XCHRX TSE JEEKEEN v. "H.K. ALLIANCE IN SUPPORT OF PATRIOTIC DEMOCRATIC MOVEMENT OF CHINA" & ITS CHAIRMAN MR SZETO WAH AND OTHERS

HCA 14/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 14 OF 2000

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J U D G M E N T

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1. There are 2 matters before me. One is the Plaintiff's appeal against the order of Registrar C Chan dated 10 February 2000 when he struck out the Plaintiff's Statement of Claim herein, dismissed this action and prohibited the Plaintiff from making further applications in this action without leave of the court. The other is the Defendants' application for appeal out of time against the learned Registrar's order of 10 February 2000 when he refused to make an order prohibiting any further legal proceedings (other than the present action) from being commenced by the Plaintiff in respect of the same claim or subject matter without leave of the court.

2. Having heard the parties and considered the materials before me, I agree entirely with the learned Registrar's order against the Plaintiff. There are at least 2 bases on which the learned Registrar's order can be supported:-

(a) the Statement of Claim herein discloses that the Plaintiff's claim against the Defendants is based on an alleged slander of the Central Government of the PRC and its leaders, an alleged incitement of the public against them, an alleged attempt to overthrow the Central Government and treasonable link to foreign powers. Even if these allegations were true, the Plaintiff lacks the necessary locus standi to commence this action. This action should be struck out and dismissed on that ground alone;

(b) further to (a) above, the same or similar matters have been brought by the same Plaintiff against the same Defendants earlier in HCA 13938 of 1998. That action has been struck out and dismissed by the Court in an order of the Master dated 10 March 1998, an order of Cheung J dated 12 April 1998, a Judgment of 15 July 1998 of the Court of Appeal and a Judgment of the Court of Final Appeal dated 10 September 1998. The present action is therefore an abuse of process because it is an attempt to re-litigate the same matter.

3. I enquired with the Plaintiff at the hearing on 23 March 2000 why he considered he could still institute this action after the earlier action had been dismissed. He gave 2 reasons in response:-

(a) he should be entitled to a trial of his claim and both the earlier action and this action were dismissed without a trial;

(b) the decisions to dismiss the earlier action were not decisions of the learned Judges at various levels of the Hong Kong Courts but were the decisions of the former President of the U.S., Mr George Bush, made through the Hong Kong Government.

The Plaintiff went on to say in effect that if I were to dismiss his appeal, I would also be doing so as instructed by Mr Bush. He also said that he would be commencing similar legal proceedings in the Supreme Courts of 164 nations, including that in the U.S.

4. These remarks of the Plaintiff are astonishing. I have no hesitation in concluding that there is no truth in these wild accusations and the Plaintiff has not even attempted to adduce a scintilla of evidence to support them. I can only infer from these remarks that the Plaintiff was either acting maliciously against the Defendants without any proper basis, or that parts of the faculties of his mind are suffering from some kind of dysfunction.

5. Further, as regards the Plaintiff's point (a) above, the Courts' decisions in the earlier action were obviously made on the basis that public funds (as well as the resources of the Defendants) should not be further wasted thereon. The history of the 2 sets of proceedings indicates that they are correct in making those decisions.

6. For the above reasons, the Plaintiff's appeal is dismissed.

7. In relation to the Defendants' application, the Defendants are in essence applying to declare that the Plaintiff is a "vexatious litigant". The procedure for making such an application is set out in s. 27 of the High Court Ordinance, Cap. 4 which stipulates that:-

"27. Vexatious litigants

(1) If, on an application made by the [Secretary for Justice] under this section, the Court of First Instance is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the Court of First Instance or in any inferior court, and whether against the same person or against different persons, the Court of First Instance may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall without the leave of the Court of First Instance be instituted by him in any court and that any proceedings instituted by him in any court before the making of the order shall not be continued by him without such leave and such leave shall not be given unless the Court of First Instance is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings. (Amended 25 of 1998 s. 2)

(2) A copy of any order made under subsection (1) shall be published in the Gazette. (Added 52 of 1987 s. 21)

[cf. 1925 c. 49 s. 51 U.K.]"

8. At one stage, I considered that there is no reason why the Defendants should not act in accordance with the provisions of s. 27 of Cap. 4. This is because the footnotes to Ord. 94 of the U.K. Rules of the Supreme Court indicate that an individual's rights of access to court are important and fundamental and should not be lightly disturbed: see The Supreme Court Practice 1999, Vol. 1, para. 94/15/3. Although there is no equivalent of Ord. 94 in the Hong Kong Rules of the High Court, I consider the provisions of s. 27 of Cap. 4 to be sufficiently similar to s. 42 of the Supreme Court Act 1981 (to which Ord. 94 is related) so that the observations in para. 94/15/3 should also apply to this kind of application in Hong Kong.

9. Mr Clancey for the Defence very helpfully referred me to 2 authorities:-

(a) Ebert v. Birch and Another, NLJ Law Rep., 23 April 1999, p. 608, C.A.;

(b) Grepe v. Loam; Bulteel v. Grepe (1887) 37 Ch. D. 168.

10. The headnote of the Ebert case stated:-

"A court may exercise its inherent jurisdiction to make orders prohibiting a party who has brought a series of vexatious proceedings from commencing new proceedings without the leave of the court both in respect of county court and High Court applications, notwithstanding the existence of a statutory power to have a litigant declared vexatious under s. 42 of the Supreme Court Act 1981."

