THE SECRETARY FOR JUSTICE v. YUEN OI YEE LISA

HCMP 1087/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1087 OF 2005

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HCA 96/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 96 OF 2005

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HCA 509/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 509 OF 2004

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BETWEEN

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REASONS  FOR  DECISION

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1.  On 27 May 2005, the Secretary for Justice applied by originating summons for what I would call a Section 27 order against Lisa Yuen [“Yuen”], the defendant in HCMP 1087 of 2005.  The application was made under Section 27 of the High Court Ordinance.

2.  Yuen issued a summons to strike out the Section 27 application and I dismissed her striking out application on 28 October 2005.  The substantive Section 27 application was adjourned at the request of the Secretary for Justice to 20 December 2005.  I have accounted for these in my Reasons for Decision of 3 November 2005.  On the materials before the court, the main dispute seems to be whether a Section 27 order is the proportionate measure to deal with Yuen as opposed to other less draconian orders.  Of course, Yuen did not accept that she is a vexatious litigant and she objected to being branded as such.

3.  After the hearing of 28 October 2005, the claim by Yuen (as plaintiff) against Heath Company Limited [“Heath”] in High Court Action No. A96 of 2005 was struck out by A Cheung J on 16 November 2005.  The learned judge also directed the question whether a Restricted Proceedings Order [“RPO”] should be made against Yuen to be heard before me on 20 December 2005.  Directions were also given as to the filing of evidence regarding the RPO matter.

4.  There appears to be some misunderstanding on the part of the solicitors for Heath.  Evidence was mistakenly filed by them in the Section 27 proceedings.  Heath is not a party to the Section 27 proceedings and it has no right to be heard in the context of that application.  A Cheung J did not grant leave to Heath to intervene in the Section 27 proceedings.  The learned judge only directed that the RPO matter was to be heard by this court on 20 December 2005 in the context of HCA 96 of 2005.

5.  On 8 December 2005, this court held a direction hearing.  That hearing was useful not only in terms of rectifying that mistake, but also in terms of the developments leading to the final resolution of the Section 27 proceedings in the way it did on 20 December 2005.  At that hearing, Yuen indicated that she did not wish to continue with her proceedings other than her claims against a person whom I shall call Lai.  To facilitate the effective consideration of the RPO matter, a draft RPO and RAO was given to the parties for comments in the event that this court were to conclude that the case warrants a RPO and RAO. 

6.  On 30 November 2005, in HCA No. 509 of 2005, Yuen (as plaintiff in that action) issued a summons returnable before me at the same time as the Section 27 proceedings.  Lai is the defendant in that action.  Another summons was issued by Yuen on 19 December 2005.  Given that Lai will attend the hearing of 20 December, this court considered it was appropriate to give advance notice to Lai about the draft RPO and RAO and invite comments from him.

7.  Yuen issued several summons in HCMP 1087 of 2005 which had to be dealt with on 20 December 2005,

(a) Paragraphs 2 and 3 of a summons dated 27 October 2005;

(b) A summons dated 7 December 2005;

(c) A summons dated 12 December 2005.

8.  Altogether, three set of proceedings (with several summonses issued thereunder) were before me on 20 December 2005,

(a) The Section 27 proceedings in HCMP 1087 of 2005 and Yuen’s summonses;

(b) The RPO matter in HCA 96 of 2005;

(c) The summonses in HCA 509 of 2005 taken out by Yuen against Lai. 

9.  On 20 December 2005, after hearing all the parties, this court indicated that a RPO and RAO would be made.  Thereupon, the Secretary for Justice decided to withdraw the Section 27 proceedings.  The RPO and RAO was made on 28 December 2005.

The RPO and RAO

10.  The litigation history of Yuen is set out in the following judgments,

(a) Judgment of Judge C B Chan of 27 April 2004 in DCCJ 5441 of 2003;

(b) Judgment of the Court of Appeal of 18 March 2005 in HCMP 2038 of 2004;

(c) Judgments of Judge To of 4 June 2004 and 26 July 2004 in DCCJ 7079, 7080, 7081, 7184, 7185, 7257, 7258 of 2003;

(d) Judgment of Deputy Judge Tracy Chan of 29 January 2005 in those actions;

(e) Judgment of Judge H C Wong of 20 July 2005 and 12 August 2005 in DCCJ 7079, 7080, 7081, 7184, 7185, 7257, 7258 of 2003 and DCCJ 2702 of 2004, DCCJ 378 and 442 of 2005;

(f) Judgment of Judge Yuen of 27 May 2005 in DCEO 18 of 2004;

(g) Judgment of Judge Marlene Ng of 10 August 2005 in DCCJ 3524 of 2005;

(h) Judgment of Tang J of 2 December 2004 in HCA 509 of 2004; 

(i) Judgment of A Cheung J of 16 November 2005 in HCA 96 of 2005.

It was attached to the judgment of A Cheung J a table setting out the progress of the various actions commenced by Yuen and their disposals.  I am not going to recite what have been set out in those judgments.  As I said in Paragraph 33 of my judgment in Choy Bing Wing v Chief Executive of HKSAR  HCA 2351 of 2005, 23 December 2005, this court is entitled to consider what has been decided in previous actions and the findings of the judges as to the nature of and vexation occasioned by the previous actions in dealing with a RPO and RAO matter as well as a Section 27 application (see also Para. 41 of my judgment in Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16 December 2005). 

