SECRETARY FOR JUSTICE v. PERSONS CONDUCTING THEMSELVES IN ANY OF THE ACTS PROHIBITED UNDER PARAGRAPH 1(a), (b), (c) OR (d) OF THE INDORSEMENT OF CLAIM

CAMP 381/2023, [2024] HKCA 688

On appeal from [2023] HKCFI 2741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 381 OF 2023

(ON AN INTENDED APPEAL FROM HCA NO 855 OF 2023)

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JUDGMENT

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The Court:

Introduction

1.  This is the renewed application by Ms Chow Hang Tung (“the applicant”) for leave to appeal against the decision of Anthony Chan J (“the Judge”) dated 31 October 2023, refusing her application for a declaration that she had been a party to the action below since 23 June 2023 (“Decision”),[1] her earlier application for leave to appeal having been dismissed by the Judge on 13 December 2023. After considering all the materials, including the parties’ written submissions, we decline her request for oral hearing since her renewed application can be properly dealt with on paper pursuant to Order 59, rule 2A(5) of the Rules of the High Court (“RHC”).[2]

Procedural background

2.  On 5 June 2023, the Secretary for Justice (“the Secretary”) commenced the action below and applied for an interlocutory injunction to prohibit the 4 specified categories of criminal acts in connection with the Song “Glory to Hong Kong”. The background facts have been fully set out in this Court’s judgment dated 8 May 2024 in [2024] HKCA 442. We shall not repeat them here.

3.  On 12 June 2023, Wilson Chan J made an order for substituted service (“Substituted Service Order”), directing that:

(1)  leave to the Secretary to serve the writ, the summons for interlocutory injunction and the Substituted Service Order on “the Defendants” by way of publication online;

(2)  “anyone who opposes” the interlocutory injunction to (i) notify the Secretary within 7 days; (ii) provide specified personal particulars, including address for service; and (iii) pay reasonable photocopying charges, upon which the Secretary was to serve copies of the documents on the said person(s);

(3)  “anyone who opposes” the interlocutory injunction was to file and serve his grounds of opposition within 7 days thereafter.

(Emphasis supplied)

4.  On 21 June 2023, the applicant’s then solicitors sent to the Secretary “a Notice of Intention to Defend”, stating that they were acting for her as an “Intended Defendant”. Consequently, the Secretary effected service on the applicant on 23 June 2023. Thereafter, the Secretary, by a letter dated 27 June 2023, queried whether and how the applicant fell within the description of Defendants on the writ, stating that:

“We did not accept that [the applicant] has the necessary locus to join or participate in the proceedings as an Intended Defendant … we are liaising with you and serving papers on you solely in the interests of saving time and costs despite: (i) your client has not demonstrated how she qualifies as an Intended Defendant; and (ii) … Please take appropriate steps to rectify the situation and confirm your client’s position in these proceedings forthwith.” (emphasis added)

5.  The applicant replied on 29 June 2023 pointing out that:

(1)  the Substituted Service Order distinguished between “Defendants” on the one hand, and “Anyone who opposes” the interlocutory injunction on the other;

(2)  the applicant opposed the interlocutory injunction, but did not admit to being a “Defendant” within the description on the writ;

(3)  the earlier reference to “Intended Defendant” was to the applicant being an additional party, other than the existing defendants;

(4)  the applicant was not applying for judicial review and did not need to show locus to participate in the action.

6.  On 4 July 2023, the applicant filed her Grounds of Opposition pursuant to the Substituted Service Order, referring to herself as the “Opposing Party”. She repeated that, in opposing the interlocutory injunction, she did not admit that she was one of the Defendants as described on the writ. On the next day, her then solicitors issued a “Notice to Act for the Opposing Party”.

7.  On 10 July 2023, the Judge directed that the filing of Grounds of Opposition did not entitle the applicant to appear as a party or to make submissions at the hearing on the interlocutory injunction, but that it would be read by the Judge, given to the amici curiae, and considered on the merits. The Judge also directed that “Unless and until there is a proper joinder application, it is unnecessary to consider [the applicant’s] locus”. The hearing on the interlocutory injunction was scheduled to be held on 21 July 2023.

