TSUI KOON WAH v. CHIEF JUSTICE AND ANOTHER

HCAL 75/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 75 OF 2007

____________

____________

______________

D E C I S I O N

______________

1.  The applicant applied for leave to apply for judicial review, and requested an oral hearing.

2.  The notice of application stated that the respondents failed to assign a competent judge other than Chung J to handle the trial and related matters in HCA 890/2003, or make any other arrangement (whether judicially or administratively), in contravention of their rights and obligation under s. 32 of the High Court Ordinance (Cap. 4), Art. 10 of the Hong Kong Bill of Rights and Art. 14.1 of the International Covenant on Civil and Political Rights (“ICCPR”).

3.  The relief sought is, inter alia, an order to assign a competent judge other than Chung J to handle the trial and related matters in HCA 890/2003, on the ground that Chung J is incompetent, dishonest and/or mentally unsound.

Recusal application

4.  The applicant has taken out a summons for me to recuse myself on the ground of apparent bias, by reason only that the respondents are my immediate and ultimate superiors.

5.  Under Article 85 of the Basic Law:

“The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”

6.  I have also taken the judicial oath that I shall conscientiously, dutifully in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, interest or deceit.

7.  There is no interference from either the Chief Justice or the Chief Judge of the High Court, and I bear no fear or favours towards them in hearing this case.  Any reasonable bystander would have confidence in any judge or judicial officer in Hong Kong in adhering to this fundamental principle.

8.  Hence, the application for my recusal is refused.

Background

9.  The applicant was previously employed as a Social Security Assistant under contract at the Mongkok Field Unit of the Social Welfare Department.  In January 2003, he was summarily dismissed from employment. 

10.  He issued proceedings for wrongful dismissal against the Director of Social Welfare in HCA 2938/2003.  He also issued proceedings for defamation against four of his colleagues and superiors in HCA 890/2003.

11.  The defamation case was originally set down for trial before Chung J and a jury to commence on 3 January 2005.  On 25 October 2004, the applicant applied to amend his pleadings.  On 30 November 2004, Chung J adjourned the pre-trial review sine die with liberty to restore, and vacated the trial dates fixed because he considered the action was not ready for trial.

12.  Since then, there were various hearings before Chung J and the Court of Appeal on the state of the pleadings and the preparation for trial, and also application for the recusal of Chung J.

13.  On 19 June 2006, the applicant laid an information before the Principal Magistrate of the Kowloon City Magistrate’s Court for a private prosecution against Chung J for perverting the course of justice.  It arose out of Chung J’s decision to strike out parts of the Re-Re-Amended Reply.  After Chung J’s decision to strike out was handed down on 7 April 2006, solicitors for the defendants wrote to the court pointed out that there were additional offending paragraphs that ought to be struck out in the same vein.  On 9 May 2006, Chung J issued a Corrigendum to his Decision dated 7 April 2006 adding the additional offending paragraphs.  A draft order was later approved.  The applicant stated in the information before the magistrate that the sealed order contained false information, viz. the additional offending paragraphs.  The Principal Magistrate concluded that the order was not a false instrument, and no offence of forgery was disclosed.  He refused to issue the summons on 21 and 28 June 2006.

14.  On 21 July 2006, the applicant applied for leave for judicial review of the Principal Magistrate’s decision (HCAL 81/2006).  The leave application was heard by Chu J, and was refused in a decision handed down on 12 September 2006.

15.  On 18 July 2006, the applicant applied to Chung J to recuse himself on the ground of discrimination, bias and participating in the making of a forged order. 

16.  On 22 July 2006, the applicant made a second application before Chung J to recuse from dealing with the action.  The application was also dismissed in a decision handed down on 10 August 2006.

17.  On 29 July 2006, the applicant took out yet another summons that a summons taken out by the defendants before Chung J be heard by another judge.  The application was also refused by Chung J.

18.  The applicant took Chung J’s second decision in refusing to recuse himself to the Court of Appeal (CACV 278/2006).  The appeal was dismissed on 13 October 2006.

19.  On 23 October 2006, the applicant took out a summons asking Chung J to delete the sentence “An appeal to the Court of Appeal by the plaintiff also turned out to be unsuccessful.” from the two recusal decisions of Chung J handed down on 8 and 10 August 2006, and for dates to be fixed for the trial of the defamation case.

