SECRETARY FOR JUSTICE v. YUEN OI YEE LISA

HCMP2390/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2390 OF 2008

---------------------------

---------------------------

-----------------------

DECISION

-----------------------

1.  Three summonses, all taken out by the respondent, were made returnable at the hearing date. Chronologically, they are: (1) the summons dated 1 April 2010 applying for leave to appeal against the order made on 22 March 2010; (2) the summons dated 12 July 2010 applying for leave to cross-examine eight people at the resumed hearing of these committal proceedings on 24 and 25 August 2010; and (3) the summons dated 13 July 2010 applying for “leave to add summoned parties as follows to my summons dated 1^st April 2010:- 1. Mr David Chan 2. Ms Jenny Fung”.

Summons dated 1 April 2010

2.  The summons dated 1 April 2010 is an application for leave to appeal against the order made on 22 March 2010.  The order relates to two draft summonses dated 18 and 22 March 2010 respectively (“the 1^st and 2^nd draft summons” respectively).  The respondent put forward the two draft summonses at the commencement of the hearing of the committal proceedings on 22 March 2010 and asked for leave or direction to issue them. 

3.  The 1^st draft summons sought to strike out this application, to counterclaim HK$1 million against Miss Jenny Fung for injury to feeling and to reverse (erroneously written as “reserve”) all previous costs orders.  The 2^nd draft summons sought to compel the Police to investigate the respondent’s complaints against Mr Tony Boulton (as contained in her statement dated 18-1-2010) and Miss Jenny Fung (under reference no. CRN1006350). 

4.  On 22 March 2010, after hearing submissions from the respondent and counsel for the applicant, I refused to grant leave or direct for the two draft summonses to be issued for the following reasons:

(1) The respondent’s reason for requesting from this court leave or direction to issue the draft summonses is mistaken.  Contrary to her assertion, Yam J did not on 6 January 2010 made a restrictive application order (RAO) or a restrictive proceedings order (RPO) in these proceedings against her. 

(2) It is procedurally improper for the respondent to make the leave applications to this court at the committal proceedings herein. Applications for leave to bring proceedings or application by a person subjected to RPO or RAO should be made on paper and without an oral hearing: see Practice Direction 11.3 at paragraphs 7(4) and 10(5).  The application for leave should be placed before the designated judges and not any other judge.

(3) There were in any event no merits in the two draft summonses:

 (a)    On the 1^st draft summons, the respondent had not put forward any arguable ground to strike out this action or to counterclaim for HK$ 1 million.  It is also not open to the respondent to make a civil claim by way of a counterclaim in these contempt proceedings.  Additionally, Miss Fung is not a party to these proceedings.  As to previous costs order made in these proceedings, there is neither basis nor jurisdiction for this court to reverse them.

(b)     On the 2^nd draft summons, it is not within this court’s power and jurisdiction to order the Police to conduct the investigations suggested by the respondent.  The investigations desired by the respondent also have no direct relevance to the issues in dispute in these committal proceedings.

5.  By her summons dated 1 April 2010, the respondent seeks leave to appeal against my order.  The leave application is however confined to: (i) in the case of the 1^st draft summons, the application for leave to counterclaim against Miss Jenny Fung; and (ii) in the case of the 2^nd draft summons, the application for an order directing the Police to investigate her report against Miss Fung. 

6.  At the hearing on 15 July 2010, after Mr Ko made his submissions, the respondent indicated she would not pursue the application.  Upon the respondent abandoning the application, the summons is dismissed.  The costs of the application shall be paid by the respondent to the applicant to be taxed if not agreed.

Summons dated 13 July 2010

7.  Turning to the summons dated 13 July 2010, although it is less than clear from its wordings, the respondent clarified that she was seeking leave to add Mr David Chan and Miss Jenny Fung as parties to these proceedings for the purpose of counterclaiming against them for damages.  The summons was addressed to and served on: (i) the applicant; (ii) the Commissioner of Police; and (iii) Miss Jenny Fung.  Neither Miss Fung nor any representative of the Commissioner of Police appeared on the summons.

