PARK YOUNG SOOK v. CHU DEAN YUAN FRANKLIN

HCA 2353/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2353 OF 2009

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D E C I S I O N

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Introduction

1.  This is the Defendant’s application pursuant to Order 18, rule 19 of the Rules of the High Court and the inherent jurisdiction of the Court to strike out the Plaintiff’s writ of summons and statement of claim on the ground that they fail to disclose any reasonable cause of action, or are frivolous or vexatious or may prejudice, embarrass or delay the fair trial of the action and otherwise constitute an abuse of the process of the Court.  At the hearing, Mr Mok, on behalf of the Defendant, is content to proceed solely on the ground of an abuse of the process of the Court by virtue of the fact that the allegations pleaded by the Plaintiff were clearly part of the subject matter of the ancillary relief proceeding between the Plaintiff and Defendant in Matrimonial Causes No 7365 of 2007 (“FCMC 7365/2007”), which could have been and should have been raised in that proceeding.

The factual background

2.  The Plaintiff was the ex-wife of the Defendant.  They were married on 30 July 1988 and have one child born on 28 January 1996.  The Plaintiff is a Korean national who has lived in Hong Kong for about 30 years.  She used to work as a cabin crew for Cathay Pacific Airways Limited and has been running a business through Christine Lifestyles Limited.  The Defendant is a Chinese by birth and an American lawyer by profession.  He retired from private practice in March 2005 and is currently a co-chief executive officer of a company.

3.  After nineteen years of marriage, the Defendant commenced divorce proceedings in FCMC 7365/2007 against the Plaintiff on 20 June 2007 based on unreasonable behaviour.  A decree nisi was granted on 20 May 2008.  The trial to determine the final ancillary relief was heard on 2 and 3 February 2009 in the absence of the Plaintiff who made a conscious decision not to participate in the hearing.  On 6 March 2009, Her Honour Judge Melloy of the Family Court delivered judgment on the final ancillary relief.  As Judge Melloy described, the proceedings turned out to be very litigious involving very emotive issues set against a backdrop of a deeply unhappy marriage. 

4.  On 23 November 2009, the Plaintiff instituted the present action against the Defendant.  On 11 December 2009, the Defendant issued a summons to strike out the Plaintiff’s action.

The Plaintiff’s claim

5.  In paragraph 1 of her statement of claim, the Plaintiff pleaded that the Defendant forced a marriage on her, that the marriage was devoid of love and sex, that she had to continue her work as a cabin attendant at Cathay Pacific Airways Limited.  She also alleged that the Defendant was a disabled person suffering from lipid disorder and nervous tick.  But she did not plead any damage or make any claim arising out of those allegations.

6.  In paragraph 2 of her statement of claim, the Plaintiff pleaded a series of property transactions.  She purchased a property at 51 Barker Road (“Barker Road Property”) in 1991 using a shelf company, Sparkling Times Ltd of which she was the sole director.  The Barker Road Property was sold at a profit of $46 million which was used to purchase two units in Piccadilly Mansions (“Piccadilly Units”) in Po Shan Road.  The Piccadilly Units were then sold and the equity was used to purchase House C, No. 8 Sunshine Villa in Mt Kellett Road (“Peak House”).  The Plaintiff claimed that as a result of the profits made in those transactions, a sum of $46 million was due to her from the Defendant which had never been accounted for.  She sought by way of tracing an account of the sale proceeds of the series of property transactions dating back from the date of sale of the Barker Road Property.

7.  In paragraph 3 of her statement of claim, the Plaintiff pleaded that the Defendant caused the Peak House, which is now worth approximately $150 million to $190 million, to be sold under a court order in the ancillary relief proceeding.  She alleged that the Defendant conspired with Professor Felix Mak and the staff of Dr Desmond Fung to misrepresent her mental condition to the Family Court.  In order to bring about the sale of the Peak House, the Defendant obtained an ex parte injunction order while she was out of Hong Kong to restrain her from entering the Peak House and contacting their son.  As a result, her personal possessions and those of her company, Christine Lifestyle Limited, were lost.  She also alleged that the Defendant entered into a revolving credit facility arrangement with Chong Hing Bank Limited in his and her joint names without her knowledge and forged her signature in drawing down $12.5 million against the equity of the Peak House.

