YUNG MEI CHUN v. CHAN SING CHUEN

HCMP 1178/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1178 OF 2009

(ON AN INTENDED APPEAL FROM DCCJ NO. 4126 OF 2007)

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BETWEEN

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DECISION

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Hon Tang Ag CJHC (giving the decision of the Court):

1.  We begin with a short summary. Ms Yung was the defendant in HCA 7213/2000. Mr Chan was the plaintiff. The claim was commenced by writ on 19 July 2000. In this claim, Mr Chan claimed damages and for an account. It was his case that he had made payments to Ms Yung to enable her to trade in Hang Seng Index futures contracts (“HSI Contracts”) on Mr Chan’s behalf.

2.  HCA 7213/2000 was transferred to the District Court and became DCCJ 15756/2000.  After a ten-day trial, by a judgment dated 31 December 2002, Deputy District Judge W. Chan ordered Ms Yung to pay Mr Chan the sum of HK$135,000 together with interests and cost.  Both Ms Chan and Mr Yung were then legally represented.

3.  Ms Yung was dissatisfied with the judgment and applied for leave to appeal.  The application was HCMP 4776/2003.  Judgment was given by Cheung and Yuen JJA on 8 June 2005.  Ms Yung had earlier been refused leave to appeal by Deputy District Judge W. Chan as well as by a single judge of the Court of Appeal.  Ms Yung acted in person.  As Yuen JA has pointed out in her judgment of 8 June 2005 (with the concurrence of Cheung JA), one of the grounds relied on in the application for leave to appeal was that Mr Chan had discussed his case with his solicitors whilst giving evidence.  Yuen JA pointed out in her judgment that there was no realistic prospect of success on this and other grounds of appeal.  Leave to appeal was refused.

4.  We also mention that the hearing of HCMP 4776/2003 was originally fixed for hearing on 26 March 2004.  That was adjourned on Ms Yung’s application made, inter alia, on the ground that she was busily engaged in various other legal actions. The hearing was then re-fixed to take place on 7 July 2004.  Just prior to the hearing on 7 July 2004, Ms Yung made another application for an adjournment on much the same grounds, which was refused.

5.  On 17 September 2007, Ms Yung paid Mr Chan the judgment debt of HK$135,000 as well as certain taxed costs totaling $185,779.99 in DCCJ 15756/2000 (see para. 5 of her claim in DCCJ 4126/2007).  The taxation of Mr Chan’s other costs in DCCJ 15756/2000 is still in progress.

6.  However, on 17 September 2007, Ms Yung commenced DCCJ 4126/2007 against Mr Chan alleging that on 25 June 2003, she had settled with Mr Chan on the basis that Mr Chan would not pursue the judgment in DCCJ 15756/2000 against her in return for Ms Yung not pursuing her claim or complaint that Mr Chan had discussed his case with his solicitor whilst giving evidence.  We do not believe Ms Yung had ever offered a reasonable explanation why subsequent to the alleged settlement on 25 June 2003, she had nevertheless paid the judgment debt as well as part of the costs in DCCJ 15756/2000.

7.  We would mention that earlier there was an appeal (CACV 69/2003) by Ms Yung against certain orders by Deputy District Judge W. Chan which was dismissed on 11 July 2003 (Cheung and Yuen JJA).  One of the orders sought by Ms Yung was an order that the Judgment of Deputy District Judge W. Chan of 31 December 2002 be removed from the Government’s website and other related websites. 

8.  Ms Yung’s claim against Mr Chan arising out of the alleged settlement on 25 June 2003, namely, DCCJ 4126/2007 was eventually set down for hearing to commence on 9 June 2009 with a total of four days reserved before District Judge Lok. 

9.  Shortly before 9 June 2009, Ms Yung sought an adjournment on the basis that she was unwell.  In Judge Lok’s judgment of 11 June 2009 he had explained why he had refused an adjournment.  We will not repeat Judge Lok’s reasons.  It is important for the administration of justice that the court should have control of its proceedings, so that, for example, it would not grant an adjournment unless there are good reasons to do so.  If adjournments are granted for the asking, valuable court time would be lost resulting in delay to other litigants.  On the same day, District Judge Lok also dismissed Ms Yung’s claim in DCCJ 4126/2007.

10.  That led to an application by Ms Yung to set aside District Judge Lok’s orders of 11 June 2009 which was heard on 3 September 2009 by Judge Lok.  By judgment dated 29 October 2009, Judge Lok dismissed both applications. 