11.  On the materials before me and in the light of the conclusions set out in those judgments, there is no doubt in my mind that it is necessary and proportionate to impose restraints upon Yuen to prevent further abuses of the legal processes.  She had commenced one action after another seeking to litigate on matters basically arising from the termination of her employment.  Most of her actions had been struck out by the court.  The vexatious nature of her actions are set out in those judgments and it is not necessary for me to repeat the same.  She had difficulties in accepting unfavourable results and she simply commenced fresh proceedings after defeats in previous actions.  She conducted litigation in manners calculated to increase the costs burden on her adversaries.  She had occasionally resorted to using insulting languages in putting forward her case, e.g. by calling others “monkeys”.  She repeatedly made unfounded allegations against Tang JA and lawyers acting for her opponents, including allegations of conspiracy.  She has threatened to commence legal proceedings against the lawyers.

12.  Another form of vexation exhibited by Yuen is her propensity to write numerous letters to the court and copied her correspondence with others (including lawyers acting for the other sides) to the court.  It is not appropriate for a litigant to write to the judge unless there are specific matters that the court seeks the parties’ written comments.  This rule applies irrespective of whether a litigant is legally represented or otherwise.  If a party has an application to make, the proper course is to issue an inter parte summons.  If he or she feels that there are factual matters that are relevant to any application before the court which he or she wishes to put forward, an affidavit or affirmation should be filed.

13.  A litigant in person cannot write to the court in the pretext of seeking guidance or direction.  It is not the function of the court to give advice to a litigant.  Hence, I included the following paragraph in my directions on 21 September 2005,

“There should not be any interim communication with the court by letters without leave.  Any party intending to apply to court for directions should apply by summons.  Correspondence sent to the court without leave will not be read.”

14.  Yuen had observed that direction for a while.  Unfortunately, after the hearing of 28 October 2005, she relapsed and repeatedly wrote to this court without permission.  The situation worsened after mid November and recently she wrote to this court almost on a daily basis.  Notwithstanding that her attention had been drawn to the aforesaid direction, she persisted in adopting such course.

15.  In the future, as stated in my RPO and RAO, this court will not read any correspondence sent to this court by Yuen except her RPO leave application or her RAO leave application.

16.  I annex to this Decision the terms of the RPO and RAO that I made against Yuen.  Several matters require explanation.  I am grateful to the parties in respect of their inputs and assistance in these regards.

17.  The first point that I want to discuss is whether a RPO can cover subject matters which have not been litigated.  In Ng Yat Chi v Max Share [2005] 1 HKLRD 473, the Court of Final Appeal discussed RPO in the context of re-litigation.  However, in my judgment, it would be wrong to read the judgment of the Court of Final Appeal as confining the use of RPO to deal with abuses stemming from re-litigation.  As I said in Secretary for Justice v Ma Kwai Chun HCMP 1471 of 2005, 16 December 2005, the categories of abusive proceedings are never closed and re-litigation is a common but by no means exhaustive form of vexation.

18.  The Court of Final Appeal clearly expected the court in the exercise of its inherent jurisdiction to develop flexible and proportionate responses to meet the challenges presented by vexatious litigants and abuses of court processes, see Paras. 6 and 101 of the judgment in Ng Yat Chi.  The Chief Justice identified the justification for RPO at Para. 8,

“Just as the court can protect itself against anticipated abuse by making a preventive order directed at future applications in existing proceedings, so it can similarly protect itself by making a preventive order directed at abusive proceedings that may be institute in the future.  The justification is that in view of the past conduct of the party concerned, it is apprehended that that party may commence fresh proceedings which may be abusive.”

19.  If the materials before the court support a conclusion that the party concerned is, unless restrained by the court, likely to commence proceedings that are not re-litigations but are otherwise abusive, I see no reason why the court should not grant a RPO to prevent the abuse.  It is well established that the court can restrain the issue or advertisement of a winding-up petition if such petition is an abuse of process.  The abuse in that context usually has nothing to do with re-litigation.  In my judgment, in an appropriate case, the court should take immediate step by way of RPO to prevent abuses not involving re-litigations.  I have in fact done so in Choy Bing Wing v Chief Executive of the HKSAR HCA 2351 of 2005, 23 December 2005 at Para. 43.

20.  Mr Wong SC properly reminded this court that in holding that the scope of a RPO can extend beyond re-litigation, we are taking a step beyond the RPO sanctioned by the Court of Final Appeal in Ng Yat Chi.

21.  In the present context, having regard to the history of the disputes between the parties and the conducts of Yuen in the past, I am satisfied that it is appropriate to include the matters set out in Part B of Schedule 1 as subject matters of the RPO.  Most of them are matters that have been canvassed in previous actions.  As far as the new matters are concerned, they could properly be regarded as matters arising from the conduct of the previous actions or relating thereto, e.g. debit notes, banana coupons, injury to feelings.  Since Yuen had threatened to launch legal proceedings regarding those subjects and such claims are clearly without any merits whatsoever and given her propensity as shown by her conduct of her previous actions, I am of the view that they should be included in the RPO.

