LEE YIU KEI v. HONG KONG LAND LTD AND ANOTHER

CACV 188/2015 AND CACV 198/2015

CACV 188/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 188 OF 2015

(ON APPEAL FROM HCA NO. 1097 OF 2014)

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CACV 198/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 198 OF 2015

(ON APPEAL FROM HCMP NO. 1913 OF 2014)

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(Heard together)

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J U D G M E N T
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Hon Kwan JA (giving the judgment of the court):

1.  These two appeals are brought against the orders made by Lok J in HCA 1097/2014 and in HCMP 1913/2014 on 3 August 2015. The orders concerned the dismissal of the claims in these two actions as an abuse of the court process.

The background

2.  For present purpose, the relevant background may be stated as follows.

3.  Lee Yiu Kei and Madam Leung Kwai Ling are spouses and joint tenants of a unit in Lai Sing Court, Tai Hang Road, Hong Kong, which was demolished and turned into a new development known as Serenade.  The defendants in the actions, HK Glory Properties Limited and Hong Kong Land Limited, are the developer and the guarantor of the development agreement entered into by them with the majority owners in 2001.  By the development agreement, it was agreed that if an order was granted by the Lands Tribunal under the compulsory sale proceedings and the land sold to the developer, each of the majority owners (including Mr Lee and Madam Leung) would be entitled to a new unit of a certain size in the new development, a cash compensation and a bonus provided certain conditions were met.

4.  After the new development was completed, despite the repeated demands of the developer, Mr Lee and Madam Leung declined to take up the assignment of the new unit allocated to them.  A bonus was available for distribution to them but was withheld by reason of their failure to take up the assignment.

5.  Madam Leung has brought numerous proceedings against HK Glory and Hong Kong Land.  They have been struck out and dismissed as vexatious proceedings.  She has exhausted all avenues of appeal, see the judgment of the Court of Appeal in HCMP 699/2014 and CACV 260 & 261/2013 on 24 September 2014.

6.  Furthermore, on 13 August 2013, DHCJ M Ng made RAOs and RPOs against Madam Leung in HCA 347/2013 and HCA 432/2013, being two of the actions brought by her against HK Glory and Hong Kong Land, restricting any further application or commencement of any fresh proceedings by her on any matters involving or relating to or touching upon or leading to her legal actions concerning the development agreement without the leave of the court.

7.  On 15 October 2014, DHCJ Lok (as he then was) struck out Mr Lee’s claims in three actions brought against HK Glory and Hong Kong Land, namely, HCMP 1881/2014, HCMP 1882/2014 and HCMP 2526/2014, as an abuse of the process of the court.  He also made RAOs and RPOs against Mr Lee in those three actions.  The judge held that the claims of Mr Lee in those three actions – no matter how he framed them, whether they involved a claim for repossession of his own unit or otherwise – were in substance the same claims made by Madam Leung against the defendants in the other actions and they have already been dismissed by the court.  There is no reason why Mr Lee could not have joined earlier in Madam Leung’s proceedings as they were in effect joint claimants.  It would be an abuse of process and manifestly unfair to the defendants that Mr Lee should be allowed to re-litigate the issues and he is clearly prohibited by the principle of res judicata in the wider sense from commencing another set of proceedings against the defendants (see Reasons for Decision, 21 October 2014, §§9 and 11).

8.  Before the RAOs and RPOs were made against Mr Lee in October 2014, two new actions were issued against HK Glory and Hong Kong Land.  They are the proceedings concerned in these two appeals.

HCA 1097/2014

9.  On 17 June 2014, a writ of summons was issued in HCA 1097/2014 by Mr Lee against HK Glory and Hong Kong Land.  On 19 June 2014, the writ was amended by adding Madam Leung as a plaintiff.  A statement of claim was filed on 15 June 2015 alleging misrepresentations, negligence, breach of trust, breach of a power of attorney dated 1 May 2001 and breach of the development agreement.  The total amount claimed is in excess of $90 million.