8.  In paragraphs 5 to 7 of her statement of claim, the Plaintiff claimed:

(1)     liquidated damages including loss arising from being rejected from the Peak House of up to $200 million;

(2)     special damages, being loss of her personal possessions and those of Christine Lifestyle Limited to be assessed;

(3)     an account of what money is due from the Defendant to her arising from the series of property transactions; and

(4)     interest and costs.

The ancillary relief proceeding

9.  As the Defendant is alleging that the Plaintiff’s claim formed part of the subject matter of the ancillary relief proceeding, it would be appropriate to set out in some details the ancillary relief proceeding in FCMC 7365/2007.

10.  By way of background, the Plaintiff was legally represented in that proceeding by a reputable law firm of Messrs F Zimmern & Co. until 13 October 2008 when she suddenly chose to act in person.  A month before that, on 19 September 2008, the Plaintiff and the Defendant through their solicitors obtained a consent order to sell the Peak House and a date was fixed for the trial of ancillary relief.  That trial was subsequently re-fixed for hearing on 2 and 3 February 2009 to enable the Plaintiff to apply for legal aid or otherwise arrange for legal representation.  On the morning of 2 February 2009, the Plaintiff acting in person, applied for leave to appeal against certain decisions of Judge Melloy.  The judge refused the application and proceeded to hear the trial on ancillary relief.  The Plaintiff decided not to participate in the hearing and left the courtroom.  The trial was conducted in the Plaintiff’s absence and concluded on 3 February 2009.  Judge Melloy delivered judgment on 6 March 2009.  On 24 April 2009, the decree nisi was made absolute.

11.  It will be convenient to begin with how Judge Melloy approached the issues in the trial.  At paragraph 3 of her judgment, she wrote:

“The following issues now fall to be determined by this court:

Has there been material non-disclosure of assets by the wife?

To what extent, if at all, should the wife’s conduct be taken into account when considering the issue of final ancillary relief?

How should the division of assets in 2003 be regarded? Should the consent order dated 19 September 2008 be upheld?

How should the dispute over the revolving credit facility be resolved?

What is the computation of available assets?

How should those assets be divided bearing in mind my findings above and the principles of need, compensation, sharing and the s.7 factors?

What provision, if any, should be made for A’s future education and other related costs?”

The law

12.  The legal principles applicable to striking out a claim as an abuse of the process of the court is very well settled.  Order 18, rule 19(1)(d) confers upon the court in express terms powers which the court has hitherto exercised under its inherent jurisdiction where there appears to be an abuse of the process of the court.  The term connotes that the process of the court must be used bona fide and properly and must not be abused.  The court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation: see Hong Kong Civil Procedure 2010, paragraph 18/19/11.

13.  An example of abuse of the process of the court is re-litigation or res judicata.  It may be an abuse of process to litigate matters which have, or could have, been decided in earlier proceedings.  The basic rule was stated by Wigram V.C. in the English case of Henderson v. Henderson (1843) 3 Hare 100 at 115.  Where a matter becomes the subject of adjudication, the court requires the parties to put forward their whole case and will not, except under special circumstances, permit them later to re-open matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  This rule applies, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.  The onus of proof is on the party alleging abuse.

14.  This principle was approved by the Privy Council in Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd & Anor [1975] AC581 in which Lord Kilbrandon at 590 held that: -

“But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.”

  (emphasis added) 

15.  In Johnson v. Gore Wood & Co (a firm) [2001] 2 WLR 72, the House of Lords explained the rationale behind the Henderson “abuse of process” principle as follows: -

“1. The principle is to serve public interest in that there should be finality in litigation and that a party should not be twice vexed in the same matter.

