BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE

HCSA 30/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 30 OF 2008

(ON APPEAL FROM SCTC 64525 OF 2002)

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J U D G M E N T

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1.  This is an application by Mr Brian Alfred Hall for leave to appeal on points of law from the decision of Mr Wong Lai Wing, Deputy Adjudicator in the Small Claim Tribunal.  The cause of action of Mr Hall is for damages arising from various torts alleged to have been committed by some prison officers on 21 and 22 January 2000 in the Shek Pik Prison.  In a nutshell, he alleged that he was beaten up or otherwise assaulted and battered by them, and he therefore claimed an amount of HK$48,000 being “damages due to injuries, pains and sufferings”. 

2.  The learned deputy adjudicator delivered his decision in a 26-page Reasons for Decision and has dealt with all the allegations and evidence at length.  He came to the conclusion that he disbelieved Mr Hall and believed certain prison officers and he gave his reasons therefor.  

3.  It is trite law, known to all lawyers, that in an application to appeal against a Small Claim Tribunal decision, an applicant must apply ex parte to the High Court on a point of law only.  The law is made by the legislative council.  This of course is made for good reasons.  In any event the applicant must state the points of law he is relying on and must point out that he has an arguable case on a point of law on which the tribunal adjudicator erred. 

4.  In his 10-pages Notice of Appeal, some of the points of Mr Hall concerned with certain points of law.  However all these points were premised on his own allegation, which is contrary to the finding of facts of the learned adjudicator.  In sum, he is trying to present another set of facts according to his original allegation.  These facts, or these alleged facts, have to be established before such a point of law could arise.  Thus it is not a case that an applicant could just state certain points of law in his Notice of Appeal and then the appeal court must give him leave to appeal.  It does not operate in that way.

5.  Putting it in another way, Mr Hall must succeed in persuading me why the finding of facts would have to be changed according to his own allegations, otherwise those points of law would not arise.  I just give one example on these long allegations.  First of all, he says in page 1 and page 2 :

“(1.3)  Assault is a disciplinary offence pursuant to (PR) Prison Rule 61(F), as well as, a criminal offence pursuant to section 40 of the Offences Against the Person Ordinance, Cap.212, Laws of Hong Kong, but:-

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(1.7 ) Also, I was neither prosecuted, nor was proven guilty of  the charged assault, pursuant to section 40 of the Offences Against the Person Ordinance, Cap.212, Laws of Hong Kong, thus this Tribunal findings is a violation of Article 11(i) of the Bills of Right Ordinance.”

6.  Apparently, on the face of it, the points of law concerned with section 40 of the Offences Against the Person Ordinance, Prison Rule 61(F), and Article 11(i) of the Bills of Right Ordinance.  But these points premised on the basic facts, and that is whether it is necessary, as a matter of law, that Mr Hall must be proved guilty of the charge of assault in order that the Small Claim Tribunal can make a finding against him.  This is the confusion Mr Hall has raised, trying to muddle the clear stream of justice.  

7.  To my mind, the simple fact is the one who alleges has the burden of proof.  Mr Hall alleged that certain prison officers had assaulted and battered him, it does not mean that the learned adjudicator, before he made a finding according to evidence before him, that in fact Mr Hall was the instigator, the one who initiated the violence, who attracted the prison officer to subdue him, and in due course he had assaulted certain prison officers.  The tribunal adjudicator would have to require the criminal conviction of Mr Hall in terms of assaulting prison officers. 

8.  That is not the case, that is not how a civil court operates.  The procedure in the civil court is very simple.  If Mr Hall makes that allegation, he has to prove that he was the one who was assaulted and battered, and the tribunal adjudicator made a finding that “No, he was not assaulted or battered, he was subdued because he instigated the violence.”  A conviction of Mr Hall is entirely unnecessary in a civil court.

9.  To put it in other way, otherwise, if Mr Hall was acquitted of the assault because the prosecution cannot prove beyond reasonable doubt that he had assaulted certain prison officers, it does not mean he could succeed in the Small Claim Tribunal that he has been assaulted by the prison officers.  Instead, these are two very different issues.  I hope he would understand that he alleged that he was being assaulted and battered, he would have to prove on a balance of probability only that he was so assaulted and battered.  If he cannot prove that, and in fact the tribunal officer made a finding according to the evidence before him that he was the one who instigated the violence, then he loses his case. 