22.  For the benefit of Yuen, I will explain why her so-called injury to feelings claim has no merit.  The crux of her complaint is that the Section 27 proceedings were engineered by solicitors for Heath and it had caused her substantial psychological harm.  She regarded the Section 27 application as unmeritorious and by her summons of 27 October 2005 counterclaimed damages for injury to feelings against the Secretary for Justice and that solicitors firm.  Procedurally, that solicitors firm is not a party in HCMP 1087 of 2005 and Yuen had not applied for leave to join that firm as a party.  Hence, she could not advance such a “counterclaim” in the context of this set of proceedings.  More importantly, it was the Secretary for Justice who decided to commence the Section 27 application.  Even though the solicitors might have brought the matter to the attention of the Secretary for Justice in the first place, there is nothing to suggest that the Secretary had not exercised independent and professional judgment before coming to a decision to issue the proceedings in HCMP 1087 of 2005.

23.  As I said in Ma Kwai Chun, the Secretary for Justice should have balanced the public interest in curbing abuses of process in civil proceedings and the constitutional right of a litigant’s access to court before making such a decision.  The Secretary for Justice was represented by respectable and responsible counsel.  I did not discern anything to suggest that such balance had not been taken into account prior to the issue of proceedings.  To the contrary, once this court indicated that a RPO and RAO would be made, the Secretary properly withdrew the Section 27 application.

24.  One cannot judge the merit of the Section 27 application by reference to the ultimate withdrawal.  The law relating to RPO is in a state of flux and it is understandable that prior to this judgment, those advising Heath or the Secretary for Justice considered that a RPO confining to abuses by way of re-litigation would not be a sufficient protection.  Yuen had demonstrated by her conduct in the previous actions that she does not lack ingenuity in terms of putting forward new causes of action to create a platform for ventilating her vendetta against her previous colleagues.  Insofar as necessary, I would hold that the Secretary for Justice acted reasonably and responsibly in commencing HCMP 1087 of 2005.

25.  Further, the Secretary had all along conducted the Section 27 application reasonably.  Given the constitutional implications of a Section 27 order, this court cannot make such an order without the examination of the merit even though a respondent consents to the same.  Hence, Yuen’s offer for a consent summons to be issued cannot obviate a hearing of the matter.  In any event, Yuen withdrew her consent shortly before the hearing on 28 October 2005.

26.  Given my conclusion as to the propriety of the Section 27 proceedings, Yuen’s injury to feelings claim is doomed to fail.  In so saying, I should not be taken to mean that a Section 27 order would be made if the matter were pursued.  Although I am inclined to hold that the statutory criteria under Section 27 has been satisfied, this court still has to exercise its discretion by reference to the circumstances of the case and the principle of proportionality.  The RPO and RAO is a significant factor (but not the only factor) that the court will have to take into account.  What I am saying is that irrespective of the final outcome, given the circumstances surrounding the issuing and the prosecution of the Section 27 proceedings up to its withdrawal, Yuen has no basis in law to claim any damages for whatever anxiety or suffering stemming from this piece of litigation.

27.  The next subject I shall discuss is whether the RPO and RAO should cover appeals.  In Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, the Chief Justice made some observations as to the levels of court that may make RPO and RAO in Paragraphs 14 and 15.  Ribeiro PJ further elaborated on the same at Paragraphs 125 to 137.  It would appear from their Lordships’ judgment that the power to prevent abuse of the appellate process should be exercised by the Court of Appeal (see in particular Paras. 15 and 132).  In Practice Direction 11.3, Paragraph 16 explicitly provides for the making RPO and RAO regarding appeals by the Court of Appeal.  Paragraph 15 of the Practice Direction provides for the right of appeal against a RPO and RAO and the right to appeal against refusal of RPO or RAO leave.

28.  Hence, it is not for this court to make a RPO or RAO to restrict Yuen from exercising any right of appeal.  If any party deems it necessary, he or she can take up the matter in the Court of Appeal.

29.  I now turn to judicial review.  Yuen indicated that she wishes to commence fresh judicial review proceedings.  In her summons of 7 December 2005 in HCMP 1087 of 2005, paragraph 1 sought leave to apply for judicial review against a decision of the Equal Opportunities Commission.  The Commission had discontinued with the investigation of Yuen’s complaint of gender discrimination against Heath and Lai.  Yuen subsequently brought Equal Opportunities Action No. 18 of 2004 in the District Court.  The claim was struck out by Judge Yuen on 27 May 2005.  She had been granted leave to appeal and the appeal is CACV 272 of 2005.  Based on the materials placed before me, I cannot discern any basis for judicial review.  In any event, Yuen could and should pursue her equal opportunities claims in CACV 272 of 2005 instead of proliferating litigation by commencing yet another fresh set of proceedings by way of judicial review.

30.  In Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, Paras. 19 and 20, the Chief Justice sounded a note of caution regarding extension of RPO to cover judicial review.  However, the question had been left open.  I bear in mind that under Order 53, leave is required before a litigant can commence judicial review proceedings.  However, there are material differences between a leave application under Order 53 and a RPO leave application.  The test for Order 53 leave is whether the material before the court disclosed matters which might on further consideration demonstrate an arguable case for the grant of the relief sought or a prima facie case that something warranting investigation has gone wrong, see Ho Ming Sai v Director of Immigration [1994] HKLR 21.  The judge who deals with an application for leave under Order 53 would not have the benefit of the information regarding the history of vexatious litigious activities of the applicant.  An application for leave which on its face is quite arguable may in substance be a renewed attempt to vex some third parties who had been involved in the previous saga.  In England, it was held by the Court of Appeal that once a statutory order had been made, leave was required before a litigant can apply for leave to issue judicial review proceedings, see Ex p Ewing [1991] 1 WLR 388.  This has recently been confirmed in Ewing v Office of the Deputy Prime Minister [2005] EWCA Civ 1583, 2 November 2005.

