CHUNG KAU v. THE HONG KONG HOUSING AUTHORITY

CACV 353/2002 & 136/2003
(Consolidated)

CACV 353/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 353 OF 2002

(ON APPEAL FROM HCSD NO. 29 OF 2002)

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CACV 136/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 136 OF 2003

(ON APPEAL FROM HCB NO. 581 OF 2003)

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BETWEEN

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(Consolidated pursuant to the Order of the Honourable Mr Justice Yeung, Justice of Appeal dated 8 September 2004)

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J U D G M E N T

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Hon Ma CJHC :

1. By a Notice of Motion dated 20 October 2004, the Respondent (the Hong Kong Housing Authority) has applied for an order dismissing the consolidated appeals CACV 353/2002 and CACV 136/2003; alternatively that there be an order for security for costs.

2. These appeals arise in proceedings that themselves emanate from an action that had been instituted by the Appellant Mr Chung (together with a company called Phoon Lee Piling Co Ltd) against the Hong Kong Housing Authority for defamation and malicious falsehood (HCA 119/2001).

3. On 17 April 2002, Master Wong ordered that the claim in HCA 119/2001 be struck out.  This was upheld by Deputy High Court Judge Andrew Cheung (now Cheung J) on 11 July 2002.  This decision was in turn upheld by the Court of Appeal in a judgment handed down on 20 May 2003 in CACV 303/2002.  On 2 April 2004, the Court of Appeal dismissed Phoon Lee’s application for leave to appeal to the Court of Final Appeal (that company having been wound up).  In respect of Mr Chung, he was ordered to pay security for costs, which he has failed to do.  Those proceedings are now at an end.

4. Following the striking out of the proceedings in HCA 119/2001, the Hong Kong Housing Authority had its costs taxed at $702,597.  A statutory demand was then served on Mr Chung on 21 August 2002 in relation to these costs.  Mr Chung then applied to set aside the statutory demand but this was dismissed by Kwan J on 9 September 2002.  Mr Chung has sought to appeal this decision in CACV 353/2002, one of the appeals before us.  This appeal was not proceeded with expeditiously.

5. Following Kwan J’s refusal to set aside the statutory demand, a bankruptcy petition was filed against Mr Chung.  On 5 May 2003, Deputy High Court Judge Poon made a bankruptcy order against him.  Mr Chung filed a Notice of Appeal against this order (this appeal is CACV 136/2003, the other appeal before us).

6. There is a third set of proceedings emanating from HCA 119/2001.  This is HCA 3397/2002 in which Mr Chung made a claim against the Hong Kong Housing Authority and two other persons alleging that, essentially, by a serious of alleged frauds, the Hong Kong Housing Authority managed to procure the striking out of HCA 119/2001.  On 9 May 2003, Recorder Edward Chan SC struck out the claim.  Mr Chung appealed the decision in CACV 122/2003.  On 2 April 2004, Mr Chung was ordered to pay security for costs in relation to this appeal within 28 days, failing which the appeal was to stand dismissed.  He has sought leave to appeal this order to the Court of Final Appeal but this application for leave has been dismissed just now.  By reason of Mr Chung’s failure to provide security, that appeal stands dismissed.  HCA 3397/2002 is accordingly at an end as well.

7. Before us, Mr Harris on behalf of the Hong Kong Housing Authority has submitted that the consolidated appeals are so devoid of merit that they should be dismissed as an abuse.  There is clearly jurisdiction to strike out an appeal on the basis that it is clearly and obviously unsustainable, frivolous, vexatious or otherwise an abuse of process : - see here Hong Kong Civil Procedure 2004 Vol.1 at paragraph 59/3/6.

8. In the present case, I am of the view that the appeals should be struck out and dismissed : -

(1)   The statutory demand and later the bankruptcy petition against Mr Chung were on the basis of his failure to pay the costs that had been taxed following the striking out of his claim in HCA 119/2001.  As I have said, these proceedings are now at an end.

(2)   Although Mr Chung has claimed in HCA 3397/2002 on the basis that the striking out order in HCA 119/2001 was procured by fraud, this action is now also at an end following Mr Chung’s failure to provide the security for costs ordered by this Court on 2 April 2004.

(3)   In these circumstances, there can be no dispute that the debt (being the taxed costs in HCA 119/2001) was at all material times due and owing and this debt remains unpaid.  There is no possibility that the order to strike out made in HCA 119/2001 can now be set aside given that this action and HCA 3397/2002 are now at an end.

(4)   The consolidated appeals are therefore quite hopeless.  No additional evidence exists that contradicts the fact that the debt is owed by Mr Chung.  All the points he has made today are merely repetitions of allegations previously made in the two actions I have referred to.

9. For the above reasons, I would order that the consolidated appeals be struck out.

Hon Yeung JA :

10. I agree and have nothing to add.

Hon Burrell J :

11. I agree.