2. This is reinforced by the current emphasis on efficiency and economy on the conduct of litigation, in the interests of the parties and the public as a whole.

3. The onus is on the party alleging abuse.

4. The bringing of a claim or the raising of the defence in later proceedings may, without more, amount to abuse if the court is satisfied that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

5. It is, however, not necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty. But where those elements are present the later proceedings will be much more obviously abusive.

6.   There will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party”

Liquidated damage claim arising from being rejected from the Peak House of up to $200 million

16.  It is not entirely clear how the Plaintiff arrived at her claim for damages of $200 million under this head.  She appears to have two claims under this head.  Firstly, she claimed that she financed the purchase of the Barker Road Property from the proceeds of sale of her matrimonial home from her previous marriage.  She accepted in her pleading that the proceeds of sale of Barker Road Property were used to purchase the Piccadilly Units which in turn were sold to purchase the Peak House.  Thus, on her pleading, her equity in the Barker Road Property had been converted into the equity in the Peak House.  She alleged that the Peak House is now worth between $150 million to $190 million and had the Peak House not been sold by order of the court procured by the Defendant, she would have an equity in the Peak House of at least 50%, say between $75 million to $95 million.  Even on her own pleaded case, her loss could not have been more than half of what she is now claiming.  Furthermore, the indisputable fact is that the Peak House was sold pursuant to a court order entered into by consent on 19 September 2008 in the ancillary relief proceeding and the Plaintiff received her 50% share in the proceeds of sale of the Peak House.  Secondly, her other claim is that Judge Melloy wrongly accepted that the proceeds of sale of the Peak House should be used to repay the loan of $12.5 million under a revolving credit facility created by the Defendant in their joint names using her forged signature.

17.  Mr Mok referred me to two local decisions which have a similar factual matrix in that a spouse chose to abandon his or her claim in the divorce proceedings and instead re-litigated by bringing a subsequent civil action in the High Court.  The first one is Norman Eric Tomlin and Michele Helene Tomlin (1994) HKEC 22.  In that case, there was no dispute that ex-wife siphoned off money during the course of the marriage, saying that the money had been spent on household necessaries when it was paid into her private accounts.  The dispute was as to the amount.  Then the parties reached agreement and obtained an order by consent for payment by the ex-husband to the ex-wife of a lump sum and periodical payments for each of the two children of the marriage by way of a clean break.  Then the ex-husband commenced proceedings for conversion of money thus siphoned off by the ex-wife.  The ex-wife applied to strike out the statement of claim on the grounds that it was frivolous or vexatious or an abuse of the process of the court.  Barnett J rejected counsel’s argument that the Family Court had no jurisdiction to deal with claims for damage consequential upon the siphoning of the funds.  He held at paragraph 26:

“I reject this argument. Had this matter been raised in the course of contested ancillary relief proceedings, it would not have been difficult for the court to have investigated the extent of the Defendant’s siphoning and where the money had gone. In the event that the court was not satisfied with the Defendant’s disclosure, appropriate adverse inferences could have been drawn against her. In deciding what sum if any should be paid to the Defendant, appropriate adjustments could be made to reflect what benefits she had obtained and what losses the Plaintiff had suffered. It was uniquely part of the ancillary relief proceedings. If it had been taken out of the equation; it is difficult to see how the court could have made an order that would have properly reflected the course of the marriage and the parties’ contributions thereto. The court would have been placed in an impossible position if it had felt that a clean break was desirable and appropriate. If the Plaintiff were to be successful in this action, there would be taken back from the Defendant all that she had been given in the ancillary relief proceedings. The whole basis of the order made in those proceedings would be undermined.”