31.  Another difference between an Order 53 leave application and a RPO leave application is that the latter can be dealt with on papers whilst the former would entail a hearing if the applicant requested for the same.  One of the evils caused by vexatious litigations identified in Ng Yat Chi is the waste of judicial resources.  This applies equally to hearing vexatious Order 53 leave applications.

32.  In principle, I am of the view that a RPO can be extended to cover judicial review applications.  On the facts of the present case, given the risk of Yuen commencing judicial review proceedings that I have already alluded to, I hold it is proportionate to extend the RPO to cover applications for leave under Order 53. 

33.  I was also invited to extend the scope of RPO and RAO to cover proceedings in the Labour Tribunal, Small Claims Tribunal and Administrative Appeals Board.  Given that the Court of First Instance can make RPO in respect of proceedings in the District Court (see Practice Direction 11.3 Para. 8), I see no reason why it could not be extended to proceedings in the Labour Tribunal and Small Claims Tribunal.  An analogy can be drawn with the English Divisional Court making an order covering Employment Appeal Tribunal (see AG v Mensah [2004] EWHC 1441 (Admin), 13 May 2004).  A RPO or RAO is in substance an injunction and this court has the power to grant an injunction to safeguard the proper administration of justice.  At the same time, the exercise of such power has to be balanced against a litigant’s right of access to the court.  Hence, the terms of the RPO and RAO must be proportionate to the extent of vexation caused by that litigant.

34.  Ms Cheng helpfully referred this court to the guidance set out in Lester and Pannick, Human Rights Law and Practice on the relevant principles of proportionality applied by Hartmann J in Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 at Para. 121.  Modifying the same to fit into the present context, the following tests are relevant,

(a) The measures designed must be rationally connected to the vexation occasioned or likely to be occasioned by the litigious activities of the RPO litigant;

(b) The means used to impair the right of access to court must be no more than is necessary to accomplish the objective of curbing the vexatious litigation of the RPO litigant. 

35.  In the circumstances of the present case, I am satisfied that it is proper for this court to extend the RPO and RAO against Yuen not only to proceedings in the District Court but also to proceedings in the Labour Tribunal and Small Claims Tribunal.  She had indeed commenced proceedings in the Small Claims Tribunal.  Since the subject matter of Yuen’s complaints previously litigated revolved around circumstances leading to the termination of her employment by Heath, it is also legitimate and proportionate to include proceedings in the Labour Tribunal in the RPO.

36.  With regard to proceedings in the Administrative Appeals Board, Yuen had an appeal against the decision of the Privacy Commissioner about her complaint against Sally Chong.  Since it is the exercise of a right of appeal and I do not have full submissions on whether the jurisdiction to prevent abuses of judicial proceedings could be extended to an appellate body dealing with administrative complaints, I prefer to leave the question open at this stage.  I therefore exclude the appeal to the Administrative Appeals Board from the scope of the RPO and RAO.

Yuen’s summonses  in HCMP 1087 of 2005

37.  Paragraph 2 of Yuen’s summons dated 27 October 2005 sought to counterclaim for injury to feelings.  I have already explained why such a claim is doomed to fail.  That paragraph was therefore dismissed.

38.  Paragraph 3 of the same summons sought an order from this court that the Secretary for Justice shall donate $100,000 for charity purpose “as to be given under [Yuen’s] choice”.  That seems to be a claim advanced on the basis of Yuen’s letter dated 26 September 2005 to the Secretary for Justice in which Yuen asked the Secretary to vacate the hearing of 28 October 2005 and requested the matter be disposed of by way of a consent summons.  In paragraph 8 of that letter, Yuen unilaterally asserted that if the Secretary did not confirm the disposal of the matter by way of consent summons or vacation of hearing date of 28 October 2005, Yuen would regard the Secretary’s silence as acceptance of, inter alias, donation of $100,000 to the Tung Wah Group of Hospital.  As I have explained above, a Section 27 application is not a matter that can be disposed of by way of consent summons.  In any event, there is no legal basis whatsoever for Yuen to impose unilaterally such an obligation on the Secretary.  The court will not compound Yuen’s vexation by entertaining such an application.  That paragraph was also dismissed.

39.  Turning to her summons of 7 December 2005, Yuen asked for leave to apply for judicial review against the Equal Opportunities Commission.  For reasons already given above, I do not see any merits in that application.  Paragraph 2 of the summons sought an appeal out of time regarding HCA 96 of 2005.  This should not be a matter canvassed in these proceedings.  Application should be made to the Court of Appeal for leave to appeal out of time if Yuen so wished.  Paragraph 3 of the summons asked for leave to commence an action against the solicitors for Heath based on a debit note of $29 million and other actions against the existing defendants.  Those intended proceedings are obviously vexatious and no leave will be granted by this court.  Paragraph 4 of the summons invited this court to consider the validity of CACV 272 of 2005.  As explained above, it is not for this court to say whether that appeal is valid or otherwise.  The matter can be, if necessary, canvassed in the Court of Appeal.  On the whole, the summons was dismissed.