8.  Subsequent to the court’s direction, an Acknowledgement of Service and a 2^nd Notice to Act were filed on 14 July 2023.[3]  In the Acknowledgement of Service, the applicant was stated to be one of the persons described as Defendants on the writ, while the 2^nd Notice to Act described her as “a Defendant in these proceedings”. Her then solicitors wrote to the court on 18 July 2023 (3 days before the interlocutory injunction hearing), asserting that she had become a party within the meaning of section 2 of the High Court Ordinance (“HCO”),[4] and that she was to appear by counsel, who was to endeavour to file skeleton arguments upon obtaining the same from the Secretary and the amici curiae.

9.  On 19 July 2023, the court declined the applicant’s requests to appear by counsel and to file skeleton arguments, pointing out that it was not clear why she was a party to the action, when she had previously stated that she was not one of the Defendants described on the writ; and that the applicant was not entitled to appear as a party unless she applied to join as a party or to intervene.

10.  The interlocutory injunction hearing proceeded as scheduled on 21 July 2023. None of the Defendants appeared, nor did the applicant or her counsel. It was attended only by the Secretary’s legal representatives and by the amici curiae.

11.  By a decision dated 28 July 2023,[5] the Judge refused to grant the injunction. The Secretary appealed. While the appeal was pending, the applicant applied to the Judge for a declaration that she had been a party to the action and an additional defendant from the time she was served with the writ on 23 June 2023. As noted, the Judge dismissed her application, and later refused her leave to appeal.

The intended grounds of appeal

12.  In the first and main ground of appeal, the applicant refers to section 2 of the HCO, which provides that, unless the context otherwise requires,

“defendant (被告人) includes any person served with any writ of summons or process, or served with notice of, or entitled to attend, any proceedings;”

“party (一方、方) includes every person served with notice of or attending any proceeding, although not named on the record;”

She argues that by reason of section 2, she has since 23 June 2023 been a party to the proceedings below, although not named on the record, and an additional defendant, other than the Defendants named in the writ. It is also argued that the Judge should have regard to the context, namely, the Secretary was seeking a contra mundum injunction in aid of criminal law that would apply to everyone in Hong Kong. The applicant further complains the Judge failed to distinguish between a party and an additional defendant and the Defendants as described in the writ and misapplied the workability test in Lisbeth Enterprises Ltd v Mandy Luk (2006) 9 HKCFAR 131 when holding that the definitions of “party” and “defendant” in section 2 do not apply.

13.  The applicant also advances other grounds which, in summary, contend that:

(1)  the Judge’s conclusion that she is not a party is irreconcilable with the Substituted Service Order, rendering it an exercise in futility;

(2)  it is in the interest of justice to allow opposing arguments to be made by the applicant, as it is unlikely that anyone would come forward as a defendant to oppose the Secretary’s application; and

(3)  the Judge’s conclusion that she is not a party is irreconcilable with the costs orders he made against her without complying with Order 62, rule 6A of the RHC.

Discussion

14.  It is trite that a plaintiff is the initiating party of an action, and can choose who to sue: Ng Chiu Wing v Yip Hoi Ching, unrep., CACV 362/2008, 29 June 2009, at [15]. He usually does so by identifying the defendant by name, or in appropriate cases by description: Wolverhampton City Council v London Gypsies & Travellers [2023] UKSC 47. The defendant is a party to the action, and the plaintiff is required under the rules to effect service on him. Any other party may, by application, be joined or intervene in the action under Order 15 of the RHC. The court has a discretion in deciding whether such other party may be joined or intervene.

