MAKHSSIAN TRAJAN VAHE v. MAYER BROWN JSM, MAYER BROWN INTERNATIONAL LLP alias MAYER BROWN. SOLICITOR ASSOSIATE SIMON AU MING, AVOCATE SOLICITOR, DAVID MCKELLAR

HCA 934/2020

[2020] HKCFI 3168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 934 OF 2020

________________________

________________________

________________________

J U D G M E N T

________________________

A. Introduction

1.  The plaintiff is really rather upset.  He says that is a change from his former happy self.  The root cause of his upset is the cancellation of a dance music concert event – the White Party Hong Kong 11^th Anniversary – that he and his company Musicasia Entertainment Hong Kong Ltd (“Musicasia”) had planned to put on at Cyberport in September 2016.

2.  That cancellation has led to various litigation commenced by the plaintiff.  In broad terms, the plaintiff has thus far found the results of the various litigation to be thoroughly unsatisfactory.  As occasionally happens in similar circumstances, the dissatisfaction has manifested itself in widening litigation, involving broader and increasingly serious allegations against different targets.

3.  This action is one such piece of litigation.  It was commenced by writ dated 10 June 2020, which has the statement of claim endorsed on it.  It is a claim for defamation/libel, based upon what are said to be two libellous statements to be found in two documents.  The claim seems to identify the defendants as the makers of those statements and documents. The claim seeks what the plaintiff describes as “a very reasonable and generously the amount of (50,000,000.00 HKD / fifty million HKD)” as well as “any other damages to be assessed … in full and final settlement of any potential claim against the defendant in respect of the above-mentioned matter”.

4.  The named defendants are:

(1)  Mayer Brown JSM (“Mayer Brown”), a law firm that previously represented Hong Kong Cyberport Management Co Ltd (“HKCMCL”), an adverse party to the plaintiff in previous actions brought by the plaintiff;

(2)  Mayer Brown International LLP, a limited liability partnership resident in the United Kingdom.  However, this defendant has not been served with these proceedings and is not currently represented;

(3)  Mr Au Simon Ming Si (“Mr Au”) – named incorrectly on the writ – a solicitor and senior associate of Mayer Brown who worked on the proceedings brought against HKCMCL; and

(4)  David McKellar (“Mr McKellar”), a partner of Mayer Brown who serves as Mayer Brown’s Deputy General Counsel for Asia.

5.  By summons dated 31 July 2020 (“Summons”), Mayer Brown, Mr Au and Mr McKellar have together applied for the claims in this action to be struck out on the basis that they disclose no reasonable cause of action, are scandalous, frivolous and vexatious, or are otherwise an abuse of the Court’s process.  Unless the context otherwise makes clear, references in this Judgment to “the defendants” is to those three defendants.  Mr Withington of Howse Williams (“HW”) appeared for the defendants at the hearing.

6.  The strike out application is firmly resisted by the plaintiff, who appeared in person at the hearing.

7.  The parties have filed various affidavit evidence, as well as skeleton submissions.  Though I do not intend to refer to all parts of the evidence and submissions, I have them well in mind in reaching this Judgment.

8.  I also have specifically in mind that English is not the plaintiff’s first language, so that it is necessary to look past any infelicities of language or spelling, and to look at the substance.  I also keep in mind that the plaintiff is not legally represented.  Of course, the fact that the plaintiff is an unrepresented litigant does not relieve him of the need to comply with procedural rules, for example the rule that pleadings have to be clear, and to file evidence in accordance with a directed timetable (or to make proper application to file any further evidence out of time). However, I exercise my discretion to be a little more lenient to the plaintiff in giving him an opportunity to put forward his case and to attempt to get things right.

B.  Background

9.  On the basis of some grounds for the application, it is necessary to assess the strike out application in its proper context, and with the benefit of an understanding of the background.

