THE LEGISLATIVE COUNCIL COMMISSION v. SIXTUS LEUNG CHUNG HANG

DCCJ 4497/2017

[2019] HKDC 1691

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4497 OF 2017

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DECISION

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1.  There are three applications before the court:

a)     The Intended Party’s Ex-parte summons filed on 17 December 2018 (“the 1^st Ex-parte Summons”);

b)    The Intended Party’s Ex-parte summons filed on 12 March 2019 (“the 2^nd Ex-parte Summons”);

c)     The Plaintiff’s cross summons filed on 5 September 2019 to dismiss the 1^st and 2^nd Ex-parte Summons (“the Cross Summons”).

Background

2.  This action concerns a recovery of remunerations paid by the plaintiff to the defendant (“the Action”). The Intended Party is not a party to the Action and has been acting in person all along.

3.  Without any of the parties involved calling her to do so, the Intended Party took it upon herself to apply to give evidence in the Action. Her ex-parte and inter-partes applications for the said purpose were dismissed by Registrar Ho and Master SP Yip on 13 November 2017 and 26 June 2018 respectively (the “Masters’ Decisions”).

4.  The Intended Party appealed against the Masters’ Decisions to the Court of Appeal (“CA Appeal”). This was dismissed on 17 September 2019 as an abuse of process.

5.  On 16 November 2018, the Intended Party sought to appeal on an ex-parte basis against the Masters’ Decisions before a District Judge (the “DC Appeal”), the hearing date was fixed for 10 December 2018 before this court.

6.  On 5 December 2018, the Intended Party took out an ex-parte application to adjourn the DC Appeal, but on 6 December 2018, Registrar Ho directed that the hearing should proceed as scheduled.

7.  On 10 December 2018, the Intended Party did not appear at the hearing. This court therefore dismissed the DC Appeal.

8.  On 17 December 2018, the Intended Party then took out the 1^st Ex-parte Summons which sought to “restore” the DC Appeal. She alleged that the direction of Registrar Ho did not reach her in time. The hearing was scheduled for 15 March 2019.

9.  On 12 March 2019, the intended Party took out the 2^nd Ex-parte Summons to seek to adjourn the hearing of 15 March 2019 and repeated her applications which were the subject of the Masters’ Decisions. The hearing was adjourned to 9 December 2019.

10.  The plaintiff was only informed of the Intended Party’s appeal and the existence of the the 1^st and 2^nd Ex-parte Summons by a letter from the Registrar dated 27 July 2019. The plaintiff took out the Cross Summons to apply to dismiss the 1^st and 2^nd Ex-parte Summonses.

Discussion

11.  This is not a hearing (or a re-hearing) for the DC Appeal: that has already been dismissed by this court on 10 December 2018. The Intended Party may only be seeking the court to exercise it discretion to “re-open” the DC Appeal in the interest of justice.

Order not sealed

12.  One argument she advanced is that the order for dismissal of the DC Appeal has not been sealed. However, the failure to seal the order lies directly on the part of the Intended Party since she has failed to file a draft order for sealing. Further, the plaintiff has never been informed of the DC Appeal (being an ex-parte application) so could not have assisted the court in any way.

13.  Nevertheless, the applicable principles have been set out in the Court of Appeal Judgment in CACV 333/2018 dated 10 December 2018. This was when the Intended Party had similarly applied to “re-open” the CA Appeal. That application was dismissed:

“The Court is not fungus before the sealing of its order and it retains a discretion to re-open the case even after a judgment has been handed down. There must be good reason in the interest of justice for the case to be re-opened before the Court will exercise such exceptional power. Finality of the process is an important consideration and it cannot be right to allow another round of post-judgment submissions simply because a party puts in a summons for re-opening the case. Thus, it has been said that strong reasons are required and the power would only be exercised in exceptional cases: see Re Kennedy [2007] 5 HKC 75 at [4].”

14.  Thus the burden lies on the Intended Party to demonstrate “good” and “strong” reasons why the court should, in the interest of justice, exercise the exceptional power of re-opening the case. Such reasons must be strong enough to override the important consideration of finality of process.

Merit of the original applications

15.  When such reasons were sought from the Intended Party, and, bearing in mind that she was all along making an application to adduce evidence in this Action, it was perhaps perplexing that she was utterly unable to tell the court what evidence she has that was relevant to the Action, or at all.

16.  It was clear that the Intended Party had confused the concept of adducing evidence as a witness and applying to intervene as a party.

17.  She mentioned various “public interest arguments” which she claimed would give her the locus standi. These are simply irrelevant in the Action: this is a simple claim to recover remuneration paid. There is no need to give details of all her “arguments” but as an example, she quoted “Third Party Intervention” under “Human Rights Act 1998”. But this is a UK, and not Hong Kong, legislation.