18.  The second case is Lee Ming Mang Sharon and Ng Siew Seng Richard & Others [2009] HKEC 690.  In that case, the ex-wife claimed a beneficial interest in two properties against her ex-husband.  She claimed that one property which was held in the name of a company along with the ex-husband and his brother was a gift to her in consideration of their intending marriage.  She claimed that a second property registered in the ex-husband’s name held on trust for his brother was purchased with her monetary contributions during the marriage.  Instead of pursuing her claims which had already been addressed to in her ancillary relief application, the ex-wife decided to reach a settlement with the ex-husband by withdrawing her claim in the divorce proceedings in return for which the ex-husband agreed to make a contribution to her costs.  Only a few days later, the ex-wife instituted the claim in the High Court asking for the same relief and naming her ex-husband’s brother and the company as additional defendants.  She claimed that she could not have sued the brother and the company in the divorce proceedings.  Deputy High Court Judge Carlson struck out the ex-wife’s claim and held that the Family Court was undoubtedly the appropriate court for determining the dispute where both properties arose out of the matrimonial relationship.

19.  Mr Mok submits that on the strength of these authorities, the Plaintiff’s claim should be struck out as being an abuse of the process of the Court.  The facts of these cases are not entirely the same as those of the present case in one respect.  In Norman Eric Tomlin, the ex-husband with knowledge of the siphoning abandoned his claim in the Family Court and consented to an order for payment of lump sum to be made against him.  In Lee Ming Mang Sharon, the ex-wife again with knowledge of her claim against other non-parties to the marriage in respect of matrimonial property chose not to pursue against her ex-husband and those non parties in the Family Court.  In my view, that a party chose to abandon his claim or not to make a claim at all before the Family Court in respect of family assets is no different from the case of a party whose claim had been contested and adjudicated by a court of competent jurisdiction against him.  These two cases demonstrate the importance which the law attaches to the principle that the court requires the parties to put forward their whole case in one go whenever possible by the inclusion of all the relevant issues and arguments against all the proper parties and the jealousy with which this principle is guarded so as to ensure the machinery of the court will not be used as a means of vexation and oppression in the process of litigation.  They also demonstrate that the Family Court has jurisdiction in distributing the family assets in such a way as could properly reflect the course of the marriage and the parties’ contributions thereto and that jurisdiction include jurisdiction to adjudicate on all civil disputes arising out of family assets between the parties to a marriage as well as non-parties.  The Family Court is provided with the powers and jurisdiction to arrive at the most just disposition of financial disputes between spouses over family assets.

20.  According to the Defendant, except for a sum of about $400,000 from the Plaintiff’s retirement funds from Cathay Pacific Airways Limited, the deposit and mortgage payment of the Barker Road Property were all paid by him.  The purchase was also partly financed by the sale of four of the units, thereby reducing the net purchase price of the two units occupied by the parties to $17.5 million.  The Barker Road Property was sold in December 1996 for $57.8 million with a net proceeds of approximately $45 million.  The Plaintiff said that the net profit was $46 million.  After paying the down payment of $12.8 million for the Piccadilly Units and incurring about $8 million in incidental purchasing and renovation expenses, the balance of $24 million was deposited in the family’s investment accounts.  The funds in the investment accounts were then divided equally between the parties in the late summer of 2003 to 2004.  The Defendant’s account was accepted by Judge Melloy in the ancillary relief proceeding.

