CHAN CHI LOI v. CHENG FOR AND OTHERS

HCA 540/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 540 OF 2006

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J U D G M E N T

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1.  This is an appeal by the Plaintiff against the order of Master J Wong made on the 7^th July 2006 whereby the Re-Amended Statement of Claim was struck out as against the 2^nd and 3^rd Defendants (“the Defendants”); this action against the Defendants was dismissed; and the costs of this action together with the costs of the strike out application be paid by the Plaintiff.

2.  This action was struck out as aforesaid on the ground that it sought to re-litigate the same dispute between the same parties as that determined by this court in HCA 22136 of 1998 (“the Previous Action”).  In my view, this is a plain and obvious case of abuse of process.  As I am entitled so to do (see Hong Kong Civil Procedure 2006, vol.1, p.840, para.58/1/2), I respectfully adopt the reasons of the Master set out in his Judgement handed down on 31^st July 2006. 

3.  In addition, I should point out that in paragraphs 14 and 21 of the Plaintiff’s Submissions attached to his affirmation dated 17^th July 2006 it is admitted that this action seeks to re-litigate the same subject matters as those of the Previous Action. 

4.  Further, the Plaintiff complains that the resolution of the Previous Action is inconsistent with Article 38 of the Basic Law, which provides that “Hong Kong residents shall enjoy the other rights and freedoms safeguarded by the laws of the [HKSAR]”.  I am simply unable to see how the conclusion of the Previous Action according to the due process of the law can be said to be an infringement of the Plaintiff’s rights under Article 38.

5.  For these reasons, this appeal is dismissed with costs to the Defendants.  I assess such costs to be in the sum of HK$24,000.00.