2.  As far as the pleadings go, the Plaintiff’s claim is purportedly for damages by reason of the conspiracy of the Defendants to commit a tort, that is they jointly and/or severally conspired to injure the reputation and law practice of the Plaintiff.

3.  As far as the factual basis for the Plaintiff’s claim is concerned, he simply referred to what he called a witness statement to the police in respect of a criminal complaint against the Chief Justice and the former Chief Justice.

4.  Paragraph 3 of his statement of claim says that his claim is well supported by the U.S. government, the Iran government and the Japan government.

5.  The Plaintiff claims the following relief：punitive damages, permanent injunction against the unlawful acts of the Defendant and costs and other relief.

6.  I note at the outset that the Plaintiff’s statement of claim does not comply with the requirement in Order 41A in that there is no statement of truth with regard to the allegations in the statement of claim.  But that is a defect which, if the Plaintiff’s claim has substance, can be cured.  At this stage I just note that the Plaintiff has not even deposed to the truth of his allegations.

7.  After the writ had been issued, the matter came to the attention of this court.  In the light of the state of affairs (which I shall elaborate below) this court considered that there should be a hearing to consider whether the Plaintiff’s action should be struck out for being vexatious or abusive.  This is in accordance with the practice laid down by this court in the case of Choy Bing Wing v Chief Executive of Hong Kong SAR, [2006] 1 HKC 225.

8.  In that case this court struck out the claims of a plaintiff on its own motion.  The court found that the claims of the plaintiff in that action to be wholly and plainly devoid of merit and was vexatious and constituted an abuse of process.

9.  This court explained in that judgment at paragraph 28 onwards why it was appropriate in the circumstances of that case that the court should exercise the power of striking out on its own motion.  I need not repeat what I have already said in that judgment.

10.  Coming back to the present case, as explained, the Plaintiff’s claims is based on an alleged conspiracy against him by the Defendants.

11.  The requirements for pleading conspiracy can be found in the Hong Kong Civil Procedure 2011, at paragraph 18/12/8.  What is said is this:

“When pleading a tort of conspiracy the pleader must alleged at least one overt act which is the act of all the alleged conspirators or failing that a number of overt acts which include at least one act on the part of each co-conspirator.

The overt act or overt acts pleaded must be such as to show: (1) that the conspiratorial agreement alleged against the Defendant had been entered into by each and every one of them; (2) that the agreement and not merely the intention of one person only was implemented; and (3) that such implementation caused the damage complained of.”

And the authority is the case of Dansk v Wheelock Marden [1994] 2 HKC 264 at page 282(B) to (C).

12.  With these principles in mind I examined what is provided by the Plaintiff as regards the factual basis for his claim.  The Statement of Claim itself did not plead any facts.  The only thing that it pleaded is by reference to what had been set out in what the Plaintiff called a statement to the police.

13.  Amongst the documents attached to the Statement of Claim there is a document with a title called, “Witness Statement Against C J Justice Andrew Li and Others” in report No. CRN0901336.

14.  What was set out in that statement are some serious allegations against the current Chief Justice, Justice Ma.  The Plaintiff said as follows:

“I am the above informant. I am a solicitor no longer in practice since 2004 as a result of certain High Court actions. In the course of these High Court actions I discovered in the court’s library that for all the cases tried and heard before Mr Justice Ma and for those cases represented by solicitors such as Herbert Smith and Johnson Stokes & Masters and counsel from Temple Chambers the successful rate is 100 per cent.

In any event, I brought this discovery to the attention of the Chief Justice, Mr Andrew Li by attending the Court of Final Appeal in person and his clerk asked me to write down the factual events and a written reply is given in that he claimed judicial independence and he would not comment further.”

15.  Pausing here, nothing in these paragraphs said anything about a conspiracy directed against the Plaintiff, not to mention a conspiracy to injure the reputation and his legal practice.

16.  The Plaintiff does not disclose anywhere in the documents he presented to this court what are the cases he referred to in these paragraphs.  For all I know the mere fact that Mr Justice Ma in his judgment came to a conclusion in favour of a particular team of lawyers does not by itself show any conspiracy between the judge, the solicitors and counsel.

17.  Take an example of a judge hearing 10 cases, even if it so happened that for 10 cases the judge concluded in favour of a particular combination of lawyers it would not show any conspiracy.  This is particularly so when the combination involves chambers and solicitor firms with many members.  The judge gave judgments and set out the reasons for his decisions in them.  If there are errors in the judgment, the judgment is susceptible to appeal.  The results could not per se be evidence of any conspiracy.

