MUI PO CHU v. MOI OAK WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 85, 89 & 90
(Civil)

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J U D G M E N T

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Mortimer, V.-P. :

1. These are appeals before us from orders of Hartmann J dismissing appeals against orders of the master. The appellant, Mui Po-chu, is regrettably well-known to this Court and to other courts in this building. She is the beneficiary of her deceased mother's estate and entitled to one-sixth of it. Moi Oak-wah, the respondent and her father, is the administrator of the estate. There are proceedings relating to the administration of that estate which have been before the courts now for some time. There is a serious dispute between Miss Mui and her father about the administration.

The background

2. When Miss Mui last appeared before this division of this Court on 24 February 1998, we invited the parties to consent to an order which sought to have the father submit a final account in the administration proceedings. On 21 April 1998 final accounts were filed under his affirmation.

3. The order which we made by consent provided for the administration proceedings to continue before the Court of First Instance so that the issues between the parties could be resolved and so that if any issue arises on the final account, Miss Mui could apply to the Court of First Instance for directions for its resolution. That would appear to be a perfectly straightforward and relatively simple means by which the issues in this matter will be decided.

4. But the history shows that Miss Mui has other ideas. I am not going to set out the whole of the somewhat miserable history. It suffices to say that Miss Mui has brought a multiplicity of proceedings, most of which have failed and in a large number she has been ordered to pay the costs. But she seems unable to resist bringing proceedings.

5. There were a number of issues in front of the judge below. He dealt with them in a manner which can only be described as impeccable. The patience with which he considered Miss Mui's contentions and dealt with them one by one are admirable. Without his judgment I would have found it extremely difficult to follow Miss Mui's case and to make any adjudication upon it.

The Order 14 proceedings

6. The first appeal before Hartmann J concerned O14 proceedings. In October 1997, before the consent order made by this division of the Court, she issued a writ claiming against her father the sum of $537,048.48 saying that is a sum to which she is entitled as a one-sixth's part of the estate. It is a claim which is wholly misconceived. It is not a claim in the administration action. It is a separate claim. The genesis is to be found in proceedings before Woo J in the administration action in December 1996. He gave judgment on 3 January 1997 in which he mistakenly allowed a counterclaim against Miss Mui by her father for that sum. Miss Mui appealed Woo J's judgment. The Court of Appeal set aside the counterclaim because in administration proceedings the counterclaim was misconceived. Just as that counterclaim was misconceived so is the claim brought now by Miss Mui on the basis that she is entitled to the money because the counterclaim failed.

7. As this appears to be a separate claim for the money, it was not apparent to the master that this action is misconceived and that the issue part of the administration proceedings. Nor did it occur to the judge because the only live issue before him concerned discovery of documents. It is not necessary to go further into that matter. All that needs to be said is that these proceedings - 1997 No. A11507 - are wholly misconceived, and an abuse of the process. In those circumstances we order that they be struck out. The issue raised by them will be dealt with in the administration proceedings. That resolves the first appeal.

The remaining appeals

8. The second appeal concerns a number of orders for costs. The first is this. On 11 April 1997 the Court of Appeal made an order for costs when the father's counterclaim was set aside. The applicant considered that that order affected a number of other orders for costs in interlocutory matters dealt with by Woo J in his judgment. The situation was this. By its order, the Court of Appeal dealt with the question of costs. Woo J's order was varied so that the order that the appellant was to pay the respondent's costs of the action and of the counterclaim was discharged. But his order concerning the interlocutory matters was undisturbed.

9. Turning to Woo J's order on the interlocutory matters, he had before him six orders in which the costs had been reserved. I set them out:

(a) Order dated 11 March 1996 made by Jerome Chan J,

(b) Order dated 19 March 1996 made by Jerome Chan J,

(c) Order dated 26 June 1996 made by Jerome Chan J,

(d) Order dated 2 July 1996 made by Woo J ,

(e) Order dated 19 July 1996 made by Woo J, and

(f) Order dated 2 March 1997 made by Woo J.

10. Woo J ordered that on the first two, there should be no order as to costs and on the last four, that the defendant's costs should be borne out of the estate and there should be no order regarding the plaintiff's costs - the plaintiff being Miss Mui.

11. Those were the only orders the Court of Appeal dealt with. Miss Mui takes the point that in some way the order of the Court of Appeal affects other interlocutory orders for costs. The answer is simple. It does not.

12. The following orders for costs she now challenges on that basis and others. She challenges an order for costs made in the Court of First Instance on 1 December 1996 when Cheung J dismissed an appeal and awarded costs against her. There was an order of Chan J (as he then was) dismissing an application for interim payment from the estate and he ordered costs against her on 26 January 1996. There was a further order for costs when a summons was taken out by Miss Mui for information on rentals and dismissed by Jerome Chan J on 24 May 1996. Finally, there was an order of Yeung J when an interlocutory summons issued by the appellant was dismissed.