11.  In the meantime Ms Yung applied to the Court of Appeal for leave to appeal in HCMP 1178/2009.  HCMP 1178/2009 was dismissed on paper by judgment dated 4 September 2009.  Tang VP and Yeung JA also made an order that Ms Yung should not apply to the court for a hearing.  By that judgment, the Court refused Ms Yung’s application for leave to appeal from the orders of Judge Lok dated 11 June 2009.

12.  On 10 February 2010, Judge Lok refused an application by Ms Yung for leave to appeal from his order presumably of 29 October 2009.

13.  On 14 September 2009 in response to Ms Yung’s application for an oral hearing under O.59 r. 2C Yeung JA made the following order:

“The application for leave to appeal had been dismissed by two judges of appeal and an order under O. 59 r. 2A(8) was made. The plaintiff is not entitled to ask for an oral hearing in the fresh application under r. 2C. The application is dismissed.”

14.  By summons dated 22 September 2009, Ms Yung applied, inter alia, to set aside:

1)  the Judgment of HCMP 1178/2009, dated 4 September 2009, whereby Ms Yung’s application for leave to appeal against the orders of District Judge Lok dated 11 June 2009 was dismissed;

2)  the order of HCMP 1178/2009 dated 14 September 2009, by which Yeung JA had refused her request for an oral hearing.

15.  The summons of 22 September 2009 was dismissed by the judgment of 5 October 2009 (Tang VP and Yeung JA).  In that judgment, the court also said that it appeared from the events described in the judgment of 4 September 2009 that the plaintiff:

“… has abused, and is likely to continue abusing the court’s process by persistently making unwarranted applications to the court.”

16.  A provisional order was then made prohibiting Ms Yung from making any further application to the court in HCMP 1178/2009, save with the leave of Tang VP (or another judge designated by the Chief Judge, High Court).  The plaintiff was given 14 days to make a representation to the court if she wished to do so.  On 19 October 2009, Ms Yung made representations to the court.  By judgment dated 2 November 2009, Tang VP and Yeung JA made a restricted application order (“RAO”) in HCMP 1178/2009, prohibiting Ms Yung from making any further application to the court in HCMP 1178/2009, save with the leave of Tang VP (or another judge designated by the Chief Judge, High Court). 

17.  On 2 October 2009, the plaintiff purported to file a notice of motion dated 2 October 2009 for leave to appeal to the Court of Final Appeal from the judgment of this Court given on 4 September 2009.  Since our decision of 4 September 2009 refusing leave to appeal was final, (Section 14AB of the High Court Ordinance, Cap. 4.) we dismissed the motion of 2 October 2009 accordingly. 

18.  Ms Yung then issued another notice of motion dated 2 November 2009 for leave to appeal to the Court of Final Appeal:

“… from the judgment of Court of Appeal in HCMP no. 1178 of 2009 (1178/2009) given on 5 October 2009 …”

19.  We dismissed that motion on 31 March 2010. 

20.  By notice of motion dated 30 November 2009, Ms Yung applied for leave to appeal to the Court of Final Appeal from the judgment of the Court of Appeal in HCMP 1178/2009 given on 2 November 2009.  That was fixed for hearing on 2 July 2010 before Tang VP, Yeung JA and Yuen JA.

21.  By various letters addressed to the registrar Ms Yung asked that Tang VP, Yeung JA and Yuen JA be recused from the hearing because she had made “numerous complaints against their misconducts with the Chief Justice”.  She was informed by letter of 31 May 2010, that if she wished to make any application including an application for recusal of judges, the application should be made at the hearing.

22.  At the hearing, Ms Yung applied, inter alia, to us, to recuse ourselves from the hearing of her application for leave to appeal to the Court of Final Appeal.  Basically, Ms Yung was dissatisfied with the various judgments in which we had participated, some of which have been summarized above.  The test for apparent bias can be found in the decision of the Court of Final Appeal in Deacons v White and Case (2003) 6 HKCFAR 322 relied on by Ms Yung.  On the basis of that judgment, as the brief summary of the events shows, this is not a case where any of us should recuse ourselves.  No fair minded and informed person would conclude that there is a real possibility, or a real danger, that this tribunal is biased.  The fact that a complaint is made of a judge is not by itself a sufficient reason for the judge to recuse himself, otherwise a litigant can effectively decide on the composition of the court.  In this case, we are satisfied that there is no apparent bias and we should not recuse ourselves.