10.  The plaintiff was the sole director and shareholder of Musicasia, a limited company that was incorporated in Hong Kong on 31 May 2013 and dissolved on 15 May 2020.  Prior to its dissolution, Musicasia had hosted musical events under the name of “White Party”.  Prior to its incorporation, the plaintiff’s relevant entertainment and artist management business had apparently been conducted through an unincorporated body or sole proprietorship of a similar name.

11.  The plaintiff says he invented the White Party Hong Kong in 2005 and has invested heavily in the concept, investing “more than $50 million worth of work, time, costs, revenue & income to build the brand and his reputation”.  The brand White Party is a registered trademark in Hong Kong.  Since 2005, the White Party Hong Kong took place at various venues, and the 10^th Anniversary of White Party Hong Kong was celebrated at the Kai Tak Cruise Terminal in 2015.

12.  In early July 2016, either the plaintiff or Musicasia made an online booking of Ocean View Court (“OVC”), a venue at Cyberport, in order to host a White Party on 3 September 2016. Thereafter, there were further discussions between the plaintiff and ISS Eastpoint Property Management Ltd (“ISSEP”), which was the facility manager of Cyberport from around 2002 to 30 September 2016.

13.  On 25 August 2016, HKCMCL, the owner of Cyberport, made an application to the FEHD for a Temporary Public Place of Entertainment (“TPPE”) Licence in respect of a number of proposed functions which would be held in the OVC and another venue at Cyberport from 1 October 2016 to 31 March 2017.  One of the proposed functions included in the application was “White Party Hong Kong 11th Anniversary”. The date put forward for the White Party in the TPPE application was 22 October 2016, as there was apparently an earlier booking already made for another event at the venue for 3 September 2016.

14.  On 28 September 2016, HKCMCL received by fax a letter dated 29 September 2016 (“FEHD Letter”) from the Food and Environmental Hygiene Department (“FEHD”).  The FEHD Letter stated that the FEHD would not proceed with the application because of an objection raised by the Hong Kong Police Force.  The objection from the Police was set out in an undated note (“Note”) appended to the FEHD Letter, entitled ‘Comments by the Hong Kong Police Force’.

15.  The Note identified Police objection to the White Party Hong Kong 11^th Anniversary “in the strongest possible terms”, on grounds which included the following statement:

The potential for illegal activity (such as substance abuse & dangerous drugs etc.) at this event is notable.

16.  That statement (“First Statement”) is the first allegedly defamatory statement referred to in the plaintiff’s present claim.

17.  The booking of the OVC for the White Party had however already been rejected by HKCMCL, and this rejection had been conveyed to the plaintiff through ISSEP on or about 2 September 2016 (almost a month prior to the issuance of the FEHD Letter).

18.  Anyway, the plaintiff says that prior to the cancellation his reputation was at the highest point ever, but since the cancellation his reputation and business have never recovered.  This has spilled over into and affected his private life too.  As I have already indicated, this is at the root of the plaintiff’s upset and subsequent claims.

19.  Indeed, following the cancellation, the plaintiff then commenced proceedings against various parties, eventually including Mayer Brown, in respect of the rejection of the application for the TPPE Licence and the cancellation of the White Party.

20.  On 15 September 2016 and 12 January 2017 respectively, the plaintiff commenced HCA 2395/2016 against ISSEP and HCA 43/2017 against HKCMCL.  Both of these actions related to the planned booking of the OVC and the rejection of the TPPE Licence in respect of the White Party on 3 September 2016.  ISSEP was represented by Clyde & Co and HKCMCL was represented by Mayer Brown.  Given that they involved the same underlying subject matter/factual matrix, these actions were ordered to be heard together.