40.  Coming next to her summons of 12 December 2005, Paragraph 1 sought a consent summons as per the Originating Summons.  I do not need to repeat why I think the matter cannot be disposed of by way of consent summons.  Paragraph 2 sought consent summons for a RAO and RPO for all appeals.  I have explained why it is not for this court to make RPO and RAO for appeals.  Paragraph 3 related to the hearing of DCCJ 3524 of 2005 on 16 and 17 January 2006.  The RPO and RAO should have taken care of the matters and parties should have no difficulty in applying jointly to vacate the hearing on those dates.  Paragraph 4 of the summons sought consolidation and transfer of the District Court proceedings against Lai.  I have already given leave for a joint application to be made in the District Court.  Until such transfer, this court is not seized with those cases except in regard to the RPO and RAO leave applications.  Paragraph 5 of the summons sought the appointment of medical officer to assess Yuen’s injury to feelings.  That paragraph cannot survive my dismissal of Yuen’s injury to feelings claim.

Yuen’s summonses in HCA 509 of 2005

41.  By a summons of 30 November 2005, Yuen sought the following relief,

(a) An order to compel Lai to file affidavit evidence to support some of Yuen’s allegation;

(b) An order to compel other ex-colleagues of Yuen to file affidavit evidence to support Yuen’s version of facts;

(c) An order to subpoena some ex-colleagues to give evidence to support Yuen’s version of facts.

42.  There is a pending striking out application by Lai against Yuen’s claim.  The matter is therefore still at an interlocutory stage.

43.  As explained during the course of hearing, this court does not have the power to compel others to file evidence to support the case of one party.  Whether Lai wishes to file affidavit for the purpose of the striking out application is a matter for him to decide with the benefit of advice from his lawyer.  If Yuen is able to procure affidavit evidence from her ex-colleagues, she could file the same to oppose the striking out application.  However, if she could not procure their co-operation in obtaining affidavits from them, she would have to rely on her own evidence to resist the striking out application.  If her claims survive the striking out application, the matter will go to trial.  For the purpose of trial, the court can issue subpoena to compel the attendance of witnesses insofar as they are within the jurisdiction.  However, there is no guarantee that their evidence would be favourable to Yuen or otherwise.  Yuen must also have some basis for her belief that these witnesses could give relevant evidence before the court would accede to her application for the issue of a subpoena.

44.  Given that the striking out application has yet to be decided, it would not be appropriate for the court to grant the relief set out in the summons.  The summons was therefore dismissed.

45.  Yuen took out another summons on 19 December 2005.  She sought leave to file affidavit evidence or witness statement from a Miss Ford of Heath.  She had yet to procure such a witness to give her an affidavit or witness statement.  As explained above, the court cannot order a witness to give her a witness statement or affidavit.  The summons was therefore dismissed.

Ms Yuen Oi Yee Lisa alias Lisa Yuen, Lisa Lee and袁靄儀, in person
(Defendant in HCMP 1087/2005, Plaintiff in HCA96/2005 and HCA 509/2004)

Mr Horace Wong, SC and Mr Bernard Man, instructed by Department of Justice, for the Plaintiff in HCMP 1087/2005

Ms Yvonne Cheng as amicus curiae in HCMP 1087/2005

Miss Anita Lam, of Messrs Johnson, Stokes & Master, for the Defendant in HCA 96/2005

Ms Christine Tsang, of Messrs Kennedys, for the Defendant in HCA 509/2004

ANNEX
HCA 96/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 96 OF 2005

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BETWEEN

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HCA 509/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 509 OF 2004

____________

BETWEEN

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BEFORE THE HONOURABLE MR. JUSTICE LAM
IN CHAMBERS

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ORDER

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UPON hearing the Solicitors for the Defendant, the Amicus Curiae, Leading Counsel for the Secretary for Justice and Solicitors for Mr. Lai Yu Fai and the Plaintiff acting in person

IT IS ORDERED that:-

(a)  2. That all applications for leave to issue fresh proceedings covered or which may be covered by the RPO ("RPO leave applications") must be made in writing to the designated judge (and not to any other judge or to a master) enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced.

3. That at least 7 days before filing an RPO leave application, Lisa Yuen shall notify in writing each intended defendant of her intention to make such application, enclosing a copy of the aforesaid draft document by which the fresh proceedings are intended to be commenced, and if a response is received by the applicant, that she shall file a copy thereof with her RPO leave application; and that, in any event, each intended defendant shall be entitled, but shall be under no obligation, to place before the court any desired representations regarding any such intended proceedings of which he/she/it has notice.

4. That in the event that the designated judges are not available to hear the RPO leave application, the same shall be dealt with by another judge designated by the Chief Judge of the High Court. 

5. That all RPO leave applications and all matters ancillary thereto shall be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs.

6. That if, contrary to the RPO, Lisa Yuen seeks to issue fresh proceedings covered or which may be covered by the RPO without prior leave of the designated judge, and if such fact should come to the notice of the Registry of the High Court, District Court, Small Claims Tribunal, Labour Tribunal or to the notice of any master, judge or judicial officer, the Registry, master or judge or judicial in question shall forthwith refer those proceedings to the designated judge for a decision as to whether the proceedings should be permitted to continue or be dismissed.

