THE LEGISLATIVE COUNCIL COMMISSION v. SIXTUS LEUNG CHUNG HANG

DCCJ 4497/2017

[2020] HKDC 827

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4497 OF 2017

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

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

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

DECISION

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

1.  Before me are:-

(a)     The Intended Party’s “ex parte” Notice of Appeal dated 11 May 2020 (“the Notice of Appeal”) appealing against the Registrar’s orders made on 5 May 2020 (i) upon certain default by the defendant, striking out his Defence and entering judgment against him for the sum of HK$929,573.00 with interest and costs (“the Judgment”), and (ii) dismissing the Intended Party’s inter partes summons dated 4 May 2020 (“the Subject Summons”) with costs; and

(b)     The Intended Party’s ex parte summons dated 22 July 2020 seeking to stay the execution of the Judgment (“the July Ex parte Summons”).

2.  There is originally also before me another ex parte summons dated 15 September 2020 issued by the Intended Party whereby she seeks to adjourn this hearing of the Notice of Appeal sine die.  She however withdraws it at the hearing.

3.  As the Notice of Appeal was stated thereon to be an ex parte[1], even though the plaintiff has notice of it, the plaintiff by its solicitors’ letter dated 8 September 2020 made submissions that it should be dismissed and informed the court that the plaintiff would not appear at this hearing.

Background

4.  The plaintiff seeks, by this action commenced in October 2017, to recover remunerations paid by it to the defendant.

5.  The Intended Party is not a party to this action.  However, by a number of applications made between 23 October 2017 to 25 June 2018, the Intended Party, acting all along in person, applied (initially ex parte and later inter partes as directed by the court) to adduce evidence in this action and/or to intervene and/or to join as a party.  Her respective applications for the said purposes were dismissed by Registrar Ho and Master SP Yip on 13 November 2017 and 26 June 2018 (the “Masters’ Decisions”).

6.  The Intended Party then appealed against the Masters’ Decisions directly to the Court of Appeal[2] instead of before a District Judge.  By a judgment dated 17 September 2018, the Court of Appeal struck out the appeal as an abuse of process.  On 28 September 2018, the Intended Party issued a summons before the Court of Appeal to seek leave to re-open the said judgment.  That was dismissed on 10 December 2018 as being totally devoid of merits.  Later, the Intended Party applied for leave to appeal to the Court of Final Appeal and her application was dismissed by the Court of Appeal on 28 May 2020.

7.  While the said summons in the Court of Appeal issued on 28 September 2018 was pending and on 16 November 2018, the Intended Party sought to appeal on an ex parte basis against the Masters’ Decisions in the District Court (the “DC Appeal”).  On the date fixed for the hearing of the DC Appeal, which was 10 December 2018, the Intended Party did not appear, and the DC Appeal was dismissed.

8.  A week later on 17 December 2018, the Intended Party took out an ex parte summons to seek to “restore” the DC Appeal (“December 2018 Summons”).  After many procedural skirmishes, the December 2018 Summons (among two other summonses) was finally heard on 9 December 2019 before His Honour Judge Harold Leong.

9.  By a decision handed down on 18 December 2019 (“the Decision”), the learned judge dismissed the December 2018 Summons.  In that decision, the learned judge has considered (among others) the merits of the Intended Party’s original applications to adduce evidence and/or to intervene and/or to join as a party and concluded that there was simply no merits in her such applications[3]. The learned judge there further took the view that the Intended Party’s various applications constituted a flagrant and repeated abuse of the court’s process and ordered on a nisi basis indemnity costs against the Intended Party to show disapproval.  The Intended Party then made a number of “applications” regarding the Decision, including an application for leave to appeal, the disposal of which are pending.

10.  Despite the rejection of her application to intervene/to join as a party, and on 4 May 2020, one day before the hearing of the Case Management Summons in this action, which was scheduled some time ago to be heard on 5 May 2020, the Intended Party made an ex parte paper application before the duty judge, and managed to obtain leave from him to urgently issue the Subject Summons and to attend the hearing of the Case Management Summons the next day before the Registrar for the Subject Summons to be first heard (“the Duty Judge’s Leave”).  Evidently, the above-mentioned judgments and decisions made by the various courts have not been brought to the attention of the duty judge.  It should be recalled that on 4 May 2020, it was necessary for any party who wished to file an application to first obtain the permission from the duty judge so to do as the District Court Registry was not yet opened generally due to the General Adjourned Period (“GAP”) implemented as a result of the COVID-19 pandemic.