21.  As was later summarised by Lok J in §§5 and 13 of his Judgment dated 5 December 2017, it seemed that the plaintiff was making two broad claims against ISSEP and HKCMCL, namely:

(1)  there was a binding agreement for the booking of the OVC on 3 September 2016, and as ISSEP and HKCMCL failed to provide the venue as agreed, the plaintiff suffered loss and damages; and

(2)  ISSEP and HKCMCL committed various torts against the plaintiff, including unlawful interference, fraudulent misrepresentation, defamation, breach of confidence and fiduciary duty, fraud, and inducing a breach of contract.  From the pleadings, all of these claims arose from the same facts, namely the rejection of the application for a TPPE Licence.

22.  Lok J noted that from the pleadings (including proposed re-amendments), all of the various claims arose from the same facts, namely ISSEP’s and HKCMCL’s application for the TPPE Licence in relation to the White Party.  Lok J also set out the background, most of which he described as being not in dispute, including that HKCMCL, as the owner of Cyberport, had made the application for the TPPE Licence, which application was prepared by ISSEP.

23.  ISSEP and HKCMCL applied to strike out those claims.  At the hearing of the applications, Mr Au appeared on behalf of HKCMCL.

24.  Lok J took the view that the pleadings (including the plaintiff’s existing and proposed amended pleadings) for the contractual claims were confusing, ambiguous and embarrassing, and the tortious claims were totally unarguable, without proper basis, and obviously unsustainable and frivolous.  Lok J therefore ordered that the Amended Statement of Claim in both actions be struck out, but as “an indulgence” he granted the plaintiff general leave to file fresh statements of claim.

25.  As an aside, at the oral hearing yesterday, the plaintiff suggested that as Lok J struck out the Amended Statement of Claim, the original Statement of Claim still existed. However, he accepted my explanation that the Amended Statement of Claim had replaced and superseded the original claim, so that when the Amended Statement of Claim was struck out, no claim was left.  Hence the leave granted to file a fresh claim.

26.  On 17 November 2017 (after the hearing before Lok J, but prior to his Judgment), the plaintiff commenced HCA 2608/2017 against Mayer Brown, Clyde & Co and the Government of Hong Kong.

27.  The plaintiff’s claims, as stated in the Statement of Claim, included:

“The Plaintiff … claims the amount of 5 Billion Euro for lost of income, loss of reputation in front of all potential business, and for runing the Plaintiff image, the Defendants harmed the affairs of the Plaintiff by humiliating, blocking and depriving him to pursuit his projects, his work, and his creativity with proven income and potential income with exclusive projects that the Plaintiff lost due to the Defendants tortious acts”. [sic]

28.  However, shortly thereafter, on 22 December 2017, the plaintiff discontinued that action.

29.  On 14 December 2017, with the leave granted by Lok J, the plaintiff filed what (though headed ‘Amended Statement of Claim’) was actually the third iteration of his claim in the actions, so might be called the Re-Amended Statement of Claim.  Relevant for present purposes, it can be noted that part of the claim involved the assertion that the plaintiff never authorised ISSEP/HKCMCL to apply for the TPPE Licence on his behalf, and that it was “illegal” for them to have done so without his consent and involvement.  That was consistent with the original claim which included the assertion that it was HKCMCL which had applied for the TPPE Licence, albeit without the plaintiff’s authorisation.

30.  On the same day 14 December 2017, the plaintiff appealed against Lok J’s Judgment.  The Court of Appeal, comprising two judges, having considered the plaintiff’s Reasons for Appeal and other documents lodged by him, dismissed the application on the papers and ordered that no party to the application may request the determination to be reconsidered at an oral hearing inter partes.  The Court of Appeal observed (a) that despite reminder by the Registrar, the plaintiff had “singularly failed to identify the so-called errors of the judge and the false evidence of the Defendants in his applications”, and (b) that the applications by the plaintiff were “totally without merit and vexatious”.

31.  ISSEP and HKCMCL issued a further strike out application in relation to the plaintiff’s ‘Amended Statement of Claim’ on the ground that it disclosed no reasonable cause of action, was scandalous or frivolous or vexatious and/or that it was otherwise an abuse of the process of the Court.