10.  No leave of the court had been sought by Madam Leung pursuant to the RAOs and RPOs made by DHCJ M Ng on 13 August 2013 before she was joined as a plaintiff in HCA 1097/2014.  On 22 June 2015, DHCJ M Ng held that Madam Leung’s claim in this new action is within the scope of the RAOs and RPOs and is a claim or collateral attack to re-open matters already determined in LDCS 1000/2003, HCA 1582/2011, HCA 366/2012, HCA 1324/2012, HCA 347/2013 and HCA 432/2013.  The judge ordered that Madam Leung’s claim in the statement of claim in HCA 1097/2014 be struck out and dismissed her action against the defendants.

HCMP 1913/2014

11.  This is the other new action brought by Mr Lee against HK Glory and Hong Kong Land.  It was commenced by an originating summons on 4 August 2014.  He claimed total compensation and damages of $390 million alleging breach of duty owed by the defendants under the power of attorney mentioned above, negligence, misrepresentations and breach of trust.

The hearing before Lok J and the orders made

12.  On 18 June 2015, the defendants’ solicitors wrote to the court seeking directions in relation to the two new proceedings brought against them.

13.  As mentioned above, DHCJ M Ng struck out Madam Leung’s claim in HCA 1097/2014 on 22 June 2015.

14.  Mr Lee’s claims in the two new actions were brought before the RAOs and RPOs were made against him.  The actions were referred to Lok J for consideration and he held a hearing on 3 August 2015 for Mr Lee to show cause why the court should not, on its own motion, dismiss his claims in these actions.  Lok J held it is clear that Mr Lee’s claims are re-litigation of the various claims dismissed by the courts in the past.  His claims in the new actions cover issues or facts which are clearly part of the subject matter of all the dismissed actions and could have been raised earlier.  He concluded that it would be an abuse of process to allow Mr Lee to proceed with his claims, which are clearly collateral attacks by him to re-open matters already determined in the earlier actions.  He therefore dismissed Mr Lee’s claims in each of the two actions.

These appeals and their disposal

15.  A notice of appeal was filed on 13 August 2015 against Lok J’s order in HCA 1097/2014 (CACV 188/2015).  It was taken out by Mr Lee and Madam Leung and amended on 19 August 2015.  It is stated in the amended notice of appeal that apart from appealing against Lok J’s order of 3 August 2015, they would also appeal against the order of DHCJ M Ng “in June and July 2015 to dismiss Leung’s claims, and to refuse Leung’s RPO application in HCA 1097/2014”.

16.  The appeal purportedly brought by Madam Leung against the order of DHCJ M Ng refusing leave to institute proceedings under the RPOs is not in order. Section 27A(2) of the High Court Ordinance, Cap 4 provides: “No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”  No leave has been given by the Court of First Instance to bring this appeal.  We therefore decline to entertain it.

17.  We turn to the appeals brought by Mr Lee against Lok J’s orders in HCA 1097/2014 (CACV 188/2015) and HCMP 1913/2014 (CACV 198/2014).  At the hearing before us, Mr Lee provided to the court his written submissions, which we have considered.  He sought an adjournment of his appeals for three months to provide new evidence, to make further submissions in writing, and to come up with a list of authorities and other documents for the hearing.  He repeated his contention that the two new actions are different from the previous cases, with particular reliance on the power of attorney, and there was no re-litigation.  He sought to put in grounds of appeal without seeking leave to amend his notices of appeal.  He asserted he has a right of “free access” to the courts as provided in the Basic Law and the Hong Kong Bill of Rights.

18.  The appeals brought by Mr Lee against Lok J’s orders are wholly without merit.  Prior to the hearing, the court has on more than one occasion refused Mr Lee’s request to adjourn the hearing.  We maintain there is no good reason for an adjournment.  Whether the power of attorney has been mentioned or relied on in the previous actions dismissed by the courts is immaterial.  We agree entirely with the judge these new claims are vexatious and an abuse of the process of the court.  The provisions of the Basic Law and the Hong Kong Bill of Rights, which have been raised in the past, are plainly not engaged in this situation, as rightly decided by the courts in the previous cases.

19.  We therefore dismiss the two appeals of Mr Lee.