7. That if, contrary to the RPO, Lisa Yuen purports to serve on one or more defendants any fresh proceedings (whether or not the purported fresh proceedings are brought to the notice of the designated or some other judge, master or judicial) without at the same time serving on the defendant(s) a copy of an order giving leave to proceed or a direction that leave is not required, such defendant(s) should be entitled to make no response pending notification of the court's decision in relation to those proceedings; and, insofar as necessary, time for acknowledging service or for otherwise responding to such fresh proceedings shall be deemed extended accordingly.

8. That Lisa Yuen is prohibited from making any further or pursuing any issued application to the court tribunal (including any application to  set down for  trial) in the proceedings set out in Schedule 2, whether before or after judgment, without the leave of the designated judge being first obtained ("the RAO").

9. That all applications for leave to issue or pursue an application in the proceedings set out in Schedule 2 ("RAO leave applications") must be made in writing to the designated judge (and not to any other judge or to a master) without giving notice of the application to the intended respondent.

10. That in the event that the designated judges are not available to deal with the RAO leave application, the same shall be dealt with by another judge designated by the Chief Judge of the High Court.

11. That all RAO leave applications and all matters ancillary thereto shall be dealt with on the papers and without any oral hearing unless the designated judge otherwise directs.

12. That where leave to make the substantive application is granted, service of the order giving leave must accompany service of the substantive application in question, which substantive application shall be heard by a  judge and not a master unless the designated judge otherwise directs. 

13. That if, contrary to the RAO, Lisa Yuen seeks to issue or pursue an application in the proceedings set out in Schedule 2 without prior leave of the designated judge, the purported application shall forthwith be referred by the Registry to a master for such application to be dismissed in accordance with the RAO. 

14. That if, contrary to the RAO, Lisa Yuen purports to serve  any application in the proceedings set out in Schedule 2 on any respondent  without at the same time serving on  that respondent a copy of a sealed order giving leave to issue or pursue such application, such application shall automatically stand dismissed, so that neither  that respondent nor the court would be required to take any steps in response.

15. That the proceedings and applications referred to in the RPO and the RAO includes proceedings and applications of whatever nature in the Court of First Instance, the District Court, the Small Claims Tribunal, the Labour Tribunal.

16. That the RAO shall not prohibit Lisa Yuen from responding to applications taken out by the other parties in the proceedings set out in Schedule 2.

17. That the RAO and RPO shall not prohibit Lisa Yuen from exercising her right of appeal to the Court of Appeal.

18. That notification of this Order shall be given to the respective Registrars of the High Court, District Court, Small Claims Tribunal, Labour Tribunal, who shall take note of the terms hereof and shall take all necessary steps to ensure due compliance with this Order.

19. Lisa Yuen shall pay the costs of Heath regarding the RPO and RAO application.

20. The following summonses taken out by Lisa Yuen are dismissed,

          (a) A summons dated 30 November 2005 in HCA 509 of 2004;

          (b) A summons dated 19 December 2005 in HCA 509 of 2004. 

(a)   Lisa Yuen shall pay the costs of  Heath in the application for RPO and RAO;

(b)   Lisa Yuen shall pay the costs of Lai Yu Fai as regards the following summonses in HCA 509 of 2004,

(i) summons of 30 November 2005;

(ii) summons of 19 December 2005.

(c) Save as provided for in (b) above, the costs as between Lisa Yuen and Lai Yu Fai shall be reserved and to be dealt with at the conclusion of the striking out    applications.

22.  Except her written application to this court for leave pursuant to this order, Lisa Yuen’s letters or faxes to this court will not be read and there will not be any response thereto from this court.

Dated the 28^th day of December 2005

Schedule 1

Part A

The Relevant Proceedings

1. DCCJ 5441 of 2003 (Lisa Yuen -v- Heath Co. Ltd. ("Heath"); Desa Int'l Inc and HIG Capital)

2. HCMP 2038 of 2004 (on an intended appeal from DCCJ 5441 of 2003)

3. HCSD 39 of 2004 (application to set aside statutory demand)

4. Consolidated Action No. DCCJ 7079 of 2003 (comprising of DCCJ 7079 of 2003; DCCJ 7080 of 2003; DCCJ 7081 of 2003; DCCJ 7184 of 2003; DCCJ 7185 of 2003; DCCJ 7257 of 2003; DCCJ 7258 of 2003; and DCCJ 2702 of 2004) (Lisa Yuen -v- Chong King Po, Sally ("Sally Chong"); Ken Wong; Jacky Ho; Ken Hui; Chiu Wing Wah Wilson; Chan Kam Wah, Kent; Ku Lai Chiu Cindy; Chan Kwai Hing Channy; Ho Siu Kwan Mandy; Leung Man Yee Sofia; Chan Keung; Leung Yik Hong, Fred; Lam Chun Wai, Anno; Tse Mei Po, Mable; Choi Yin Ki, Ada; Ho May Har, Sannie; Lui Chung Tak; Tsui Yiu Ming, Allen; Kui Suk Yin, Kimmy)