32.  The strike out applications were heard by Master K W Wong on 28 May 2018.  Mr Au appeared for HKCMCL at that hearing.

33.  At the conclusion of the hearing, Master K W Wong ordered that the plaintiff’s Amended Statement of Claim be struck out and that the action against HKCMCL (ie. HCA 43/2017) be dismissed.  The Master’s Order was approved by the Master and sealed by the Court.  The Order records that:

The Amended Statement of Claim dated 14 December 2017 be struck out on the grounds that it discloses no reasonable cause of action and is frivolous or vexatious.

34.  That statement (“Second Statement”) is the second allegedly defamatory statement referred to in the plaintiff’s present claim.  The plaintiff’s focus is on the words “frivolous or vexatious”.

35.  The action against ISSEP (ie. HCA 2395/2016) was not dismissed, and the plaintiff has said that it was eventually settled.

36.  The plaintiff applied for leave to appeal Master K W Wong’s Order about 7 months out of time.  In a reasoned Decision dated 6 March 2019, DHCJ Keith Yeung SC (as he then was) held that Master K W Wong was correct in striking out the ‘Amended Statement of Claim’ as the plaintiff had failed to address the concerns expressed in Lok J’s Judgment (which had led to the Statement of Claim being struck out in the first case).  Accordingly, even if enlargement of time were to be granted, the appeal “would have no chance of success, not to mention any reasonable or real prospect of success”.  So, leave to appeal was refused.

37.  In the same Decision, the judge noted some of the matters alleged by the plaintiff in the affidavit filed with the application/appeal.  Those matters included the plaintiff’s allegations that: (a) he had discovered “false evidences”; (b) the evidence presented by HKCMCL “are false evidences, defective and very confusing”; (c) “All the affirmations since the beginning of the proceedings by the defendant are false, fabricated, unreal, and inconsistent on its face of it”; and (d) “The Defendant misguided Skeletons and false or fraudulent evidences attached with the Affirmations influenced the Court to obtain false Judgements and orders in the proceedings”.  The judge was clearly not persuaded that there was any merit in any of those points.

38.  The judge also noted that during the hearing, the plaintiff sought to rely on a statement he made to the police on 17 January 2019.  The judge held that the statement did not assist the Plaintiff’s application in any way, as it contained only his allegations and was entirely self-serving.  He also noted the penultimate paragraph of the statement which recorded that the statement was for “record only”, and that after communication with the police, the plaintiff understood that he “will have to settle the case through legal proceedings”.

39.  On 4 September 2019, the plaintiff was adjudged bankrupt in HCB 4115/2019 on the basis of two costs orders totaling HK$74,000 awarded to HKCMCL in HCA 43/2017.  Mayer Brown represented HKCMCL in those proceedings.  The plaintiff has since complained that he was made bankrupt “illegally”, but he has taken no steps to challenge the bankruptcy order.

40.  On 24 April 2019, the plaintiff commenced HCA 716/2019 against HKCMCL.  The documents filed by the plaintiff were at least substantively similar to his claim in HCA 43/2017.

41.  On 29 June 2020, Master Ho heard an application by HKCMCL to strike out that claim.  Mr Au appeared on behalf of HKCMCL at that hearing.

42.  Master Ho made an order to strike out the claims on the grounds of abuse of process of the Court, as the plaintiff had no locus to bring the proceedings due to being adjudged bankrupt, and/or for want of prosecution as the Official Receiver had declined to adopt or continue the proceedings.

43.  On 29 October 2020, I heard what was said to be an urgent ex parte application made by the plaintiff.  The ex parte summons had been redirected to me, having originally been directed to the Duty Judge.  Though the application papers were numbered with other High Court action numbers – namely HCA 43/2017, HCA 716/2019 and HCB 4115/2019 – and though perhaps connected to those actions, it seemed to me that the application did not arise directly out of any of those actions, and the application was therefore assigned the intended action number HCZZ 211/2020.