21.  The events starting from the application for the consent order for the sale of the Peak House through to the completion of its sale were described by Judge Melloy in paragraphs 4 to 13 of her judgment.  On 19 September 2008, the parties sought a consent order from the Family Court to sell the Peak House.  Judge Melloy ordered the Peak House to be sold by way of public auction or private tender at a minimum price of $90 million with a 10% price adjustment unless otherwise agreed by the parties.  She further ordered that the proceeds of sale after deducting certain payments be split between the Plaintiff and Defendant on a 45% : 45% basis with 10% to be held in court pending the final determination of ancillary relief proceeding on costs.  However, since the consent order had been entered into, the economic situation deteriorated worldwide and the top end luxury housing market in Hong Kong was particularly hard hit.  The parties’ joint property valuer, namely DTZ, valued the Peak House at $60 million as at 18 November 2008.  On or about 15 December 2008, the Defendant obtained an offer to purchase the Peak House for $56 million with a deadline for accepting the offer on 20 December 2008.  DTZ also confirmed that the valuation of the Peak House had fallen by a further $4 million as at 10 December 2008.  The Plaintiff reneged her consent to sell the Peak House.  The Defendant returned to court to seek further directions.  Judge Melloy ordered that the Defendant be authorised to act on behalf of the Plaintiff to complete the sale and for that purpose to execute the necessary documents.  The Plaintiff refused to move out of the Peak House.  The Defendant had to apply for a Writ of Possession to evict the Plaintiff from the Peak House on 23 March 2009 to facilitate the completion.  Eventually, the sale was completed.  The Plaintiff and Defendant each received $12.5 million from the net proceeds of sale according to the formula approved by the judge.  Then Judge Melloy assessed that there was family asset of $61.5 million to be divided between the Plaintiff and Defendant.  Thus, notionally each side was to hold $30.75 million.  As the Plaintiff had already had at her disposal $26 million and after allowing for each side’s contribution of $2 million towards their son’s education, Judge Melloy ordered the Defendant to transfer $2.75 million to the Plaintiff in full and final settlement of her claims for ancillary relief.

22.  Thus, on her pleading, whatever profits she had made from the Barker Road Property including the $46 million she alleged and whatever contribution she had made in the course of her nineteen years’ marriage had been turned into the equity in the Peak House which was sold under a consent order entered into between the Plaintiff and the Defendant and approved by the court.  The Plaintiff could have no complaint for the sale of the Peak House, which was sold pursuant to a consent order to which she was privy.  On the facts, she had received her share of the net proceeds of sale of the Peak House.

23.  In answer to the Defendant’s argument that her claim, even if she has any, has been time barred, the Plaintiff argues that the Defendant concealed from her the fact that he had misappropriated the profits she made from the property transactions.  However, quite apart from her own pleading that the profit from the sale of the Barker Road Property was invested in the Piccadilly Units and then in the Peak House, the Plaintiff should have known how the purchases of those very valuable properties were financed and would not have waited all these years to bring an action for the $46 million unaccounted profit.  It does not lie in her mouth to say that she had to wait till the ancillary relief proceeding to be told about the secret profit made and kept by the Defendant.

24.  The Plaintiff argued in her 1^st Affidavit filed on 27 January 2010 for the purpose of objecting to the Defendant’s application that the Defendant had failed to provide documentary proof of the his contribution and the source of funds to the purchase price of Barker Road Property and how the proceeds of sale of the Barker Road Property were applied as requested by her questionnaire raised in the ancillary relief proceeding.  The Defendant’s answer in reply to the questionnaire was that he could not produce such documentary proof through lapse of time of twelve to sixteen years.  The Plaintiff also criticised the Defendant for not answering her question as to how the Defendant “paid for 100% of the mortgage of the Piccadilly Units” by replying that he paid “from the sale of those units” as incredible.  I can see nothing wrong with such an answer.  It is not unusual for outstanding mortgage on a property being sold to be discharged from the proceeds of sale.  If the Plaintiff was not satisfied with the answers given by the Defendant, she should have requested for further discovery or should have participated in the trial to contest the Defendant’s evidence.  She did not. 

