YUEN OI YEE LISA v. ROBERT LAM AND ANOTHER

HCA 2281/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2281 OF 2007

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REASONS FOR DECISION

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1.  At the hearing on 15 November 2007, I held that,

(a)	This action is within the scope of the RPO made by this court against the Plaintiff [“Yuen”] on 17 August 2007 and she did not obtain RPO leave before she issued the writ herein;
(b)	RPO leave would not be granted;
(c)	The action should be dismissed with costs.

2.  The following are reasons for my decision.

3.  The RPO made on 17 August 2007 in HCA 2735 of 2006 is not confined to the subject matters and parties concerned in that action.  I have made that clear in my Reasons for Decision of 22 August 2007 in HCA 2735 of 2006, see Paras. 18 to 23.  I considered that a more embracive RPO was a necessary and proportionate measure to curb the vexatious and abusive activities of Yuen in view of her litigation history.  It is now well established in Hong Kong that the making of an appropriate RPO against a vexatious litigant is in line with a litigant’s right of access to court: see Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473; Ng Yat Chi v China Resources [2005] 3 HKC 506; Secretary for Justice v Ma Kwai Chun [2006] 1 HKLRD 539; Secretary for Justice v Yuen Oi Yee [2006] 1 HKLRD 679.

4.  Yuen contended that it was unfair to her to impose a RPO regarding causes of action arisen in the future.  That argument is unsound.  A RPO confining to causes of action arose prior to the making of the order would not serve much purpose.  Experience shows that a vexatious litigant can always come up with some new causes of action and the purpose of a RPO is to curb such abuse.

5.  In any event, there is no appeal against the RPO of 17 August 2007 and it is binding on Yuen.

6.  Even though Yuen referred to Section 66 of the Personal Data (Privacy) Ordinance in her claim in this action, in substance the claim as pleaded in the Statement of Claim is to recover damages for “injury to feelings”.  Further, she alleged damages to her reputation (see paras.17 and 18).  Thus, in essence, it is also a claim for defamation.  The plea for exemplary damages and aggravated damages does not add any substance to her claim.

7.  In Ng Yat Chi v China Resource HCA 424 of 2005, 13 May 2005, Para.13, I said that the court should look at the substance of a fresh action as opposed to its form to determine whether it comes within the scope of a RPO.

8.  In the present case, the RPO of 17 August 2007 encompasses all claims by Yuen of the nature set out in Part C of Schedule 1.  Injury to feeling and defamation are claims covered in Part C.

9.  Thus, this action is within the scope of the RPO and Yuen should have asked for leave before she could commence the action.

10.  Yuen was aware that she should apply for leave.  As a matter of fact, she wrote to this court to apply for leave for the same claim by letters dated 23 October 2007 and 5 November 2007.  Yet without leave from this court, she commenced the present action on 29 October 2007.

11.  Yuen said since her letter of 23 October 2007, she subsequently considered that she did not need leave to issue the writ. This is unconvincing.  There was simply no reason why she did not know that the RPO of 17 August 2007 embraced all actions of the nature set out in Part C as I have clearly said so in my Reasons for Decision of 22 August 2007 in HCA 2735 of 2006.

12.  She had taken the advantage that the Registry had not been able to seek direction from this court and pressurized the staff at the Registry to let her file the Writ.  This is evidenced by her letter to the Registry on 29 October 2007.  She quoted my direction to her on 13  June 2006 in the context of another action misleadingly and asserted that this court let her determine whether a new action falls within the scope of a RPO.

13.  I must point out that this court said nothing of that sort. What I said in the direction of 13 June 2006 is against the background that she had previously wrote numerous letters to this court to seek advice regarding whether an intended action is within the scope of a RPO.  I have made clear to her repeatedly and I reiterate here again that it is not the function of this court to provide her with legal advice.  This court only adjudicates on a course adopted by a litigant: thus if Yuen applies for RPO leave, this court will decide whether leave should be granted; alternatively if she files a claim without leave, this court will decide whether leave should have been applied for.

14.  What I did on 13 June 2006 was to remind her that she had to decide her course of action for herself.  It means she has to bear the consequence of her choice.  If she decided herself that an intended claim is not within any RPO, she could proceed to file a new claim with the court.  I also made clear that if she did so, then it would be for the court to consider whether leave should have been applied for in the first place.  If the court decides that RPO leave is required and it has not been applied for, the action is liable to be struck out and dismissed.

15.  The Registry acted in accordance with Para. 12 of the RPO of 17 August 2007 in referring the case to this court.

16.  After hearing Yuen, I concluded that RPO leave should not be granted and the action should be dismissed with costs.  Yuen had not set out the basis of her claim under Section 66 of the Personal Data (Privacy) Ordinance: she did not identify any alleged contravention of that ordinance in her pleadings.

17.  The crux of Yuen’s complaint was that Miranda Lam sent a set of documents to the employer of Demy on 20 October 2007 including Yuen’s undertakings to this court on 18 October 2007 and her bail document.  She said she took offence at the release of her personal data by Miranda Lam.  The undertakings were given to the court at a hearing opened to the public.  The court has not imposed any restriction on any reporting of what transpired at that hearing.

18.  The said bail document was allegedly faxed by Yuen herself to various persons who have nothing to do with her investigation by the Immigration Department. In other words, it was Yuen herself who chose to release to such information to some strangers in the first place.  The recipients have not asked for such information and they have not collected such information.  Yuen chose to impose such information on others.

19.  In such circumstances, it is difficult to suggest that the recipient has collected the information for one purpose and misused it for another purpose.  The recipient has not collected the information in the first place and they were sent to him or her for no apparent purpose.

20.  It was Yuen who had misused the bail document and she could not unilaterally impose a duty of confidence on someone else when that person has not asked her for the information in the first place.

21.  Given the above, I agree with Ms Lam (solicitor for the Defendants) that it does not lie in her mouth to suggest she suffered any injury to feelings on account of the misuse of her bail document.

22.  I also have reservations about Yuen’s contention that it must have been Miranda Lam who sent the documents on 20 October 2007.  But in view of the above, I need not refer to that at length.

23.  Insofar as Yuen was also trying to claim for defamation in this action, I hold that it was not even arguable.  The documents represented a true state of affairs.  There is no basis for asserting any innuendo and Yuen has not properly pleaded any case of innuendo.

24.  The whole claim is a waste of time and vexatious.  Further, as contended by Ms Lam, the timing of this Writ suggests that it was issued with collateral purposes,

(a)	To delay the bankruptcy proceedings against Yuen in HCB 8954 of 2007;
(b)	To obstruct the transfer of HCA 2742 of 2006 to the District Court as evidenced by Yuen’s summons for consolidation of this action with HCA 2742 of 2006;
(c)	To cause maximum damages to the Defendants in terms of legal expenses.

These are self-evident from Yuen’s letter of 29 October 2007 to solicitors for the Defendants.

25.  Yuen has once again proved herself to be a compulsive vexatious litigant and if she does not desist from her wrongful behaviour (and she should consider seeking professional counseling service to deal with her problems), this court has no alternative but to impose firmer measures against her to protect the general public and this court from her abuses of the court process.