11. Lord Woolf, M.R. recognised therein the impact of s. 42 of the 1981 Act (similar to our s. 27, Cap. 4) on the court's inherent jurisdiction. Thus, he said:-

"An order under s. 42 of the Supreme Court Act 1981 was considerably wider than the conventional Grepe v. Loam order. It was also wider that [sic] the two orders made by Neuberger J.

It was accepted that the existence of the statutory power had not supplanted the power of the court to make a limited Grepe v. Loam order and that notwithstanding the intervention of Parliament an inherent jurisdiction remained alongside the statutory jurisdiction. That did not mean that the intervention of Parliament might not have cut down the inherent jurisdiction of the court. If there was an application for an order of the same width as the statutory jurisdiction, the court could only appropriately deal with such an application under the statutory jurisdiction. The inherent power to make an order was now more restricted. The question was how much more restricted. Until a statutory order was made, if there was jurisdiction to make the existing orders, they should not at the present time be set aside because the protection which they provided was necessary and enabled any applications under the orders to be dealt with in a sensible manner."

"In relation to specific anticipated proceedings both in the jurisdiction or abroad, the court could and did grant injunctions to stay the proceedings. The ability of the court to operate in that way when the proceedings were only anticipated was no more than an example of the court being prepared to protect an applicant from anticipated damage when that damage was sufficiently imminent and serious. The court undoubtedly had the power to stay or strike out vexatious proceedings when they were commenced under its inherent power. There was no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings."

12. The learned Master of the Rolls recognised the individual's fundamental rights of access to the courts. However, he considered the extent of the inhibition of a Grepe v. Loam order should not be exaggerated because leave of the court could be given and would be forthcoming if the proceedings were arguably meritorious. Hence, he said:-

"The making of an extended Grepe v. Loam order or a Grepe v. Loam order in its usual form did involve a serious inhibition on a prospective litigant exercising his normal rights of access to the courts. However, the extent of that interference should not be exaggerated. First, it was only an inhibition for bringing proceedings without the leave of the court. If the proceedings were arguably meritorious leave would be forthcoming. Secondly, the court would not make an order unless there were serious grounds for doing so and if there were no serious grounds, the order would be capable of being set aside on appeal.

The general approach of the courts in recent years had been not to restrict the inherent jurisdiction of the court but to adopt a broad approach where that was appropriate." (underline supplied)

13. I respectively agree with all these observations. The next question is: how are these observations to be applied in the present case?

14. The Defendants have not asked the Secretary for Justice whether she will make an application for the Defendants pursuant to s. 27 of Cap. 4 in relation to this action. When I enquired Mr Clancey why the Defendants proceeded in the way they did instead of asking for a s. 27 application to be commenced, he produced 2 letters written in relation to Civil Appeal No. 90 of 1999 (that is, the earlier action):-

(a) a letter from the Defendants' solicitors to the Secretary for Justice dated 12 August 1999 asking her to commence proceedings under s. 27 of Cap. 4. This was written before the earlier action was disposed of by the Court of Final Appeal;

(b) a letter from the Secretary for Justice to the Defendants' solicitors dated 27 August 1999 indicating in short that further consideration would be given to the request after the earlier action had been disposed of by the Court of Final Appeal.

15. The Defendants should at least further enquire with the Secretary for Justice as to whether she is prepared to commence an application pursuant to s. 27 of Cap. 4. Not only did they fail to ask the Secretary for Justice to do so in this action, they have failed to do so in relation to the earlier action despite an express invitation to do so (that is, the letter dated 27 August 1999).

16. Having said so, I consider that my discretion should be exercised in the Defendants' favour. This is because:-

(a) taking into account the nature of the Plaintiff's claim in the both the earlier action and this action, as well as the Plaintiff's "reason" given at the appeal hearing for bringing this action, the 2 sets of proceedings can properly be regarded as "without any reasonable ground" and were "vexatious";

(b) in these circumstances, 2 sets of proceedings are sufficiently "habitual and persistent" to justify a prohibitive order to be made.

17. From my own experience and the experience of other judicial officers, the number of proceedings which fall within the category of "vexatious proceedings" appears to have increased quite markedly in recent years. While it is unknown if the same trend can be detected in the U.K., I find that adopting a "broad approach" in relation to such kind of proceedings is warranted in Hong Kong. This is needed to prevent the wastage of public funds (in the form of precious judicial time and expenses which should be made available to litigants of justified causes) and of expenses which opposing parties named in those proceedings may need to spend.

18. The Plaintiff argued that the 2 cases relied upon by Mr Clancey could be distinguished because there has been no trial in this action. I do not agree with this argument. First, the present action is one where there is ample reason for not wasting further resources for a "trial". Secondly, the 2 cases were also concerned with the striking out of proceedings for want of a reasonable cause of action.

19. For the above reasons, I respectfully disagree with the decision of the learned Registrar. The time for the Defendants to appeal is extended.

20. As regards the form of relief asked for by the Defendants, para. 2 of the Notice of Appeal prays for the following order:-

"2. Prohibiting any further new legal proceedings being commenced by the Plaintiff in respect of the same claim or subject matter without the leave of the Court and AND IF notice of any such application shall be given without such leave being obtained, the Defendants shall not be required to appear upon such application, and it shall be dismissed without being heard."

A similar order has been made in Grepe v. Loam: see p. 169 thereof (after referring to an order made in the earlier case of Suir v. Newton (21 May 1886)). I consider that such an order is justified in the present case. There will therefore be an order in terms of para. 2 of the Defendants' application.

21. Pursuant to R.H.C. Ord. 42 r. 5B(6), I make a costs order nisi that the costs of the Plaintiff's appeal and of the Defendants' application be paid by the Plaintiff to the Defendants to be taxed if not agreed.