15.  In the present case, the Secretary sued the Defendants identified by description by reference to 4 categories of acts set out in the indorsement of claim. The applicant does not admit that she is one of the Defendants named and described in the writ of summons. She has also made it clear that she did not and does not intend to commit any of the 4 categories of acts. Plainly, the applicant is not one of the Defendants named and sued by the Secretary. She has also not applied to be joined as a defendant to the proceedings or to otherwise intervene in the proceedings under Order 15 of the RHC.

16.  For present purposes, the core issue is whether it is reasonably arguable that the applicant is correct in contending that by reason of section 2 of the HCO, she has since 23 June 2023 been a party to the proceedings below, although not named on the record, and an additional defendant, other than the Defendants named in the writ. The applicant’s contention is put on the basis that: (1) she was served with the writ on 23 June 2023; and (2) she acknowledged service of the writ and gave notice of intention to defend on 14 July 2023.

17.  In our view, the applicant’s contention is not reasonably arguable.

18.  First, the service of the writ on her on 23 June 2023 has to be viewed against its background in which it was effected. It was preceded by a “Notice of Intention to Defend” that the applicant’s then solicitors faxed to the Secretary on 21 June 2023, in which the applicant was referred to as an “Intended Defendant” who intends to defend in the proceedings. The Notice prompted the Secretary’s letter of the same date which (a) sought confirmation that an Acknowledgement of Service had been filed and, if so, a copy of it; and (b) enclosed by way of service the writ.

19.  It is thus apparent that the Secretary served the writ in the belief and on the basis that the applicant, as stated in the Notice of Intention to Defend, was a person within the description of the Defendants named in the proceedings and who intended to contest the proceedings. This is further demonstrated by the correspondence between the applicant’s then solicitors and the Secretary subsequent to the service of the writ. By a letter dated 26 June 2023, the applicant’s then solicitors in requesting for further documents and again referred to the applicant as the “Intended Defendant”. In response by way of a letter dated 27 July 2023, the Secretary queried how the applicant fell within the description of Defendants in the writ, and whether she was an intended defendant as stated in her solicitors’ letter, for the purpose of joining or participating in the proceedings.

20.  It was only in the reply letter dated 29 June 2023 that the applicant’s then solicitors stated that the applicant did not admit to being one of the Defendants as named and described in the writ, and further explained that the previous reference to “Intended Defendant” was to the applicant’s status as an additional party other than the existing Defendants in the proceedings. In the Grounds of Opposition dated 4 July 2023, the applicant specifically reiterated her position of not admitting to being one of the Defendants described in the writ.

21.  In these circumstances, given that the writ was served on the applicant as one of the Defendants named and described in the writ, the applicant’s reliance on it as bringing herself within the meaning of “party” under section 2 of the HCO (i.e. “any person served with notice of … any proceedings, although not named on the record”) or the meaning of “defendant” under the same section (i.e. “any person served with any writ of summons or process, or served with notice of, … , any proceedings”) is misplaced.

22.  Second, the Acknowledgement of Service filed on 14 July 2023 did not name the applicant, but stated that service was being acknowledged by or on behalf of “one of the Persons conducting themselves in any of the acts prohibited under paragraph 1(a), (b), (c) or (d) of the Indorsement of Claim”. The applicant explained that this was so that the defendant indicated in the Acknowledgement of Service tallied with the defendant named in the writ.[6] This, however, does not detract from the fact that the Acknowledgement of Service was purported to be filed by or on behalf of one of the Defendants named in the writ. It also follows that the notice of intention to defend given in the Acknowledgement of Service was purported to be made by one of the Defendants named in the writ. It is also relevant to note that in the Notice to Act filed together with the Acknowledgement of Service, the applicant was simply described as “a Defendant in these proceedings”.

23.  The Acknowledgement of Service and the giving of notice of intention to defend on 14 July 2023 therefore do not advance the applicant’s case that she is a party to the proceedings below although not named on the record, and is an additional defendant other than the Defendants named in the writ, by reason of section 2 of the HCO.