25.  In the ancillary relief proceeding, the parties filed Form E’s, questionnaires and answers disclosing the contributions made by each of the parties towards the welfare of the family.  The parties’ cases as regards their contributions towards the purchase of the properties were fully placed before the Family Court.  Judge Melloy had the benefit of reviewing all the evidence.  She was fully aware of the parties’ case.  She assessed the evidence and reached her conclusion.  In paragraph 34 of her judgment, she said that it seemed to her that the Plaintiff failed to make full and frank disclosure of her means.  That was something which the judge could and should quite properly take into account when dividing the parties’ assets.  At paragraph 81 of her judgment, the judge held:

“This is a hotly disputed area in that the husband denies categorically that the wife contributed either in terms of her financial contribution or in terms of a wider contribution to the welfare of the family. In fact the husband says that the wife’s actions were positively detrimental both to his career and to A’s upbringing. The wife maintains in her Form E’s and in the other affidavits filed that she made an exceptional contribution financially as it was her business acumen that led to the parties buying the real estate that they did. She maintains that she bought the properties and did them up and that it was through her that they made an exceptional profit. This is denied by the husband. He has been able to produce evidence to show that it was he and not the wife who paid for the initial deposits on the properties. As the wife was not working for much of the time it is hard to fathom how the wife was wholly responsible for making the purchases in any event. Clearly it was through the husband that the mortgage repayments were met. All in all, as with a lot of this case, the wife’s story lacks conviction. Clearly though she put a lot of time and effort into Christine Lifestyles Ltd, although even on her own case it never made any money. She was also away from home a great deal and travelled to Korea on a frequent basis. Although I would accept that she loves A a great deal, I think it would be fair to say that for a lot of the marriage she was at best an uninvolved mother.”

26.  The Form E’s, questionnaires and answers were not before me.  I do not think I should indulge in speculating or second guessing what was in Judge Melloy’s mind.  Even from the Plaintiff’s own pleaded case she could have no valid claim arising from the sale of the Peak House.  More importantly it is amply clear that all the issues which the Plaintiff seeks to raise in respect of her claim arising from the sale of the Peak House and for account of profit in the property transactions in the present action had been raised and hotly disputed in the ancillary relief proceeding, though she took a conscious decision not to participate in that trial.  She should not be allowed to re-litigate on this matter.

Fraud relating to the revolving credit facility

27.  As for the issue of the Defendant’s fraud in relation to the revolving credit facility, that issue had also been raised by the Plaintiff in the ancillary relief proceeding and considered by Judge Melloy.  The judge said in paragraphs 60 and 61 of her judgment as follows:

“How should the dispute over the revolving credit facility be resolve?

60. The wife has consistently argued that she did not sign the original revolving credit facility letter. She says that her signature was forged. In the original maintenance pending suit hearing in September 2007 she agreed, through her then lawyer, that her maintenance pending suit could come either from the husband’s own financial resources or from the revolving credit facility. An order was made in the sum of HK$125,000 per month on that basis. She then changed her mind and has insisted since then that the husband pay for her maintenance from his other financial resources. Consequently she also refused to sign any subsequent facility letters, which has led to a great deal of other unnecessary satellite litigation.

61.           The husband has used the initial deposit on the sale of the property to pay off part of the revolving credit facility.  I am not sure why he did this and did not wait until completion had taken place.  In any event as the funds have been used to support both of them and A in the intervening period it seems to me only fair and reasonable that the remaining revolving credit facility should be paid back to the bank from the proceeds of sale, following completion.”

28.  It is clear from the above passages that the issue of forgery in relation to the revolving credit facility had been raised in the ancillary relief proceeding.  The Plaintiff alleged that the Defendant forged her signature in applying to the bank for the facility and she consistently argued that she did not sign the original revolving credit facility letter.  The Defendant categorically denied that he had forged the Plaintiff’s signature.  Judge Melloy ordered that such of the proceeds of sale of the Peak House be applied to discharge the remaining credit facility.  It is not clear what were the reasons for her decision.  One of the reasons was that the facility had been used for the maintenance of the parties and their son.  But that could only account for a fraction of the outstanding loan of $12.5 million, if the amount alleged by the Plaintiff was correct.  It is not for me to speculate or to make a second guess of what was in the judge’s mind when she made that order.  Judge Melloy had the complete account of the parties before her.  She had evidence of the three property transactions and the related fund flow, the income of the parties and the family expenditure.  She was in the best position to assess the credibility of the parties and their case.  Obviously, she could only have made the order that she did upon being satisfied that the Defendant had not forged the Plaintiff’s signature on the original credit facility letter and that he could not have been guilty of any misconduct as would require him to account for the outstanding loan other than that incurred for the purpose of their maintenance. 