44.  By the ex parte summons, the plaintiff sought the grant of leave to apply for the committal of Mr Au.  The ex parte summons sought the following order:

Complain againts the parties, and serious abuse of Court, Review of the Registrar decisions.

Injunction to defendant.

Ref: Stop the defendant further contempt of court.

Kindly: Ref of The Registrar of the court: HCB 4115/2019, HCA 716/2019, HCA 43/2017. [sic]

45.  There were two defendants named on the summons namely (1) ‘Mayer Brown JSM, Mayer Brown, Au Simon Ming Si’, and (2) ‘David McKellar, Official Receiver’.  If that is what the plaintiff intended to convey, Mr McKellar is, of course, not the Official Receiver.  The plaintiff confirmed that he intended to make the application on an ex parte basis, and that no notice was given to either named defendant.  He also presumed that no notice would be given to either defendant.

46.  At the end of the hearing, I dismissed the application.  As the plaintiff appeared in person, I thought it would be helpful if I were to reduce into writing my reasons for dismissing the application.  My Reasons for Decision were given the next day, on 30 October 2020.  Reference can be made to the reasoning, but I considered the application and the basis of the plaintiff’s complaints about Mr Au were wholly misconceived.

47.  I also pointed out that as the plaintiff is an undischarged bankrupt, my view (which view was apparently shared by the Registrar) was that the plaintiff ought not to have made the application without giving notice to the Official Receiver or his trustee in bankruptcy (if one had been appointed).  That the plaintiff was dissatisfied with the bankruptcy order made against him, and apparently lacks trust in the Official Receiver, did not absolve him of the need to have given notice, not least when he was told to do so by the Registrar.  It being strictly unnecessary to decide the point, I left aside whether the plaintiff was even eligible to have made the application without giving that notice to, or obtaining the permission or authority from, the Official Receiver.

48.  However, I specifically suggested that the plaintiff should properly liaise with the Official Receiver, so as to ensure that any steps that he wishes to take in any other proceedings do not fall foul of any technical requirements arising from the making of the bankruptcy order against him.

49.  Further, because reference was made orally at that hearing to this current action, I said I would call for the papers and if appropriate fix an early directions hearing.  At the directions hearing subsequently fixed, I provided a copy of my Reasons for Decision to Mr Withington, and I re-fixed the current strike out application so as to bring it forward from the original date of 24 February 2021 to 30 December 2020.

C.  The Claim

50.  In summary, the plaintiff’s complaints in the statement of claim appear to be that:

(1)  the defendants are the makers of or somehow responsible for the First Statement in the Note appended to the FEHD Letter, which the plaintiff says is defamatory of him; and

(2)  the defendants are also the makers of or somehow responsible for the Second Statement in the Order of Master K W Wong made in HCA 43/2017, by which the Master struck out the plaintiff’s Statement of Claim in that action as being, amongst other things “frivolous and vexatious”, which the plaintiff says is defamatory of him.

51.  Against Mr Withington’s criticism that the allegations made by the plaintiff are vague and unparticularised, it is helpful to set out more detail of the pleading.

52.  As to the First Statement, the plaintiff pleads (as typed):

1)  The Defendants premediated a document obtained by the police, the Defendants provided false information to the Police to obtain a defamatory statement that caused the Plaintiff serious harm in his business, career, family separations, emotional distress daily, unable to go out and socialize, and made me unable to continue my business of entertainment and concerts with the Top international / locals artists because I was unable to give an explanations to sponsors and investors about it because when meeting the respective sponsors and investors, the question will rise “Trajan what was the problem of the last event White Party 11 Anniversary ?, I couldn’t give an explanation.

2)  and to diminish the harm done I did not meet or continued any work with them to avoid the question “Trajan what was the problem of the last event ? because I couldn’t give a explanation of that happened in regards the libel document, basically I don’t lie to my to sponsors and investors and starting a meeting with a question ‘Trajan what was the problem of the last event? and if me explaining this issue would have undermined my expertise and in the sponsors and investors mind it and that would be a risk for them to continue working with the Plaintiff.