23.  This is a simple case and we have lost count of the number of times that Ms Yung has applied either to this Court or to the Court of First Instance or to the District Court for reliefs.  The RAO made on 2 November 2009 restricted Ms Yung’s ability to make applications in HCMP 1178/2009.  Unfortunately, the RAO would not restrict Ms Yung from issuing fresh proceedings.  Thus, Ms Yung was able to commence new proceedings on 24 February 2010, namely, HCMP 352/2010.

24.  In HCMP 352/2010 Ms Yung is the plaintiff and Mr Chan is the defendant. Ms Yung claimed:

“1. the Plaintiff do have leave to appeal against the Orders of H. H. Judge Lok given on the 10^th day of February of 2010.

2. The Grounds of the proposed appeal will be as follows:-

3. Please see enclosed the affirmation of YUNG Mei Chun of 24th February 2010. And the Plaintiff specifically request an oral hearing for this appeal. The Plaintiff also request these summons to be heard by Judges other than Hon Tang VP, Yeung JA, Cheung JA and Yuen JA as currently the Plaintiff is appealing their decisions.

4. And that the costs of this application be cost of the appeal.”

25.  It is obvious that HCMP 352/2010 is an attempt to circumvent the RAO and is a clear abuse of process.

26.  Already, Ms Yung has made two appeals against a master in HCMP 352/2010. They were heard by Yam J on 17 June 2010.  In a carefully prepared judgment Yam J explained that Ms Yung’s appeals, which he dismissed, were untenable.  That those appeals and the proceedings in HCMP 352/2010 are frivolous would be obvious to anyone who will take the trouble to read Yam J’s judgment.

27.  In para. 34 of Yam J’s judgment, he said:

“34. I understand there is a hearing before the Court of Appeal on 2 July 2010 under HCMP 1178/2009. The Court of Appeal may consider whether a Restrictive Proceedings Order (‘RPO’) should be granted against Ms Yung in addition to the RAO previously granted against her by the Court of Appeal as aforesaid. This would prevent Ms Yung from vexing Mr Chan any further by abusing the court process.”

28.  On 2 July 2010, Ms Yung’s notice of motion dated 30 November 2009 came for a hearing before us.  By this motion, Ms Yung asked that she be given:

“… leave to appeal to the Court of Final Appeal from the judgment of the Court of Appeal in HCMP no. 1178 of 2009 given on 2 November 2009 …”

This application relates to the RAO made by us on 2 November 2009.

29.  It will be clear from the brief narration of the background above and the reasons given when the RAO was made on 2 November 2009 (which will not be repeated here) that the RAO was rightly made.  It is also clear to us that leave to appeal to the Court of Final Appeal must be refused.  There is no proper basis for leave to be given.  Ms Yung referred to Ng Yat Chi v. Max Share Ltd and Anor (2005) 8 HKCFAR 1 and submitted that an RAO would not be made without an oral hearing.  No doubt in suitable cases an oral hearing will be held.  But this is not such a case.  With the advent of the Civil Justice Reform, in suitable cases, the court will be more ready to make a RAO or an RPO without an oral hearing although it would always give an opportunity for representations to be made. 

30.  On 2 July 2010, we told Ms Yung that we were minded to make an RPO against her, and we gave her 28 days to make written representations. 

31.  The written submission dated 30 July 2010 was submitted under protest. The written submissions contain nothing which deserves notice.  Ms Yung accused us of conflict, unfairness and injustice.  She referred to the judgment of Yam J of 29 June 2010 as an obstruction of justice, complaining that he had influenced this Court.   She accused Yam J and Tang VP of collusion in proposing to make a restrictive proceedings order (“RPO”) against her.

32.  Events have proved that the RAO was not sufficient.  It has not stopped her from making unwarranted applications.  It is clear that Ms Yung wishes to cause as much vexation to Mr Chan as possible.  She could not accept the result of the decision of Deputy District Judge W. Chan, who held against her in DCCJ 15756/2000, or the decision of District Judge Lok given on 11 June 2009, refusing an adjournment and dismissing her claim in DCCJ 4126/2007.  Mr Chan must be protected by the court.  Indeed Ms Yung is taking up time of the court which could be spent in resolving genuine disputes.

33.  For these reasons, we believe we should made a RPO, namely a restrictive proceedings order, prohibiting Ms Yung from commencing any further new legal proceedings in respect of the same claim or subject-matter as in DCCJ 15756/2000 or DCCJ 4126/2007, save with the leave of Yeung JA (or another judge designated by the Chief Judge, High Court).

34.  We award Mr Chan $200 costs.