20.  To put in context, this appeal related to a decision of Chung J given on 29 January 2005.  In a judgment by Rogers VP dated 18 July 2005, certain amendments to the Amended Reply were allowed.  However, Rogers VP said at para. 13:

“In view of the fact that the plaintiff has not been successful on this appeal on many of the amendments and those amendments that have been permitted were almost all different amendments from those sought below, I consider that the costs of this appeal should be defendants’ costs in the action.”

21.  In the decision handed down by Chung J on 27 November 2006, Chung J said that the sentence impugned was not misleading in that the appeal was unsuccessful when looked in the round.  Chung J also refused to fix the dates for trial before the trial bundles were properly prepared.

22.  After the Decision dated 27 November 2006, the applicant had written to Chung J on 27 November and 1 December 2006 to point out certain “untruths” in the Decision, and to request the audio transcript.  The request was refused by Chung J.

23.  On 30 March and 12 April 2007, the applicant laid information before a magistrate of the Kowloon City Magistrate’s Court against Chung J for the offences of forgery and perverting the course of justice based on “fabrication” and “lies”.  The magistrate refused to issue the summons.

24.  On 11 May 2007, the applicant applied for leave to apply for judicial review against the decisions of the magistrate.  In a Decision handed down on 21 May 2007, Reyes J refused leave.

25.  On 30 May 2007, the applicant wrote to the Chief Judge of the High Court, asking for leave to issue an enclosed draft summons returnable before the Chief Judge, for an order that:

“Hon. Chung J be disqualified or removed from hearing and/or handling this case for being incompetent or having misconducted himself, namely, lying in the decision handed down on 27  November 2006.”

26.  On 5 June 2007, the Clerk to the Chief Judge wrote to the applicant, stating that any application for Chung J to recuse himself should be made before Chung J, and if he were dissatisfied with any judicial decision, he might lodge an appeal following proper court procedures.

27.  On 12 June 2007, the applicant wrote again to the Chief Judge requesting the assignment of another judge, stating Chung J was incompetent and unable to recollect what happened during the hearing of 14 November 2007 (sic.) and other pre-trial reviews presided by Chung J.

28.  On 18 June 2007, the applicant wrote to both the Chief Justice and the Chief Judge of the High Court, stating Chung J to be incompetent and misconducting himself, requesting the arrangement of another judge.  The applicant stated that he presumed a denial of the request in the absence of reply within 7 days.

Grounds upon relief sought

29.  The applicant said that ever since his partial success in the appeal against Chung J’s decision of 29 January 2005, Chung J had been behaving strangely.  There was a long delay in handing down the decision after the hearing on 24 October 2005.  He made a complaint to the Chief Justice on 31 March 2006, and the decision was handed down on 7  April 2006.

30.  Then in May 2006, Chung J manufactured the order which did not accord with the facts.  Now, Chung J is unable to recollect facts in order to make a decision. 

31.  The applicant alleged that Chung J made untrue records in his Decision handed down on 27 November 2006.  The impugned paragraphs are:

(1)     Para. 17

“I pause to note that out of those witness statements, 3 came from the plaintiff himself (totalling about 100 pages).  There have been substantial amendments to the parties’ pleadings.  In view of this, earlier I indicated to the parties it would be more convenient for trial purposes for them to file and serve witness statements which in effect ‘consolidate’ the contents of all witness statements previously filed and served.  The plaintiff obviously does not share that view.”

The applicant said Chung J had never indicated that to him.

(2)     Para. 21

“Further, when being asked if the contemporaneous documents in his proposed trial bundle were the same as those set out in the defendants’ proposed indices, he confirmed they were (defence solicitor however disagreed with this).”

The applicant said the defence solicitor never said so.

(3)     Para. 22

“In these circumstances, I indicated to the parties at the hearing of this application my preference for the trial bundles proposed in the said letter of the defence.”

The applicant said there was no such circumstances, and Chung J said the bundles lodged by him was more suitable.  The applicant further explained to me that he regarded the bundle prepared by him is to be used by the judge himself.

