WONG YU CHO ROLLY t/a MARCO POLO and CHINA OVERSEA TECHNICAL DEVELOPMENT v. LOUIE WONG AND ANOTHER

DCCJ 2805/ 2007, DCCJ 2806/ 2007 & DCCJ 2930/ 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2805 OF 2007

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

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

REASONS FOR DECISION

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

Introduction

1.  On 24 December 2007, I handed down my reasons for decision to strike out Mr Wong’s claims under these actions for disclosing no reasonable cause of action, or as being frivolous and vexatious.  This is the hearing of Mr Wong’s applications for leave to appeal against those Orders.

2.  The background leading to these three actions and my reasons for striking out Mr Wong’s respective claims have been set out in my earlier reasons for decision, and I do not propose to repeat them here.  For convenience, I would also adopt herein the abbreviations used in the previous reasons for decision.

Applicable principle

3.  In considering whether to allow leave to appeal to the Court of Appeal, Mr Wong needs to satisfy the Court that the intended appeal has a realistic prospect of success, in the sense that he has at least an arguable case in the intended appeal:  Ma Bik Yung v. Ko Chuen (unrep., HCMP4303 of 1999, 8 September 1999) per Leong CJHC at paragraph 5, in adopting and approving Smith v. Cosworth Casting Processes Ltd [1997] 1 WLR 1538.

The present applications

Mr Wong’s proposed grounds of appeal

4.  As set out at paragraphs 21 to 33 of my earlier reasons for decisions, the central basis of my ruling that Mr Wong’s claims disclose no reasonable cause of action are that:

(1)  There is no legal foundation to support an arguable claim that Mr Louie Wong, the government counsel acting for the respective judges under DCCJ 3884/2006 and DCCJ 3915/2006, owed any alleged duty to Mr Wong to advise and correct him of his “mistake” in bringing those negligence claims against the judges; and

(2)  There is no arguable case that Ms May Ip (the law clerk of the Department of Justice) had committed any legally recognised wrongs against Mr Wong, by issuing a letter to him to seek costs against him under those two actions after he had discontinued them.  She was only taking procedural steps required under the rules of the Court.

5.  Today, Mr Wong submits that my earlier decision in striking out his claims is wrong for the following three reasons:

(1) I was wrong to follow and adopt the authority of Business Computers International Ltd v Registrar of Companies [1988] Ch 229 at paragraphs 21-25 of my earlier reasons for decision.  This is so because, according to Mr Wong, this authority only concerns with commercial litigations, while his claims against Mr Louie Wong were related to Mr Louie Wong acting in the capacity of a government lawyer, discharging public functions and duty.

(2) As a layman, he had only committed a “minor” and “naïve” mistake in bringing the earlier claims against the judges.  He should only be liable for the costs incurred in those actions at the early stage but not for those further incurred by reason of Mr Louie Wong’s alleged misleading acts.

(3) The Court should have told and warned him at the last hearing of the present striking out applications, that he might have to incur further costs in pursuing the matters.

Discussion

6.  I am not satisfied that Mr Wong’s proposed grounds of appeal show any realistic prospect of success.  My reasons are as follows.

7.  In relation to his first ground, there is simply no authority to support his submissions that the principle laid down by Scott J in Business Computer is only limited to commercial litigation scenarios.  Further, there is no authority to show that government lawyers acting as legal representatives for their clients in civil claims brought by private individuals should somehow owe a higher duty to the other side. 

8.  Ng Ka Chuk v Welcome Construction Co Ltd (unrep., DCPI 865/2007, Deputy District Judge A Yuen, 16 August 2007); Allied Group Ltd & Another v. The Secretary for Justice (unrep., CACV 1/2003, Rogers VP, Le Pichon and Cheung JJA, 10 October 2003); Pang Ping Sum v. Enpack (Hong Kong) Ltd (unrep., HCMP 290/2003, Suffiad J, 20 October 2005), are the authorities relied on by Mr Wong.   None of these cases support Mr Wong’s submissions above.

9.  I therefore do not accept that this constitutes a ground of appeal that has a realistic prospect of success.

10.  The second ground is simply a repeat of Mr Wong’s case against Mr Louie Wong.  This is the flip side of saying that Mr Wong had a duty to advise and correct him of his “mistake” in continuing the claims against the judges.  For the same reasons set out above, this purported ground also in my view does not provide Mr Wong any realistic prospect of success in his intended appeal.

11.  The third ground is simply irrelevant to whether my earlier reasons for decision are correct or not.  Further, the function of the Court is to fairly and independently adjudicate disputes that come before it.  It has no duty to “advise” Mr Wong on what he now alleges the Court should have done.  This proposed ground of appeal has no merits at all.

Conclusion

12.  For the above reasons, I dismiss Mr Wong’s applications for leave to appeal.

13.  I further make an order nisi that costs of these applications be to the Defendants to be taxed if not agreed.  This order would be made absolute 14 days after today unless either party applies in writing to vary it.