24.  Third, the fact that contra mundum injunctive relief is sought in aid of criminal law does not assist the applicant, as non-parties who may be affected may apply to join or intervene under Order 15 of the RHC, or may later apply to vary or discharge the injunction if it was granted: see Wolverhampton City Council v London Gypsies & Travellers, supra.

25.  Since the contention that the applicant is a party to the proceedings below or an additional defendant by reason of section 2 of the HCO is not made out, there is nothing in the complaint that the Judge failed to distinguish between the Defendants named and described in the writ and a party to the proceedings and an additional defendant. Nor is it necessary to deal with the submission that the Judge misapplied the workability test in Lisbeth Enterprises Ltd v Mandy Luk, supra when holding that the definitions of “party” and “defendant” under section 2 of the HCO does not apply.

26.  Turning next to the other grounds of appeal, we do not consider it reasonably arguable that the rejection of the contention that the applicant is a party or an additional defendant is irreconcilable with the Substituted Service Order. While the Substituted Service Order enables anyone who opposes the injunction to be served with copies of the documents upon payment of reasonable charges and to put in grounds of opposition, the Order does not in terms make a person who opposes the injunction a party by providing an address for service of documents or by filing grounds of opposition. As the Judge held, it is in the nature of a case management direction. It does not have the effect of overriding or dispensing with the procedural requirement that a person who is not made a party to the action may not take part in the action without applying to be joined or for leave to intervene. The effect of the Substituted Service Order is to enable anyone opposing the injunction to come forward and state the grounds of opposition so that the court can consider and give directions on whether such persons may take part in the application and the manner and extent to which they may do so, whether as an additional defendant, an intervener or only to providing submissions: see University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd [2016] 1 HKLRD 536. In fact, the Judge had directed that the applicant should apply for joinder under Order 15 of the RHC if she were to take part in the injunction application. The applicant however did not apply.

27.  As to the argument based on a lack of opposition to the Secretary’s injunction application, it is untenable given that the applicant did not apply to join or intervene despite the Judge’s direction to do so. In any event, the applicant had filed her grounds of opposition, which was read by the Judge and provided to the amici curiae, with direction that points of merits in her grounds would be considered by the court.

28.  Finally, on the argument that the costs order against the applicant, which was made without complying with Order 62, rule 6A of the RHC, is irreconcilable with the conclusion that she is not a party, it is unarguable. The applicant is clearly a party to the summons applying for a declaration as it was issued by her. As such, Order 62, rule 6A is not engaged, and the Judge’s costs order was properly made against her.

29.  Relying on section 14AA(4)(b) of the Ordinance, the applicant submits that there are other reasons why in the interests of justice her appeal should be heard. She points out that there was no apparent reference by the Judge to her Grounds of Objection in the decision refusing to grant the injunction, which gave rise to a risk of injustice not just to her but to all who are subject to the injunction sought. The applicant however did not set out how her arguments went beyond those that were put forward by the amici curiae.

30.  Lastly, the applicant argues that the Secretary had not been required to state his case fully in a statement of claim, and that the indorsement of claim and the injunction sought did not precisely identify the criminal offences alleged to have been committed through the categories of acts. She further makes reference to the chilling effect of the injunction sought. However, her present application only turns on the procedural issue of whether she has been, or how she might become, a party to the action. We do not see that how it could be said that the Judge erred on this issue.

Dispositions

31.  For the reasons above, there is no reasonable prospect in the applicant’s appeal and no other reason why it should be heard in the interests of justice. Her application is therefore dismissed. As we find the applicant’s application totally without merit, we order under Order 59, rule 2A(8) that no party may request the matter be reconsidered at an oral hearing inter partes.

32.  Costs should follow the event. Notwithstanding our view that the intended appeal is without merits, we do not consider the application calls for an award of costs on indemnity basis. We order that the applicant pays the Secretary the costs of the application to be summarily assessed. We have considered the Secretary’s statement of costs. Taking a broad brush approach, we summarily assess the Secretary’s costs at HK$100,000.