8.  Miss Fung is a government counsel of the Department of Justice.  The respondent’s intended counterclaim against her is in connection with a report to the Police arising out of faxes sent by the respondent to Miss Fung.  In the case of Mr David Chan, he is a police officer.  The respondent’s intended counterclaim against him relates to a police search operation conducted on the respondent’s premises, in which Mr Chan had taken part.   

9.  As with the summons dated 1 April 2010, after Mr Ko made his submissions, the respondent decided not to proceed with this summons.   As the application was being abandoned, the summons falls to be dismissed with the applicant’s costs of the application to be paid by the respondent.

Summons dated 12 July 2010

10.  I turn finally to the respondent’s summons dated 12 July 2010.  By the summons, the respondent seeks leave to cross-examine at the resumed hearing of these committal proceedings eight people said to be deponents of affidavits filed by the applicant.  They are: (i) Lee Ching Mei (ii) Anita Lam (iii) Miranda Lam (iv) Chung Kit Ching (v) Lee Yuk Yin (vi) Cynthia Lee Yuet Wa (vii) Jenny Fung and (viii) Mr Tony Boulton.

11.  The respondent had previously sought to, but was refused leave, to issue witness subpoenas against these eight people.  In the case of Mr Bouton, he is resident outside jurisdiction and the respondent had not provided an address at which he may be served personally within the jurisdiction.  In the case of the other seven people, they are the applicant’s witnesses.  It is not open to the respondent to subpoena or call them. 

12.  In support of her present application, the respondent had filed two affirmations with voluminous exhibits.  She had also gone into great length at the hearing to justify her application.   

13.  Before analysing the present application, it is necessary to make two observations on matters of fundamental principle. The first is that the respondent has a duty to demonstrate that the reasons or purpose for cross-examinations and the subject matter of the intended cross-examinations are properly related to and directly relevant to the issues to be determined at the trial. The second is that the cross-examination procedure as well as these proceedings could not be used for collateral purposes, such as for obtaining evidence or discovery for other proceedings or for ventilating the respondent’s grievances or even as means of retaliation.

14.  I deal firstly with the application relating to Mr Boulton, Miss Miranda Lam and Miss Anita Lam.  It is sufficiently clear from the respondent’s affirmations and oral submissions that the purpose of the cross-examinations of the three of them is for the purpose of the criminal case of ESCC5404/2008 in which the respondent was convicted of the offence of forgery and sentenced to three months’ imprisonment.  The respondent has made it plain that she is setting out to establish she had Mr Boulton’s authority to commence HCA189/2008 and Mr Boulton had given false affidavit and statement on this.  The respondent also wishes to question Miss Anita Lam and Miss Miranda Lam as to why they did not stop her when they were given a copy of her written application to Lam J made on 27 November 2007 for leave to bring a claim that was exactly the same as the one in HCA189/2008.  The respondent also wants to ask them why they did not contact Mr Boulton at that time, so much so that Mr Boulton said he was shocked when Miss Miranda Lam contacted him in February 2008.  All these, she says, can ultimately show the two of them instructed Mr Boulton to give false affidavit against her and further show the three of them had worked together to cause her conviction.   

15.  The institution of HCA189/2008 forms the subject matter of the criminal prosecution in ESCC5404/2008.  By reason of Fung J’s order dated 13 January 2009, allegations that form the subject matter of the criminal prosecution in ESCC5404/2008 are excluded from these committal proceedings.  Henceforth, matters relating to the commencement of HCA189/2008 do not form part of the allegations against the respondent herein.  The affidavit of Mr Boulton and some of the paragraphs in other witnesses’ affidavits relating to the institution of HCA189/2008 had also been excluded from the evidence in these proceedings.  