5. HCMP 2791 of 2004 (on an intended appeal on costs from DCCJ 7079 of 2003; DCCJ 7080 of 2003; DCCJ 7081 of 2003; DCCJ 7184 of 2003; DCCJ 7185 of 2003; DCCJ 7257 of 2003; DCCJ 7258 of 2003) (Lisa Yuen -v- 16 staff members of Heath)^a

6. DCCJ 378 of 2005 (Lisa Yuen -v- Leung Yik Hong Fred; HIG-DHP Barbados Ltd.; HIG Capital and Desa Int'l LLC)

7. DCCJ 442 of 2005 (Lisa Yuen -v- Chan Chi Tak Ringo; Chan Hon Hung; Chau Chi Sang; Chik Kin Wing; Lam Kai Kuong; Li Chi Keung Dennis; Lui Chiu Man; Mok Shut Ying, Jenny; Ngai Ping Sun; Yeung Chung Fat; HIG-DHP Barbados Ltd.; HIG Capital and Desa Int'l LLC) 

8. HCMP 1824 of 2005 (on an intended appeal from Consolidated Action No. DCCJ 7079 of 2003; DCCJ 378 of 2005 and DCCJ 442 of 2005)

9. HCA 509 of 2004 (Lisa Yuen -v- Heath (協峰電子有限公司) and Lai Yu Fai (黎汝輝))

10. CACV 389 of 2004 (on appeal from HCA 509 of 2004)

11. HCA 1108 of 2004 (Lisa Yuen -v- Sally Chong (莊瓊寶))

12. HCA 1258 of 2004 (Lisa Yuen -v- John Steven Marcum; James Richard Wiese; Stephen Lance Clanton; Edward G. Patrick and  Kathy Ford)

13. DCEO 18 of 2004 (Lisa Yuen -v- Heath)

14. HCMP 1743 of 2005 (on an intended appeal from DCEO 18 of 2004)

15. HCA 96 of 2005 (Lisa Yuen -v- Heath (協峰電子有限公司))

16. HCMP 1087 of 2005 (The Secretary for Justice -v- Lisa Yuen)

17. DCEO 3 of 2005 (Lisa Yuen -v- Lai)

18. DCCJ 3524 of 2005 (Lisa Yuen -v- Ho Yiu Kuen, Jacky; Chan Kam Wah, Kent; Heath; Lai; Desa International Inc.; Desa International LLC; HIG Capital; HIG-DHP Barbados Ltd.)

19. Small Claims Tribunal Claim No.SCTC073254 of 2005 (Lisa Yuen -v- Kenny Lau)

20. Small Claims Tribunal Claim No.SCTC074306 of 2005 (Lisa Yuen -v- Lai)

Part B

List of Subject Matters falling within the scope of the RPO

(i) all telephone calls made by Sally Chong to Lisa Yuen's former employers in  2003, prior to the termination of Lisa Yuen's employment with Heath Company Ltd on 6th March 2003 ; 

(ii) Sally Chong's alleged use, collection, access to and/or misappropriation of Lisa Yuen's personal data and/or Lisa Yuen's CV during Lisa Yuen's employment with Heath;

(iii) Heath's refusal to provide Lisa Yuen with the names of the ex-employers contacted by Sally Chong in or around February 2003;

(iv) the Settlement Agreement, embracing all facts and matters covered by the terms of the Settlement, concluded between Heath and Lisa Yuen in May 2003 ("the Settlement");

(v) the alleged conspiracies or collusion between Lai and Sally Chong in bringing about the termination of Lisa Yuen's employment with Heath;

(vi) all letters, documents, statements, materials and information supplied by Heath and Lai to the Equal Opportunities Commission ("the EOC") in connection with Lisa Yuen's complaint against Heath and Lai under the Sex Discrimination Ordinance plus all matters leading to the provision of such letters, documents, statements, materials and information;

(vii) the Witness Statements of Sally Chong, Ken Wong, Jacky Ho, Ken Hui; Chiu Wing Wah, Wilson, Chan Kam Wah, Kent, Ku Lai Chiu, Cindy, Chan Kwai Hing, Channy, Ho Siu Kwan, Mandy, Leung Man Yee, Sofia, Chan Keung, Leung Yik Hong, Fred, Lam Chun Wai, Anno, Tse Mei Po, Mable, Choi Yin Ki, Ada, Ho May Har, Sannie, Lui Chung Tak, Tsui Yiu Ming, Allen, Kui Suk Yin, Kimmy plus all matters leading to the drafting or otherwise preparation of any one of these Witness Statements;

(viii) the staff complaint letter signed by 29 staff members of Heath dated 21st February 2003 ("the Staff Complaint Letter"), plus all matters leading to the drafting or preparation of the Staff Complaint Letter;

(ix) the mass resignation letter of 27 staff members of Heath, dated 5th March 2003 plus all matters leading to the staff members' mass resignation or the drafting or preparation of the resignation letter;

(x) Heath's termination of Lisa Yuen's employment on 6th March 2003, embracing all facts, matters, internal discussions, investigations, interviews with current and former staff members by Heath's management leading to or that resulted in the decision to terminate Lisa Yuen's employment with Heath and any alleged conspiracy between Lai and other staff members in connection with such termination of employment;

(xi) Leung Yik Hong, Fred's ("Fred Leung") email to the management of Heath of 3rd March 2003;

