福廣証券有限公司前交易董事易明結 v. 証券及期貨事務監察委員會

HCA1106/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1106 OF 2007

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D E C I S I O N

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The application

1. This is the defendant’s application for striking out the plaintiff’s statement of claim and dismissing the action and for a restricted proceedings order (“RPO”) and a restricted application order (“RAO”).

Background

2. The plaintiff previously owned and controlled Foreground Securities Company Limited (“Foreground”), a member of the Stock Exchange of Hong Kong.  He was registered as Foreground’s sole accredited dealer and dealing director.  Foreground was ordered to be wound up on 17 May 1999.

3. On 25 January 1999, the defendant revoked Foreground’s registration as a dealer under the then Securities Ordinance.  The plaintiff’s registration as a dealer was automatically revoked as well.  Their subsequent appeals to the Securities and Futures Appeals Panel were dismissed in December 2000.  On 27 July 2001, the Appeals Panel refused their applications for leave to appeal on point of law to the Court of Appeal.

4. On 28 December 2004, the plaintiff commenced HCA2966/2004 against the defendant, seeking restoration of his dealer’s registration and damages of HK$2,299,200 per annum.

5. On 22 July 2005, upon the defendant’s application, Deputy Judge To struck out the statement of claim and dismissed HCA2966/2004 on the ground that the plaintiff had no reasonable cause of action.  On 18 May 2006, the Court of Appeal dismissed the plaintiff’s appeal in CACV252/2005.  The plaintiff then applied for leave to appeal the Court of Final Appeal, which application was refused by the Court of Appeal on 29 September 2006.  Undeterred, the plaintiff applied to the Appeal Committee of the Court of Final Appeal in FAMV37/2006 for leave to appeal to the Court of Final Appeal.  Leave was refused on 13 February 2007.

6. On 19 April 2006, the plaintiff commenced HCA861/2006, seeking an order that the defendant do pay him the amount of the taxed costs that he was liable to pay to the defendant under HCA2966/2004.  Not surprisingly, Registrar Chan upon the defendant’s application stuck out the claim and dismissed the action on 27 June 2006.  The plaintiff’s appeal was dismissed with costs by me on 12 September 2006.  The plaintiff’s further appeal to the Court of Appeal out of time in HCMP190/2007 against my decision was dismissed with costs on 13 February 2007.

Striking out

7. Then on 28 May 2007, the plaintiff commenced the present action.  The basis of his present claim is not entirely clear.  It seems that the plaintiff is alleging that the defendant had acted in breach of “trust” for having caused HCA2966/2004 to be struck out without a proper trial.  He also refers to the “public redress mechanism” in the defendant’s website.  He claims for compensation of about HK$2,299,200 per annum, the same amount claimed in HCA2966/2004.

8. Having carefully considered the statement of claim, his affidavits filed so far and his brief oral submissions, I am of the view that the plaintiff is in effect trying to re-litigate matters that had already been finally and conclusively determined against him in HCA2966/2004 and HCA861/2006 and the ensuing appeals.  He has no cause of action whatsoever.  His claim is plainly vexatious and an abuse of the court’s process.

9. That being the case, I will strike out the statement of claim and dismiss the action.

RPO and RAO

10. In Ng Yat Chi v. Max Share Ltd & Another (2005) 8 HKCFAR 1, the Court of Final Appeal confirmed the courts’ inherent jurisdiction to make RPOs and RAOs.

11. In brief, a RPO should only be made if the person to be subjected to the order has abused, and is likely to continue abusing, the court’s process by seeking persistently to re-litigate in fresh proceedings, without viable legal grounds, matters which have already been determined by the court, in circumstances where an RPO would be a proportionate response.

12. In the present case, I am satisfied that making an RPO is a proportionate and indeed the necessary response to prevent the plaintiff from abusing the court’s process any further by re-litigating the matters which had been determined by him previously.  I have no doubt that if not so restricted, he will continue to bring fresh proceedings to re-litigate those matters notwithstanding the dismissal of the present action.  He must be stopped.

13. For these reasons, I will make a RPO in terms of the plaintiff’s summons dated 25 June 2006.

14. In light of my decision on the striking out application, it is no longer necessary to make a RAO.  Accordingly, I will not make any order on that application.

Costs

15. Finally, costs should follow the event.  Since the plaintiff has abused the process, it is only right to order him to pay costs of the action including those for the striking out application and the RPO application on an indemnity basis.  Upon Mr Hickin’s application, I will make a gross sum order in lieu of taxation.  As to quantum, I have duly considered the skeleton bill submitted by Mr Hickin.  I do not propose to dwell on the details.  Having regard to all the circumstances and relying on my past experience as a taxing master, I am of the view that a figure of HK$200,000 is reasonable and appropriate.  I hence order the plaintiff to pay the defendant such costs assessed at HK$200,000 forthwith.