16.  It follows that Mr Boulton is not a deponent of affidavits relied upon by the applicant in these proceedings.  Further, issues as to whether HCA189/2009 was properly and lawfully brought by the respondent in the name of Mr Boulton have no relevance to the issues to be determined in these committal proceedings.  The respondent asserted that the question of whether she had Mr Boulton’s authority to bring the action and whether he and the two Miss Lam worked together to give false affidavits and statements are important to her future appeal to the Court of Final Appeal against her conviction in ESCC5404/2008.  Leaving aside the correctness of this assertion, what the respondent admittedly set out to do is a misuse of the cross-examination procedure as well as these proceedings. 

17.  The respondent also seeks to cross-examine Miss Miranda Lam and Miss Anita Lam in connection with the bankruptcy order made against her.  She said she had twice offered to pay the debt but was not accepted by Miss Miranda Lam and Miss Anita Lam had made false affidavit in CACV62/2008, which was the respondent’s appeal against the bankruptcy order.  The respondent said she wanted to ask why were her payments not accepted.  The respondent further said she wanted to have her bankruptcy order discharged and would be able to make the payment.  The circumstances leading to the respondent’s bankruptcy are irrelevant to the allegations and issues in these contempt proceedings.  Matters on discharge of bankruptcy order are for the Bankruptcy Court and not for this court sitting in the committal proceedings.   

18.  The respondent has in explaining the reasons for the cross-examinations of Mr Boulton, Miss Miranda Lam and Miss Anita Lam, indicated she wanted to have the Police prosecute the three of them.   Indeed, it is obvious from the respondent’s affirmations and submissions that she sees and intends the cross-examinations as a means of retaliation against the three.  This is an abuse of the cross-examination procedure as well as of these proceedings.  The respondent has no proper and legitimate purpose for examining Mr Boulton, Miss Miranda Lam and Miss Anita Lam, the application for leave in relation to the three of them should be refused.

19.  As to Miss Jenny Fung, the respondent said in paragraph 7 of her affirmation dated 12 July 2010 that the cross-examination of Miss Jenny Fung is “for her personal grudge taken against me in this action”.  The respondent claims that Miss Fung brought these contempt proceedings against her as a personal vendetta and she therefore wants to cross-examine Miss Fung on her motive.  It is also her wish to counterclaim against Miss Fung for HK$1 million for injury to her feeling. 

20.  This action was not instituted by Miss Fung; Miss Fung is not a party to it.  These contempt proceedings were brought by the Secretary of Justice in exercise of his public functions and responsibilities.  Miss Fung had made an affidavit on behalf of the Secretary of Justice to exhibit the related documents and affidavits.  From the materials before the court, there is no discernable basis for the respondent’s assertion that Miss Fung harbours a personal grudge against her.  More importantly, any motive on the part of Miss Fung is utterly irrelevant to the issues in these proceedings.  The respondent said she wants to ask Miss Fung where did she obtain the information contained in her affidavit in support of these proceedings.  The source of Miss Fung’s information (which consists primarily of documents) is either self-explanatory or had already been explained in her affidavit.  The relevance of the source of the information to the issues herein is also not explained.  It is not shown how cross-examination of Miss Fung can advance the understanding of the case of the applicant or of the respondent’s objection to it.

21.  On the other hand, as in the case of Mr Boulton, Miss Miranda Lam and Miss Anita Lam, it is evident that the respondent intends the cross-examination of Miss Fung to be a means of retaliation.  This is an abuse of the court process.  The application for leave to cross-examine Miss Fung is refused.   