3)  The Defamatory statement dated 29 Sep 2016 is: “The potential for illegal activity (Such as Substance abuse & dangerous drugs etc.,) at this event is notable.”

4)  I received this letter from the Defendants indirectly, the reason to receive this letter, was that my event booking is cancelled due to this statement written in the document that was directed to the Plaintiff.

5)  However, I was in very shock to see that the Defendants broke the rules, and did write my name, Company name, my Brand name Copyrights and Trademark White Party 11^th anniversary, my address and my previous phone number in an application submitted to the food and hygiene department and to the Police without my consent or authorization.

6)  When the Plaintiff apply such TPPE there are strict rules and regulation to follow to obtain the TPPE, for dance event music.

7)  The defendant TPPE application submitted documents to the FEHD where very awful without hope to obtain a TPPE.  That same application is guaranteed to be refused by the Police and therefore it was premediated to harm the Plaintiff.

7)  In the Defendant rules and regulations clearly states that the PLaintiff should obtain the TPPE license and provide it to the venue.

However, the Defendant premediated this false application of TPPE without my consent or authorization, to harm the plaintiff reputation and to deprive him to have any affairs with Cyberport , and to provide this letter I, to all the respective directors and lawyers , and circulated the information in the Cyberport community that the Defamatory statement dated 29 Sep 2016 is: “ The potential for illegal activity ( Such as Substance abuse & dangerous drugs ect,) at this event is notable.”

8)  The Plaintiff was living with his family for 25 years, after the defamatory statements his family got separated and the Plaintiff is very eager to resume his business and continue to support his family.

9)  The Plaintiff is expert in producing, organizing, promoting, and manage local and international artists since 1999, in 2005 His fist event Brand “White Party” Dress In white is an event to celebrate love and friendships.  Since then the Plaintiff produced over 100 events in Hong Kong all successfully without any issues of drugs or violence.

10)  The Police hails me every time I conclude an event with success, I have obtained 3 TPPE license previously, 1^st at Asia Expo, 2^nd at Kai Tak Cruise Terminal 4000 Capacity, 3^rd Kai Tak cruise terminal 4000 Capacity.

11)  During the whole career of the Plaintiff in business there was never any arrests or any drug related issues while the concerts are performing.

12)  It takes allot of work and solid experience and accounted reputation to obtain such temporarily TPPE dancing license.

13)  In the Plaintiff career only once a TPPE was refused due to the previous so-called café deco mistakes informing me that they have a permanent license. and before 1 week before the event The Police showed up to Café Deco and asking the Café Deco Management where is his TPPE licenses because on the tickets sales advertisement was mentioned 2000 capacity.  In 2008 The Café deco did apologize and immediately compensated me to restore my reputation on another event at Asia Expo where the TPPE license upon my team submitting it to the police with several meetings approval was granted Asia Expo.

14)  The same time The Plaintiff was engaging to do business and creating a Program APP named www.mynetfriends.com that is better than Facebook and Wechat, Line,  and the prospect of success was very prosperous with Cyberport and happy between 5^th June 2016 until the cancellation of the event which is my copyright, trademark White Party on the 2^nd September 2016.

15)  I was going to kick some real ass of the Facebook app, and wechat app because my strategies are much more different and fortunate and privacy more secure than ever, and the revenues where a calculation of 100 Billion USD per year.

16)  However, the defamatory statement ruined everything positive in my life specially because Cyberport is a place to create apps and programs to do mynetfriends.com.

17)  The Defamatory statement dated 29 Sep 2016 is: “The potential for illegal activity (Such as Substance abuse & dangerous drugs etc.,) at this event is notable.  Cause huge losses monetary and did construct to lower the reputation of the Plaintiff in the eyes of the right-thinking members of the society and the statement contained has made the Plaintiff class lowered and that the ordinary reasonable reader or heard about it will link the defamatory statement to the Plaintiff.