(4)     Para. 26

“…, the plaintiff has earlier issued and served over 20 subpoenas.  They have been set aside on 30 November 2004.  It is unknown if he still intends to issue these subpoenas, and if so, if it is appropriate to do so.”

In fact, the applicant had only applied for 17 subpoenas, not over 20.

32.  The applicant said that by reason of the statements in the Decision of 27 November 2006, Chung J was either lying or mentally unsound.  He said Chung J fabricated untrue records which did not reflect what had transpired, it could only have occurred because Chung J was labouring under hallucination, auditory delusion or even paranoia.  Hence, he was unable to discharge judicial function and is incompetent.  The applicant submitted that if Chung J were unable to recollect facts at the pre-trial reviews, he would not be able to recollect evidence at the trial proper.  The applicant said he would like to produce medical evidence and the recording of the hearings at the judicial review.

33.  The applicant pointed out that under Art. 10 of the Hong Kong Bill of Rights and Art. 14.1 of the ICCPR:

“… everyone shall be entitled to a fair and public hearing by a competent … tribunal.”

He said he was entitled to be tried by a competent judge.

34.  The applicant referred to part of s. 32 of the High Court Ordinance which states:

“… every proceeding in the Court of First Instance and all business arising therefrom shall be heard and determined by a judge or the Court of First Instance sitting alone.”

He said the Chief Judge had failed in his constitutional duty under s. 32 in failing to hear his summons and to assign another judge in lieu of Chung J.  And the Chief Justice and the Chief Judge also failed in the constitutional duties to deal with his letter of 18 June 2006.

35.  The applicant submitted that under Article 80 of the Basic Law, the Chief Justice is the head of the Judiciary.  Hence, he is charged with the constitutional duty to carry out Article 10 of the Bill of Rights in assigning a competent tribunal.

Discussion

36.  Apart from the ground of “mentally unsound”, the other grounds levied against Chung J, such as the “forged order” and “lying” in the decision of 27 November 2006, have been raised and dealt with by other courts before.

37.  On the “forged order”, Chu J has already ruled that the basis of the alleged forgery was flawed.  I respectfully agree.  The draft order was preceded by Corrigendum after written submissions from both parties.  The fact that the additional offending paragraphs did not appear in the original Decision did not mean that Chung J did not consider them as amounting to abuse of court process, because they came under the same category as those paragraphs of the pleadings ordered to be struck out.

38.  As to the “lying” point, Reyes J dealt with the so called “lies” in Chung J’s decision dated 27 November 2006, as they are now put before me, and His Lordship said:

“21.   Mr Tsui assumes that, merely because Chung J made what Mr Tsui believed to be wrong assertions in coming to a conclusion, Chung J must have been deliberately lying and attempted to pervert the course of justice.  

22.    A magistrate can reasonably take the view that the mere making of wrong statements in a judgment, even coupled with the history of Mr Tsui’s action before Chung J would not constitute sufficient material or evidence to support a charge of lying to pervert the course of justice.”

39.  Of course, I am not looking at the sufficiency of evidence to support the criminal charge, but recusal of a judge.  Be that as it may, the comment of Reyes J is apposite and relevant.  The applicant said he made the complaint based on the facts and not belief, and his emphasis now is not so much lies but incompetence, based upon either defect in memory or mental problem.  I find the allegations against Chung J utterly unjustified.

40.  The whole saga arose out of Chung J’s order to vacate the trial dates fixed back in 2005.  That was precipitated by the applicant’s application for substantial amendment of the pleadings.  Successive pre-trial reviews were conducted to monitor the state of readiness for trial.  Judges are custodians or precious judicial resources, and cases that are not ready are not listed for trial in order that the court’s diary is not upset.  One must bear in mind that a defamation trial is one of the rare occasions for jury trials in a civil cause.  The applicant has taken out vast number of subpoenas with only witness statements of himself filed.  The actual number of subpoenas, be it 20 or 17 or even 10 as the case may be, does not detract from the fact that absence the filing of witness statements or proofs of evidence, there are substantial outstanding matters before the case is ready for trial.  A fortiori,in a jury trial, one must ensure the timetable for trial is adhered to as strictly as possible so that the jurors are not inconvenienced by any serious overrunning.  And the jury should be given their own bundles and not be bothered with irrelevant, prejudicial and/or inadmissible matters, and the earlier the detection and resolution the better, lest the jury has to be sent out for arguments in their absence.  The fact that the applicant is acting in person without the assistance of a solicitor means that the court must be more pro-active in seeing to it that the good practice is observed all the same.  I see nothing wrong or unreasonable for Chung J to exercise tight case management as he did.