18.  Moreover, there is nothing in that paragraph to suggest there was any kind of conspiratorial agreement between the Chief Justice and the lawyers involved.  It is all the more problematic with his reference to counsel from the Temple Chambers and the two solicitors’ firms because the plaintiff has not indicated what was the time frame of his research in terms of the cases that he had examined.

19.  I say this not only because of the desirability of precision but also a matter of substance.  The Plaintiff is suing barristers practising at Temple Chambers without specifying the date of the alleged conspiracy.  Membership of chambers change from time to time and likewise membership of a solicitor firm.  Thus, it is not clear and it is unacceptably embarrassing for an allegation of this sort to be made without specifying the time frame.  For those in the Temple Chambers and those in these two solicitors’ firms, the Plaintiff has not even gone into any particulars to give one any clue to find out whether one is allegedly involved.

20.  The witness statement continued in the next paragraph referring to some time in 2008.  The Plaintiff said he discovered that there is a court order banning him from access to courts issued by Deputy Judge Mayo at the direction of the head of High Court (at that time Justice Ma) and he said that is in breach of his human rights and the Basic Law.  He complained to the press and legislative councillors and filed a written complaint to the Chief Justice concerning this gross abuse and unlawful act. He continued:

“The Chief Justice, Mr Li, once again did nothing and instead he assigned this complaint to his clerk and must have entered into an agreement with Mr Justice Ma to obstruct and pervert the proper administration of justice, namely, to carry out an investigation of this complaint and in a written letter dated 3 April 2009, signed by the judicial clerk, Madam Au Yeung, she stated that there is nothing that Mr Justice Ma wished to add further on comments made by the Chief Justice Li and she signed on behalf of Mr Justice Ma.

Previously the purported replies from the so-called clerk to Chief Justice Li had not been signed and all pointed to one conclusion, namely, the matter if of judicial nature and there is nothing the Chief Justice could do about court orders which is clearly unlawful on record.”

21.  Pausing here, I must point out is that the Plaintiff does not pinpoint any factual matters or any evidence to suggest that the court order against him made by Deputy Judge Mayo was made at the direction of Justice Ma.  According to my understanding the relevant court order is a restrictive application order [“RAO”] made in another set of proceedings in accordance with the prevalent practice.

22.  Therefore I see no basis for the Plaintiff to suggest that this order was made specifically at the direction of the Chief Judge of the High Court at that time, namely Justice Ma.

23.  In terms of the validity of an order of this sort, that had been explained in a number of authorities, including the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share [2005] 1 HKLRD 473.  Again I need not go into details of those authorities.  Since then a practice direction (PD 11.3) has come into effect providing for the procedures and mechanism for making this sort of orders.  I see no basis for suggesting that the RAO was in contravention of the human rights of the Plaintiff or in breach of any of his rights under the Basic Law.

24.  Thus it was not surprising that the then Chief Justice, Chief Justice Li, did not deem it necessary to take the matter further in respect of his complaint.  Despite that, the Plaintiff now sees fit to make very serious allegations against the former Chief Justice and Chief Justice Ma by alleging that they have or must have entered into an agreement to obstruct and pervert the proper administration of justice.

25.  These are serious allegations which a litigant must have proper factual foundation before he can advance the same in front of a court.  The Plaintiff’s Statement of Claim as well as his documents do not disclose any shred of evidence in support of such serious allegations.

26.  The Plaintiff apparently seeks to make something out of the reply letter from Justice Ma’s clerk in terms of he having nothing to add.  I fail to see how this can take his case further.

27.  In considering of the evidence put before the court in support of the allegations of the Plaintiff, one has to bear in mind primarily his claim is for a conspiracy against him in terms of his reputation and legal practice.

28.  Taking all the materials of the Plaintiff into account, I am unable to see anything which merits any further investigation of the matter.

29.  In his Statement of Claim the Plaintiff also referred to support by overseas governments, including the U.S. government, the Iran government and the Japan government.  If one looks at the documents attached to his Statement of Claim these were just letters from the foreign State Departments acknowledging receipt of his letter.  There is nothing in those responses to suggest that the foreign governments have any reasons to support him.

30.  On the whole one can see plainly and obviously that this is a piece of vexatious litigation with no proper basis in terms of facts and evidence to support very serious allegations against the Chief Justice and the former Chief Justice as well as the other Defendants.

31.  I am satisfied that this is a proper case that the court should exercise its power to strike out on its own motion on the ground that the claim by the Plaintiff is vexatious and an abuse of process.

32.  For all these reasons I now decide to strike out the Plaintiff’s claim and the action is dismissed.

(Submission re RPO application and costs)