22.  I turn finally to the remaining four people named in the summons.  They are all court staff who had made affidavits in these proceedings.  In the course of her reply submissions, the respondent indicated she no longer need to trouble Miss Chung Kit Ching and would not be pursuing the application to cross-examine Miss Chung.  In respect of Miss Lee Yuk Yin and Miss Cynthia Lee, the intended cross-examinations relate to the issuance of the bankruptcy petition in HCB9860/2007, which forms part of the allegation of contempt herein.  The petition was presented in the name of “David & Goliath”.  The respondent claims that she and a Mr Lau Chak Nam are partners of David & Goliath, and Mr Lau was present when she tried to issue the bankruptcy petition.  The respondent says there was no breach of court order because Mr Lau was not under any restrictive orders or injunction.  According to the respondent, the intended cross-examinations of Miss Lee Yuk Yin and Miss Cynthia Lee are to establish Mr Lau’s presence when she tried to issue the bankruptcy petition. 

23.  Mr Ko informed the court that Miss Lee Yuk Yin would be making an affidavit in reply to the respondent’s assertion in her supplemental affirmation that she had certain discussions with Miss Lee about the issuance of the petition.  Mr Ko further indicated that the applicant does not oppose to making available Miss Lee Yuk Yin for cross-examination on: (i) whether Mr Lau Chak Nam had any role to play in the attempts to issue the petition in HCB9860/2007; and (ii) if so, what was his role.  In my view, these are matters directly relevant to the issues associated with the attempted issuance of the bankruptcy proceedings in HCB9860/2007.  The respondent’s application in relation to Miss Lee Yuk Yin is allowed to the extent indicated. 

24.  As to the intended cross-examination of Miss Cynthia Lee, since the purpose is the same as that of the cross-examination of Miss Lee Yuk Yin, there is no perceivable need or reason to duplicate the process.  The application relating to Miss Cynthia Lee is not allowed.

25.  As for Miss Lee Ching Mei, the respondent seeks to cross-examine her for the purpose of: (i) asking her to provide a document the respondent had sent to her, which is said to be important for the respondent’s criminal appeal; (ii) establishing it is not a breach of the injunction for the respondent to telephone Miss Leung, who was Miss Lee’s assistant; (iii) showing Lam J would not have notice of any abusive remarks contained in documents sent by the respondent since Miss Lee stated in her affirmation that Lam J had directed for them to be put away on shelves; (iv) showing the time of the telephone call made by the respondent on 24 November 2007 should have been midnight and that the penal notice had at the time not yet served on the respondent; (v) confirming that the documents the respondent sent to Lam J or to Miss Lee were merely “time proof” because they were used and relied upon by the respondent in her subsequent RAO or RPO leave applications; and (vi) confirming that Miss Lee knew and had met Mr Lau Chak Nam because there was an occasion when they were in the same lift.

26.  Cross-examining Miss Lee for the purpose of obtaining a document for a future appeal against the respondent’s conviction for forgery, as said above, is a misuse of the cross-examination procedure and of these proceedings.  Whether Miss Lee knew or had came across Mr Lau is irrelevant to whether the respondent is guilty of the several allegations of contempt that form the subject matter of these proceedings. As for the remaining purposes of the intended cross-examinations, they are matters for submissions and arguments and are not proper subject matter for cross-examinations.  The respondent has failed to demonstrate the relevance and necessity of the intended cross-examination of Miss Lee.  This part of the application is refused.

Conclusion

27.  In summary, I make the following orders:

(A) Summons dated 1 April 2010

(1)   The summons is dismissed.

(2) The respondent pays the applicant the costs of the application to be taxed if not agreed.

(B) Summons dated 12 July 2010

(1) The respondent has leave to cross-examine Lee Yuk Yin on: (i) whether Mr Lau Chak Nam had any role to play in the attempts to issue the petition in HCB9860/2007; and (ii) if so, what was his role.

(2) The application for leave to cross-examine (i) Lee Ching Mei (ii) Lam Wan Ching Anita (iii) Lam Kit Seong Miranda (iv) Chung Kit Ching (v) Cynthia Lee Yuet Wa (vi) Jenny Fung and (vii) Mr Tony Boulton is refused.

(3)   The costs of the application shall be costs in the cause.

(C) Summons dated 13 July 2010

(1)   The summons is dismissed.

(2)   The respondent pays the applicant the costs of the application to be taxed if not agreed.