41.  In the Judgment of the Court of Appeal dealing with the recusal of Chung J on the ground of bias arising from Corrigendum to the Decision dated 7 April 2006, Rogers VP had this to say:

“7.     That brings me to the application before the judge to recuse himself.  Not only was the judge right in refusing to recuse himself because the application upon which it was made, of apparent bias, was groundless, but he was very right to do so because it is far too easy for litigants to raise questions of apparent bias in order to have a particular judge not to try their case.  It is very important in the administration of justice that litigants cannot choose their judges and judges cannot choose their litigants… 

8.      In my view, this appeal has to be dismissed.  I have to say that if further applications like this are made, the Plaintiff is liable to have an order made which will prevent him making any further applications without leave of the court.”

42.  I can see the escalation of the applicant’s endeavours in choosing the forum.  The arguments progressed from bias to dishonesty, incompetence and lately, insanity.  The engagement commenced with Chung J, the magistrates and now the Chief Judge and Chief Justice.  He has fulfilled the prophesy of vexation by Rogers VP back in October last year.

43.  The applicant referred to s. 32 of the High Court Ordinance as basis of his argument that the Chief Judge must deal with his summons for the recusal of Chung J.  S. 32 is in fact concerned with trials in the Court of First Instance to be heard by a judge sitting alone, subject to the limited right to trial by jury under s. 33A of the High Court Ordinance.

44.  The Chief Judge has directed that the applicant make the application before Chung J himself.  Subject to what I have to say on repeatedly revisiting the subject on unjustified grounds, I see nothing unreasonable in the decision of the Chief Judge at the time.  It is not one that no sensible authority acting with due appreciation of its responsibility would have decided to adopt. 

45.  True that the Chief Justice is the head of the Judiciary and is charged with the administration of the Judiciary under s. 6(2) of the Court of Final Appeal Ordinance (Cap. 484).  However, it is beyond the wildest and fanciest imagination that the Chief Justice could have been sued as it is.

Conclusion

46.  In the premises, leave is refused.  But I have more to say.

Postscript

47.  In Ng Yat Chi v. Max Share Ltd & anor [2005] 1 HKLRD 548, the Court of Final Appeal recognized the increasing problems of “vexatious litigants”, i.e. those who persistently engaged in the abuse of the court’s process.  The vexatious litigants may be making applications in existing proceedings which abuse the court’s process, or commencing fresh proceedings seeking to re-litigate proceedings which have already concluded.  It was held that there is inherent jurisdiction in the High Court to make an order to restrict the making of applications or commencing fresh proceedings without the leave of the court.

48.  Following the Max Share case, the Chief Justice issued the Practice Direction on the making of Restricted Applications Orders (“RAO”) and Restricted Proceedings Orders (“RPO”) against vexatious litigants.  Such jurisdiction may be invoked at the own motion of the court (see Max Share case paras. 17 and 111).  And a RPO could be extended to cover judicial review applications (see SJ & anor v. Yuen Oi Yee & ors [2006] 1 HKLRD 679, 688F per Lam J).

49.  Rogers VP has given the warning to the applicant that if further applications of recusal are made, the applicant is liable to have an order made which will prevent him from making further applications without leave of the court.  I note that the applicant has also asked Chu J and Reyes J to recuse themselves, and needless to say, before myself as well.

50.  I consider the time has come for the applicant to show cause as to why an order should not be made that he be prohibited from making any applications in proceedings before the court and/or to commence any fresh proceedings in the High Court seeking the recusal of Chung J and/or assignment of a judge other than Chung J in HCA 890/2003.  I shall adjourn the matter to 23 July 2007 at 10 a.m. for the applicant to consider the matter and to seek legal advice, if so wished.