The Subject Summons

11.  The Subject Summons, like all other summonses issued by the Intended Party herein, was written on a standard form with handwritings not only in the body but scribbled all over and covering the top, left, right and bottom margins, making it unfocused, illegible and incomprehensible.  To illustrate, an image of the Subject Summons (with her personal information covered up) is attached to this decision.

12.  So far as can be deciphered, in the Subject Summons the Intended Party applied for an order that the plaintiff’s claim herein be stayed

(i)     “pending determination by Higher Court(s)”;

(ii)     “pending Intending Party to submit Senior Counsel(s)’ Certificate for “Merit””; and

(iii)     alternatively, this action “be stayed on grounds of the “privileged documents” submit by Intended Party that the outcome of proceedings of DCCJ 4497/2017 on “Mr Leung” affect the “interest” of the Intended Party”.

13.  The Subject Summons was dismissed by Registrar Lui on 5 May 2020.  The dismissal is now one of the subject matters in the Notice of Appeal.

The Judgment

14.  To understand the making of the Judgment, I would need to refer to the procedural history in this action.

15.  The defendant all along acts in person.  He filed his Defence on 20 November 2018.

16.  On 18 December 2018, a Request for Further and Better Particulars of the Defence (“F&B”) and the Reply were filed by the plaintiff.  No response was given by the defendant regarding the request for F&B.

17.  On 26 April 2019, the plaintiff filed its Timetabling Questionnaire pursuant to O 25 r 1(1) of the Rules of District Court.  The defendant failed to file his Timetabling Questionnaire as required by the said rule.

18.  On 31 May 2019, the plaintiff took out a Case Management Summons as required under O 25 r 1(3), to be heard on 26 June 2019, and it also took out a summons seeking an order that the defendant do provide the requested F&B (“F&B Summons”).  The Case Management Summons and the F&B Summons were duly served to the defendant the same day they were taken out.

19.  The defendant however was absent at the hearing of the Case Management Summons on 26 June 2019. Whereupon, Registrar Ho made (among others) an order (“Registrar Ho’s Order”)

“Pursuant to Order 25, rule 9(6), the rules of the District Court (Cap.336H), the Defendant do write to the Court (with copy to the Plaintiff) to explain his absence at today’s Case Management Summons hearing and to confirm whether the Defendant intends to defend the Plaintiff’s claim herein within 7 days from the date of service of this Order, failing which the Defendant’s Defence shall be struck out and the Plaintiff shall be at liberty to apply for judgment against the Defendant as per the relief claimed herein with costs”.

20.  Registrar Ho’s Order was duly served to the defendant on 10 July 2019.

21.  The defendant did not comply with Registrar Ho’s Order in time, or at all.

22.  By the plaintiff’s solicitors’ letter dated 26 July 2019 to the court and copied to the defendant, the plaintiff applied for an order striking out the Defence and for liberty to enter judgment against the defendant, pursuant to Registrar Ho’s Order and upon the defendant’s failure to comply.

23.  On 26 and 30 July 2019, Registrar Lui respectively ordered that the hearing of the Case Management Summons be adjourned to 17 December 2019 and the plaintiff’s application for judgment by the said letter be dealt with on the same occasion.

24.  On 16 December 2019 and pending the outcome of the hearing before His Honour Judge Harold Leong of the December 2018 Summons mentioned in paragraph 8 above, the hearing on 17 December 2019 of the Case Management Summons and of the plaintiff’s application for judgment by the said letter was adjourned sine die with liberty to restore.

25.  After the Decision was handed down on 18 December 2019, the Case Management Summons and the plaintiff’s application for judgment was fixed to be heard on 31 January 2020. Due to the GAP, the hearing was refixed on 27 February 2020 by Registrar Lui to be heard on 5 May 2020.  According to the affirmation of service filed by the plaintiff, the court’s direction refixing the said hearing date was duly served to the defendant.

26.  Therefore, from the time the plaintiff applied for judgment by letter dated 26 July 2019 until the hearing to be held on 5 May 2020,

(a)     there was a lapse of over 9 months;

(b)     the hearing was adjourned 3 times and each time the defendant has been duly notified and therefore reminded of the pending application for judgment; and

(c)     yet, there was no attempt by the defendant to seek an extension of time to comply with Registrar Ho’s Order or to make any application whatsoever seeking any form of relief against the consequence of his non-compliance with Registrar Ho’s Order.