13. She advances other arguments on those orders suggesting that because she won later interlocutory proceedings with related subject matter those orders are of no effect. These matters were dealt with Hartmann J below. There is absolutely nothing in any of the points made by Miss Mui. The arguments she has advanced both below and here are quite misconceived.

The consent order

14. There is another argument I should deal with. It is the submission that the consent order made by this Court on 24 February 1998 in some way affected the order for costs made by an earlier division of this Court. But again that is quite misconceived.

Two summonses

15. The final matter is this. Two new summons were dealt with by Hartmann J - presumably by consent. These related also to the sum of $537,048.48. The applicant wanted to appeal against Master Chung's refusal to issue a warrant of execution in respect of that sum. Again, those matters were completely misconceived.

16. The judge was right to dismiss the appeal in respect of each and every matter that was in front of him.

The administration action

17. That is sufficient to conclude these matters. So far as I am concerned, I would dismiss these appeals. In passing I note that the judge tried - along with others - to assist Miss Mui by suggesting to her that instead of issuing continual summonses - most of which are completely misconceived and which result in costs orders against her - she should concentrate on having the issues dealt with in the administration proceedings. She should go to the Court of First Instance and take out a summons to ask for appropriate directions so that the issues she wishes to raise may be properly dealt with in the administration proceedings. Those are the proper proceedings for dealing with these issues. She should concentrate on that if she can bring herself to do so.

18. I would dismiss these appeals.

Godfrey, J.A.:

I agree that these appeals must be dismissed.

19. We should, in my judgment, strike out the action 11507 of 1997 as an abuse of the process of the court, and set aside all orders made in that action save to the extent that the same make provision for payment of the defendant's costs by the plaintiff.

20. So far as the remainder of the matters before us are concerned, I would repeat the suggestion made by my Lord, the Vice-President that Mui Po Chu, the plaintiff in the administration action, MP 1927 of 1995 would be well-advised to follow, in future, the procedure indicated in our order of 24 February 1998 for the resolution of any further issues between the plaintiff and her father, the defendant in the administration action, by applying for directions in the administration action as to the resolution of any such issue. It is a thousand pities that so far the plaintiff has failed to take advantage of the order we made on 24 February 1998, which was intended and designed to give her an opportunity properly to prosecute her claim as a beneficiary in the administration action.

21. The judge, Hartmann, J., in disposing of the plaintiff's appeals in relation to the orders for costs of which she complained, said this :

"I should also mention that the Respondent complained to me that his daughter's summonses were vexatious and were beginning to affect his mental, emotional and physical well-being."

22. The judge concluded his judgment as follows :

"Final note (vexatious litigation)

While I appreciate that the Appellant believes deeply in the justice of her cause, I have advised her as gently as I can that her continual issue of summonses may possibly result in a finding against her that she is conducting her litigation in a frivolous and vexatious manner, indeed in a manner that is oppressive to the Respondent. I have, therefore, urged her to be more cautious before she issues further process."

23. I must say with regret that, in my judgment, the time has come for steps to be taken which will ensure that the defendant is not troubled with any further process by the plaintiff other than in accordance with the provisions of our order of 24 February 1998. But it is not for us to take steps to declare the plaintiff a vexatious litigant. Those matters must be left to the defendant and/or to the Secretary of Justice.

24. I would add also this.

25. Much of the material placed before us today by the plaintiff gives cause for concern as to the state of her mental health and in particular as to whether she is capable of managing and administering her own affairs. The court has power under the Mental Health Ordinance, Cap. 136, Section 7(1) to make an order directing an inquiry whether any person subject to the jurisdiction of the court who is alleged to be a mentally disordered person is of unsound mind and incapable of managing herself and her affairs. But we cannot do so of our own motion. Under Section 7(3) :

"Application for such inquiry may be made by any person related by blood or marriage to the person alleged to be a mentally disordered person, or by any public officer nominated by the Chief Secretary."

26. So again, it is not for us to take any steps in this connection. But since the approach described by Hartmann, J. as "gentle" has produced no useful result, the defendant, or the Secretary for Administration, should consider doing so, in order to avoid the court having its time taken up by further misconceived applications by the plaintiff.

27. As I have said, I too would dismiss these appeals.

Mayo, J.A.:

28. I agree that these appeals be dismissed and I have nothing to add.

Mortimer, V.-P.:

29. In those circumstances the High Court Action A11507 of 1997 is struck out together with all the proceedings in that action save for the orders for costs in favour of the respondent. The remaining appeals are dismissed.