10.  In fact the tribunal adjudicator did not need to make a finding that he was the one who instigated the violence, a finding that he had not been assaulted or battered would be good enough.  But evidence was presented by both sides but he accepted the prison officers’ version. 

11.  According the law, the appeal court would not interfere with the finding of the tribunal below, unless it became a point of law, say, in extreme case no reasonable tribunal would have come to that conclusion as he did.  But that is not the case before me and that is not the way Mr Hall presented his case in his lengthy Notice of Appeal.

12.  For that reason, I have to dismiss the application for leave to appeal on points of law on the ground that no arguable points of law have been shown by the applicant.  Since this is an ex parte application of Mr Hall, I make no order of costs against him.

13.   This is not the end of the matter.  Last time I caused a letter to be written to the Department of Justice with a copy to be given to Mr Hall that I had reason to believe Mr Hall is a vexatious litigant according to the provision in the High Court Ordinance, and I had requested the Department of Justice to take certain action.  In fact I was then told by the Department of Justice that Mr Hall, in the past six years in Hong Kong, had instituted 105 sets of proceedings before the Small Claims Tribunal and the Court of First Instance on different matrixes of facts.  

14.  Accordingly I must consider, pursuant to the Practice Direction 11.3, to make two orders, that is :

(1)  Restricted Applications Order (“RAO”); and

(2)  Restricted Proceedings Order (“RPO”).

And according to the Practice Direction, I must hear Mr Hall first.

[Submissions of Mr Hall]

15.  This is my ruling in respect of the proposed RAO and RPO.  Firstly, Mr Hall submitted that I should recluse myself on the ground that there is a potential bias on my part, I am the first judge refer the matter to the Department of Justice to consider whether an application should be made to the High Court to adjudge Mr Hall as a vexatious litigant. 

16.  Vexatious or not, it is now clear to me that Mr Hall had instituted a number of actions in Hong Kong and, according to the Department of Justice, 105 sets of proceedings before the Small Claims Tribunal and the High Court.  Some of them were dismissed.  In this very appeal his original claim was dismissed and his appeal for leave to appeal on point of law is also dismissed. 

17.  Mr Hall raised his usual contention that it is against his human right to disallow him to institute proceedings.  There is a misunderstanding here.  RAO and RPO do not mean that the proposed litigant carrying such two orders would not be allowed to institute proceedings at all.  It only means that from now on if such an order is made, say, RAO, then he cannot make application within the case; RPO means he cannot institute a new set of proceedings without the leave of a designated judge.  In other words, it is not a shut-off situation, it is a procedure as stipulated by the Chief Justice according to the case of Ng Yat Chee v. Max Share Limited & Another (FACV No.5 of 2004) in the Court of Final Appeal, decided on 20 January 2005.  

18.  The rationale of these two orders was to stop litigants, in particular litigants in person who have in the past instituted a number of actions for no good cause, and the defendant being sued by him has been unduly troubled by these multiplicity of actions. 

19.  Mr Hall mentioned that the justice required that he should be allowed this kind of human rights.  But justice has two sides.  We do justice not only for plaintiffs, we all have to do justice for defendants.  If a defendant is unduly troubled by a vexatious litigant, the court should have jurisdiction to stop it.  The way to stop it as stipulated by the Chief Justice is to issue this Practice Direction 11.3, so that all judges in Hong Kong can follow such a practice.  From the past history of Mr Hall, I have reason to believe that he would continue with such conduct unless restrained by this court, by RAO and RPO.

20.  Accordingly, I made an RAO and RPO against him and I have already told him the effect.  My clerk, unfortunately, has to bear the burden of drafting the detailed orders for him since Mr Hall is a litigant in person and the same will be approved by me and sealed by the High Court and served on Mr Hall.  But from this moment onward, Mr Hall would not be allowed to make any application in any case without the leave of this court.  He will not be allowed to institute any new sets of proceedings against anyone without the leave of this court.  When I say without the leave of this court, it goes without saying that in effect I will be the designated judge in the order and in my absence the Chief Judge of the High Court would name another judge to take my place.  And I so order.