(xii) any instructions given to Fred Leung by Lai leading to the writing of the email of 3rd March 2003;

(xiii) Lisa Yuen allegedly being addressed or referred to as an Ape, whilst the other staff members being referred to as monkeys and Lisa Yuen’s threatened claims for racial discrimination in connection with these alleged comments;

(xiv) all unlawful acts under the Sex Discrimination Ordinance allegedly committed by Heath or by any of its current/former staff members including:-

- Lai's alleged comments to Lisa Yuen that Danny To, Lisa Yuen's predecessor, could tolerate the mistakes and inefficiencies of his subordinate better than Lisa Yuen, who is a female;

- Lai's alleged suggestion that Danny To, at his age and was unmarried, could get on well with staff and found Sally Chong suitable to work for him;

- Lai allegedly accusing Lisa Yuen of nitpicking on her subordinates' mistakes and that Lisa Yuen only dwelt on minor matters;

- Lai's alleged dislike of Lisa Yuen and  allegedly addressing her as a "師奶" in front of others ;

- Lai’s alleged statement that he regretted hiring a woman like Lisa Yuen for the job of a financial manager;

- Lai’s alleged statement that he regretted having chosen Lisa Yuen in preference to the other male candidates during the recruitment exercise;

- Lai’s alleged comments that Danny To, being a male department head, was generous to all staff and fought for the benefits of his colleagues whilst Lisa Yuen, though a female, was neglecting the staff welfare and benefits;

- Lai’s alleged sharing dirty jokes with Lisa Yuen, including the alleged romance affairs of Heath’s staff members or Lai;

- Lai’s alleged sharing sexual games done by Heath’s staff members during the trip to Taiwan;

- Chan Kam Wah, Kent’s alleged playing a dirty game during annual dinner;

- Any instructions given by Lai in connection with the above;

- Heath’s current/former staff members, alone or together with other persons, allegedly engaged in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for Lisa Yuen.

(xv) Sally Chong's alleged personal attacks, misconduct and wrongful acts against Lisa Yuen, embracing her alleged bad-mouthing Lisa Yuen; her alleged putting up of a Chinese Poster that Lisa Yuen should not take any incoming letters from Sally Chong's letter tray, her alleged defamatory remarks to other staff members of Heath against Lisa Yuen, and her alleged inciting other staff members of Heath to draft the Staff Complaint Letter;

(xvi) Heath's alleged breaches of the terms of the Settlement Agreement, embracing its alleged instructions to staff members of Heath to give written statements to the EOC and its solicitors' alleged phone call to Lisa Yuen's employer in Pun Yu on or around 17th September 2004;

(xvii) all claims or allegations against Kenny Lau relating to or touching upon Kenny Lau's involvement in giving instructions for the conduct of any of the  Relevant Proceedings; 

(xviii) all claims or allegations against Heath, its holding or associated companies, their current and former employees, officers and directors for their participation or instructions given  in relation to any of the Relevant Proceedings or as a result of each of its/her/his/their involvement or participation in any of the Relevant Proceedings; 

(xix)   all claims or allegations against judges and other officers of the Court or Tribunals, lawyers (including solicitors, trainee solicitors, legal executives, legal clerks and counsel, other than lawyers acting for Lisa Yuen), Johnson Stokes & Master (including all employees, partners, consultants of Johnson Stokes & Master), Messrs. Kennedys (including all employees, partners and consultants of Messrs. Kennedys) the former and current Secretaries for Justice and officers and clerks of the Department of Justice for or in respect of their participation in or conduct of the Relevant Proceedings, or as a result of their involvement in any of the Relevant Proceedings. For the avoidance of doubt, the said claims and allegations shall include any form of allegations or demands arising from the fact that the said persons or any of them were involved in any of the Relevant Proceedings in whatever capacity, such as:-

(a) Lisa Yuen's threatened claims against Johnson Stokes & Master and/or their employees in relation to her alleged request to them to deliver certain banana coupon(s) to Mr. Leung Kwok Hung and Mr. Woo. 

(b) claim(s) or proceedings against Johnson Stokes & Master, the current and former Secretaries for Justice/the Department of Justice, Kennedys and/or against any of their current and/or former employees, officers, partners, consultants, counsel involving or relating to or touching upon or leading to any demand (including but not limited to demands involving or relating to or touching upon or leading to any form of coupon or monetary claim) or debit note (including her debit note to Johnson Stokes & Master for HK$29 million) issued or to be issued by Lisa Yuen

(c) claim(s) or proceedings against Johnson Stokes & Master and/or the current and former Secretaries for Justice and/or the Department of Justice, Kennedys and/or against any of their respective current and/or former employees, officers, partners, consultants, counsel involving or relating to or touching upon or leading to or arising out of any claims or counterclaims by Lisa Yuen for losses, damages, donation, injury (including any psychiatric or psychological injury) or injury to feelings howsoever arising

 (d) claims or proceedings involving or relating to or touching upon or leading to all debit notes (howsoever arising) issued or to be issued by Lisa Yuen to any party identified in this Order.

(xx) all claims or allegations against witnesses and deponents for the evidence given, or to be given, in the Relevant Proceedings.

 

Schedule 2

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 96 OF 2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 509 OF 2004

O R D E R

Filed on 28^th day of December 2005