29.  The Plaintiff sought to rely on the three reports prepared by Mr Stewart Wong of Proficient Surveyors & Co annexed to her 1^st affidavit to support her allegation of forgery by the Defendant.  Those reports were prepared after the ancillary relief proceeding and were not produced before Judge Melloy.  Under the principle I referred to above, the Plaintiff should have presented her whole case during the ancillary relief proceeding.  She raised the issue of forgery and she was aware of the availability of the expert back in 2007.  She chose not to obtain a report at that time.  Worse still, she chose to absent herself at the trial and not to challenge the Defendant’s evidence.  There is no reason to allow her to re-open this issue.

Special damages, loss of personal possessions, loss of possessions of Christine Lifestyle Limited and loss of business

30.  Under this head, the Plaintiff claims special damages, being loss of her personal possession as well as those of Christine Lifestyle Limited and loss of business of Christine Life Style Limited as a result of her eviction from the Peak House.  The Peak House was sold pursuant to a consent order of the Family Court.  The Plaintiff reneged that agreement and refused to vacate the Peak House.  The Defendant obtained an order from Judge Melloy dated 17 February 2009 requiring the Plaintiff to deliver up vacant possession of the Peak House by 23 February 2009.  She refused to vacate.  The Defendant obtained a Writ of Possession to evict her from the Peak House on 23 March 2009.  She was hence removed from the Peak House upon execution of the Writ of Possession by the court bailiff and committed to prison from 23 to 27 March 2009 by Judge Melloy to enable the sale of the Peak House to be completed.  No complaint could be made of her loss of the use of the Peak House and the loss of the business of Christine Lifestyle Limited conducted in the Peak House as she had consented to the sale which was carried out under a court order.  The loss, if any, was caused by her reneging the agreement and her obstinate refusal to comply with the court order.

31.  Furthermore, according to the 2^nd affidavit of the Defendant filed on 11 December 2009, at the time of execution of the Writ of Possession, a detailed inventory was recorded by the court bailiff and the Plaintiff’s personal possessions and those of Christine Lifestyle Limited were packed by professional movers and returned to the Plaintiff through her then solicitors, Messrs Wilson Yeung & Co.  These allegations were not disputed by the Plaintiff.  Accordingly, she could have no valid claim for any loss of her personal possessions or that of Christine Lifestyle Limited or for its loss of business.

32.  For the above reasons, this head of claim is clearly frivolous and vexatious and an abuse of the process of the Court.

Tracing and account of money due from the Defendant arising from the series of property transactions

33.  The Plaintiff claims that the Defendant failed to account to her the profit of $46 million made in the sale of the Barker Road Property and the profits or proceeds of sale in the subsequent property transactions.  As mentioned in paragraph 16 above, it was her own case that the profit had been applied towards the purchase of the Piccadilly Units which were then sold and applied towards the purchase of the Peak House.  Thus, on her statement of claim, the profit and proceeds of sale had been accounted for.  All those issues had been raised in the ancillary relief proceeding.  The Defendant had given explanation as to how the proceeds had been utilised during the subsistence of the marriage.  The issues had been adjudicated upon.  It is a clear abuse of the process of the court to allow these matters to be re-litigated now. 