27.  At the hearing on 5 May 2020, the defendant again did not appear and Registrar Lui therefore acceded to the plaintiff’s application and entered the Judgment against the defendant.  On that occasion, the Subject Summons was also dismissed.

28.  By a letter dated 11 May 2020 (the day the Notice of Appeal was issued) and by another ex parte summons dated 12 May 2020 filed together with her submissions, the Intended Party yet again applied for a stay of this action and/or a stay of execution, and for the setting aside of all orders made by Registrar Lui on 5 May 2020.

29.  Her application by letter and her said ex parte summons was dismissed by His Honour Judge Andrew Li on 12 May 2020 for the reasons that the Intended Party has no locus standi to make an application for a stay of this action or a stay of execution and that the orders of Registrar Lui made on 5 May 2020 are the subject matters of the Notice of Appeal.

The Notice of Appeal cannot be ex parte and must be served to every other party

30.  In relation to an appeal from Masters to a judge in chambers, O 58 r 1(2) provides:-

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

31.  The Intended Party’s insistence that this appeal can be brought by a notice ex parte is clearly contrary to O 58 r 1(2) and wrong procedurally and the present appeal could be dismissed on that procedural ground alone.  However, to save judicial resources and further time and costs, and there being no objection from the plaintiff, this court is prepared in the circumstances, and pursuant to O 2 r 1, to overlook this irregularity and deal with the appeal substantively.

The Intended Party has no locus standi in this action

32.  I have set out above that the Intended Party’s application to intervene and/or join as a party was dismissed in November 2017 and June 2018 by the Masters’ Decisions.  The DC Appeal against them was dismissed on 10 December 2018.  Her application to re-open the DC Appeal was dismissed by the Decision on 18 December 2019, in which the court has considered the merits of her application to intervene and/or join as a party and has adjudged that there were no merits to them.

33.  It thus has already been adjudged that the Intended Party has no right to intervene and has no locus standi to make the application by the Subject Summons or to appeal against the Judgment.

34.  Much reliance is now placed by the Intended Party on the Duty Judge’s Leave.  I have above set out the circumstances and the arrangement whereby leave was required on 4 May 2020 to file the Subject Summons.  Without a doubt, the effect of the Duty Judge’s Leave was merely, firstly, allowing the Intended Party to issue the Subject Summons, as the Registry was then still generally closed because of GAP and the filing of documents need to be certified as urgent by a duty judge; and secondly, allowing her to attend the scheduled hearing before Registrar Lui, who was clearly conversant with the whole proceedings having case managed it for a while, so that her application could then be considered by the Registrar.  The Duty Judge’s Leave was merely a procedural order pertaining to the then arrangement under GAP.  In my view, the Registrar was not only free to decide/dispose of the Subject Summons substantively, but in fact was meant by the Duty Judge’s Leave to do so.

35.  The effect of the Duty Judge’s Leave has clearly been misunderstood by the Intended Party and her reliance thereon was clearly misplaced.

36.  Moreover, it is trite that on any ex parte application, the applicant must proceed with the highest good faith and must disclosed all facts and matters which are material for the judge to know and which are necessary to enable him to exercise his discretion properly (paragraph 29/1/51 Hong Kong Civil Procedure 2020).  No such disclosure of the various orders, judgments and the Decision dismissing the Intended Party’s applications to intervene and/or join as a party have been made in the Intended Party’s 6-page “submissions” attached to the Subject Summons placed before the duty judge on 4 May 2020.  Therefore, had the plaintiff so applied, the Duty Judge’s Leave was liable to be set aside as being given based upon material non-disclosure.

37.  I therefore reject all the Intended Party’s arguments insofar as she argues that the Duty Judge’s Leave affords her locus standi in this action.

38.  As the Intended Party has no locus standi to make the application herein by the Subject Summons, the Registrar was right in dismissing it.  Likewise, she has no locus standi to appeal against the Judgment.  Her Notice of Appeal is hereby dismissed.

39.  There is also this matter of repeated “applications” by the Intended Party for various judicial officers to read certain “privileged documents”, which the Intended Party claims would show she has an “interest in this action” as an “implied nominee” or “representative of majority voters”.  This court has the opportunity to ventilate this with the Intended Party and thinks it better to record the circumstances and the reasons for this court’s refusal to read them.