18.  Perhaps her real reason behind these applications was her claim that she has some “beneficial interest” in the property of the defendant (details of which she claimed she could not give and no evidence was given to support such) and she alleged that the plaintiff was going after such “family assets” of the defendant. These were nothing more than bare assertions.

19.  I would think that even if this was an application to intervene, and even if there was convincing evidence of such alleged “beneficial interest” (there was none), this might only be relevant in the enforcement of any judgment in the Action. The Intended Party did not inform of the court of any basis why her alleged “benefit interest” of the “family assets” might be prejudiced under the circumstances. I therefore see no reason to allow any application for the Intended Party to intervene in the Action.

20.  As such, there is simply no merit in her applications. The Intended Party has failed to demonstrate any reason, let alone any “good”, “strong” and “overriding” reasons in the interest of justice to “re-open” the DC Appeal.

Abuse of process of the ex-parte summons

21.  Further, I would agree with the plaintiff that the ex-parte application for the DC Appeal was itself an abuse of process. Order 58 rule 1(2) of the Rules of the District Court (Cap. 336H) required, in relation to an appeal from a master to a judge in chambers, that:

“The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend before the judge on a day specified in the notice or as on such other day as may be directed.”

22.  The decision of the Master was made pursuant to an inter-parties summons so taking out an ex-parte application to appeal the same was entirely misconceived. The court has previously expressed its concern with the Intended Party’s ignorance of even the most basic legal concepts and has repeatedly suggested that she should consider seeking proper legal advice. She has clearly failed to do so and this could only be her own fault entirely.

Inordinate delay

23.  Further, there has been serious and inordinate delay for the DC Appeal. Order 58 rule 1(3) specified that:

“Unless the Court otherwise orders, the notice (of appeal) must be issued within 14 days after the judgment, order to decision appealed against was given or made and must be served within 5 days after issue...”

24.  The Masters’ Decisions were made on 13 November 2017 and 26 June 2018 respectively. The Intended Party only took out the Notice of Appeal on 16 November 2018 and even then she failed to comply with the said rule by serving it on the plaintiff.

25.  The Intended Party argued that the delay was caused by her lodging an appeal against the Masters’ Decisions at the Court of Appeal (i.e. the CA Appeal). This was clearly a mistake and again entirely her own fault. It could not be an excuse for her delay: ignorance of the law is not a defence and dragging out such a process is plainly against the important consideration of finality of process.

26.  Notwithstanding such delays already incurred, it was entirely inexcusable that the Intended Party still failed to proceed with the DC Appeal at a reasonable pace thereafter: she delayed the process for a further 9 months by taking out the 2nd Ex-parte Summons to adjourn the hearing of the 1st Ex-parte Summons.

27.  In her Affidavit in Reply, the Intended Party simply asserted that there were “inter-related proceedings going on” at “High Court, CACV, CFA and European Court of Human Rights.” She however failed to show how these alleged proceedings have any relevance to the Action.

28.  In fact, the only proceedings relevant to the Action, the proceedings concerning the disqualification of the defendant as a member of the Legislative Council, have already been finally determined in FAMV 9-10/2007 on 25 August 2017 by the Appeal Committee of the Court of Final Appeal, which unanimously dismissed the defendant’s application for leave to appeal to the Court of Final Appeal. It was on the basis of this that the plaintiff commenced the Action on 12 October 2017.

Absence from the DC Appeal hearing

29.  Under such circumstances, it was even more outrageous that the Intended Party failed to attend the DC Appeal hearing on 10 December 2018.

30.  The Intended Party sought to explain her absence by arguing that Registrar Ho’s direction (that “hearing should proceed”) dated 6 December 2018 was “irregular” because it was sent on 7 December 2018 and she was “in no position to receive” it before the hearing on 10 December 2018.

31.  I find no irregularity on the part of Registrar Ho or the Registry: the Intended Party sought an adjournment only some 3 working days before the hearing (which by itself was a discourtesy to the court) and she has simply assumed that this would be granted. The proper practice if she really has not received any approval prior to the hearing was that she should have attended the hearing. That she failed to do so was entirely her own fault.

Conclusion

32.  There is clearly no reason, let alone “good” and “strong” ones, for the court to exercise the exceptional power of re-opening the appeal against the Masters’ Decisions in the interest of justice. The conduct of the Intended Party constituted a continuous attempt to abuse the Court’s process which has served no purpose other than to delay the Action.

33.  I would therefore make the following order:

i)     The 1^st and 2^nd Ex-parte Summonses be dismissed; and

ii)    Order in terms of the plaintiff’s Cross Summons.

Costs

34.  This is clearly a case where the court should exercise its power to show its disapproval of the vexatious nature of her various applications which constituted a flagrant and repeated abuse of the court’s process.

35.  As such, there be an order nisi for the Intended Party to pay the plaintiff’s costs on an indemnity basis to be taxed if not agreed.