Unfairness or injustice in the ancillary relief proceeding 

34.  The Plaintiff complained of unfairness or injustice in the ancillary relief proceeding.  She emphatically complained that she was being “legally raped” by the Defendant and her own lawyers in those proceedings.  The Plaintiff complained that the first solicitor she instructed was not capable of representing her since the solicitor was not married and could not understand her feeling as a mother.  That solicitor left her in order to go on a holiday planned a year ago.  She said that her second solicitor did not employ a Chinese secretary and could not handle her case.  She said she was frustrated with that solicitor who insisted sending her forensic evidence to Australia for expert opinion which was very costly.  That solicitor ignored her request to instruct a local expert she found.  She then instructed her third solicitor who referred her case to someone in the family law practice in his firm against her wish of engaging a criminal lawyer.  She said that her other lawyers bullied her.  The Plaintiff had been represented by nine firms of solicitors, most of which were very reputable in matrimonial law practice.  She was also represented by a very senior member of the Junior Bar.  Her allegations against her lawyers as revealed in her affidavit and in her submission in court are incoherent, to say the least.  In any event, those allegations could not provide any reason for re-opening the issues determined by Judge Melloy who could not have known of her complaints.

Fabricated medical evidence as to her mental condition and conspiracy

35.  The Plaintiff complained that the Defendant conspired with Professor Felix Lieh Mak who is a psychiatrist of good reputation, her maid Bernadith Villahermosa, Dr Mitsler and others to fabricate medical evidence as to her mental condition which led to Judge Melloy committing her to prison custody.  She also alleged a grand conspiracy against her among the Defendant, the police and Mr Blake who was a retired senior civil servant.  The alleged conspiracies also had nothing to do with the various claims pleaded in her statement of claim.  I do not intend to deal with the allegations in this decision.

36.  The Plaintiff also alleged that in rejecting her doctor’s evidence and ordering her committal, Judge Melloy had conspired with the Defendant.  She suspected the Defendant was related to Her Honour Judge Bebe Chu of the Family Court and was able to manipulate the proceedings before Judge Melloy.  These are very serious allegations against two judicial officers, one of whom was in the performance of her judicial functions.  There is not a scintilla of evidence to support her suspicion.  Such allegations are vexatious and ought to be struck out.  In any event, so far as her claim is concerned her mental condition was irrelevant. 

Conclusion

37.  The Plaintiff’s claims pleaded in her statement of claim formed part of the subject matter of ancillary relief proceeding in FCMC 7365/2007.  They had been hotly contested and were adjudicated upon by Judge Melloy.  Apart from the fact that her claims are shown to have no merit at all, the plea of res judicata applies.  It is not open to the Plaintiff to re-litigate those matters by starting a fresh action.  Her application must be struck out as an abuse of the process of the court.

38.  If the Plaintiff is not satisfied with the decision of Judge Melloy, her proper recourse is to appeal against the judgment.  Indeed, she had applied for leave from Judge Melloy to appeal, but her application was refused.  She then applied to a single judge of the Court of Appeal in High Court Miscellaneous Proceedings No 3 of 2010.  Her application was refused by Hartmann JA on 9 March 2010, shortly before this hearing.  The Plaintiff now submits that as she had sought leave to appeal from the Court of Appeal, I should not make any decision until after her application for leave has been decided by the Court of Appeal.  Indeed, as a matter of principle, there is no need for me to wait for the outcome of her application for leave to appeal from the Court of Appeal.  Her statement of claim must be struck out under the principle of res judicata.  Whether leave is granted has no bearing on my decision.  If leave is granted, this action is redundant.  Her claim will be reviewed by the Court of Appeal.  Whether leave is granted, the present action remains as an abuse of the process of the Court and must be dismissed as such.  By the date of this decision, I understand that in High Court Miscellaneous Proceedings No 987 of 2010, the Court of Appeal dismissed the Plaintiff’s application for leave to appeal on 17 June 2010.

39.  Accordingly, the Plaintiff’s writ of summons and statement of claim are struck out and the action is dismissed with costs on an indemnity basis to the Defendant, to be taxed if not agreed.