40.  The “privileged documents”, from what can be observed on the bench, consist of a pile of documents altogether about an inch thick.  The Intended Party has not adduced any copy of any of them as evidence in any affirmation or attached any of them to any documents lodged or filed with court.  She claims they are “privileged” and “confidential” and could not be shown to the plaintiff or any of its representatives.  She claims they are for the judge’s eyes only.

41.  It is trite that only certain classes of documents are recognised as privileged and a party claiming privilege must make the claim in his list of documents with a sufficient statement of the grounds of the privilege (paragraph 24/5/6 Hong Kong Civil Procedure 2020 and O 24 r 5(2)).  At the hearing and trying to form some initial understanding of the matter, this court asks the Intended Party several times if any basic information can be given about these documents, such as who the makers of these documents were.  The Intended Party insistently refuses to give any information save saying that one of the documents was issued by “a public authority”.  She repeatedly confirms upon being asked by this court that she intends the court to rely on these “privileged documents” to hold in her favour that she is “an interested party” but copies of these documents could not be shown or given to the plaintiff under any circumstances and no details whatsoever about them could be mentioned or referred to in the court’s decision.  She insists that this court is to receive and read these documents, but on those conditions.

42.  In the circumstance, this court refuses to have any of these so-called “privileged documents” handed up to the bench or to read any of them, not only because they are not in evidence, but more importantly also, it would be a clear violation of the rule of natural justice and fairness for the court to read and take into account and base its judgment on materials that the opposing party is not allowed or otherwise has no access to.

The July Ex parte Summons

43.  By the July Ex parte Summons, the Intended Party applies to stay the execution of the Judgment under O 45 rr 9, 10 and 11.  At the hearing, the Intended Party clarifies that she applies for the stay as a non-party under O 45 r 9, so as to enforce the Duty Judge’s Leave.

44.  O 45 r 9 provides:-

“(1) Any person, not being a party to a cause or matter, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to the order by the same process as if he were a party.

(2) Any person, not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process of enforcing obedience to the judgment or order as if he were a party.”

45.  I have held above that the Duty Judge’s Leave was merely procedural in nature, which in any event has already been carried out as the Registry has pursuant thereto accepted the issuance by the Intended Party of the Subject Summons and the Intended Party has already been allowed and did attend the Case Management Summons hearing on 5 May 2020 in respect of the Subject Summons.  There is thus nothing outstanding in relation to the Duty Judge’s Leave to enforce.

46.  The July Ex parte Summons and the reliance on the Duty Judge’s Leave as a basis in support of a stay of execution are totally misconceived.  I will therefore dismiss the July Ex parte Summons.

Disposal

47.  In the premises, the Notice of Appeal and the July Ex parte Summons are dismissed and the said orders made by Registrar Lui on 5 May 2020, including the costs order in respect of the Subject Summons, do stand.

48.  The Notice of Appeal and the July Ex parte Summons are clear, flagrant and repeated abuses of process, in my view, intended to improperly delay and hinder the plaintiff’s claim, and much valuable judicial resources have been wasted thereby, in terms of the time of the judicial officers and of their supporting staff and the Registry.  This court is affronted by such flagrant abuse and must mark its disapproval.  Therefore, I order on a nisi basis, to become absolute within 14 days, the Intended Party to pay the costs of the plaintiff of the Notice of Appeal and the July Ex parte Summons (if any costs have been spent by the plaintiff thereon) to be taxed on an indemnity basis.

Postscript

49.  As the Intended Party has no locus standi in this action, the Registry is entitled to refuse any further filing or lodging herein of any applications/documents by the Intended Party save those that could be clearly shown to be relating to the disposal of such pending applications she has already been a party of and are filed/ lodged according to proper procedure.

50.  It has become customary for the Intended Party to make applications ex parte, in breach of the relevant Rules of the District Court and the established practice of civil procedure. This court is minded to summarily dismiss all her applications (even if she is entitled to file one under the circumstances described in paragraph 49 above) if the same are not entitled under the rules or established procedures to be made ex parte, but are so made.

51.  Moreover, the Intended Party’s summonses (and also many of her letters, affirmations and “submissions”) are unfocused, illegible and incomprehensible in the manner described in paragraph 11 above.  A person who genuinely intends his/her documents to be correctly understood and who genuinely intends to make a proper application in good faith would not make his/her applications and documents so; such a person would do the opposite.  Filing and lodging such documents repeatedly (not just inadvertently) is an abuse of process.  Much valuable time has already been unnecessarily and meaninglessly wasted by all concern in trying to read them.  The Registry is advised to refuse to file or accept any such documents from the Intended Party.