The Defendant knew that would destroy his credibility towards his supporters, sponsors and artists in the top 100 billboard awards and top DJ and artist worldwide.  And the Word to mouth that is circulate upon my peers and individuals is making the Plaintiff very insecure to recommence his affairs and business.

53.  As to the Second Statement, the plaintiff pleads (as typed):

17)  Master K W Wong in his transcripts that I obtained from the final court of appeal never mentioned or ordered that the Plaintiff action is Vexatious.

18)  The defendant document prejudiced the Plaintiff of all his actions against the defendant and making all the matters worse.  Vexatious is lowering my credibility in any procedures to all the respective directors and lawyers , and circulated the information in the Cyberport community that the Platiff is vexatiou is the same as a liar in the normal reading population reading such words ( faveolus & Vexatious) that would make very unprofessional and damaged my integrity on my clients and others.

19)  in order to be tagged as a Vexatious Litigants,

Rules of the high court Order 32A the application must be heard by a single Judge.  And it involves a long procedure.

20)  At the end of this claim I am been severely Defamed, and the same defendant went as far as to illegally bankrupt me of the amount $579,000.00. against the taxation order of $975.00.

54.  Mr Withington submits that the claims fall to be struck out because:

(1)  the statement of claim discloses no reasonable cause of action against the defendants, in that neither of the First Statement or the Second Statement were made by any of the defendants, and nor are they capable of being defamatory of him;

(2)  the claim is infringed the principles of res judicata; and

(3)  the proceedings are scandalous, frivolous and vexatious, and represent an abuse of the process of the Court.

55.  Mr Withington submits that the claims are completely misconceived and unsustainable.  He says the plaintiff is pursuing non-existent claims against the defendants, in the hope that he will recover compensation for alleged problems created for his business supposedly as a result of the rejection of the TPPE Licence.

D.  Applicable Principles

56.  As indicated in the Summons, the applicant defendants rely upon all of the grounds in RHC Order 18 rule 19 and the Court’s inherent jurisdiction.

57.  The principles applicable on an application to strike out under RHC Order 18 rule 19 are well-established, and need not be supported by any long reference to previous authorities.

58.  The burden is on the applicant to demonstrate to the Court that the case is a plain and obvious one in which the claim is bound to fail.

59.  A “reasonable cause of action” means a cause of action with some chance of success when only the allegations in the pleadings are considered.  So long as the statement of claim or the particulars disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out.

60.  In this context, it is to be remembered that pleadings must comply with certain fundamental requirements, including: (a) the pleading must set out the material facts relied upon; (b) the pleading must contain the necessary particulars of claim; and (c) in an action for libel, the pleading must contain a statement giving sufficient particulars of the document complained of.

61.  Where the only ground for striking out put forward is that there is no reasonable cause of action, no affidavit evidence is admissible.

62.  Allegations of dishonesty, immorality and outrageous conduct, and the like, are not “scandalous” and cannot be struck out, if they are relevant or necessary to any issue in the action.  The sole question is whether the matter alleged to be “scandalous” would be admissible in evidence to show the truth of any allegation in the pleading which is material with reference to the relief claim.  If, however, degrading, indecent or offensive charges are made which are irrelevant or are for the sole purpose of abusing or prejudicing the other party, the pleading becomes “scandalous” and liable to be struck out.

63.  A proceeding is considered “frivolous” where it is incapable of reasoned argument, without foundation and where it cannot possibly succeed.  A proceeding will be “vexatious” where it is oppressive or lacks bona fides.  “Frivolous” or “vexatious” proceedings include those which are an abuse of process.

64.  An “abuse of the process of the Court” 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 (eg. where any action is absolutely groundless, where the claim is time-barred) summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.

65.  The Court retains inherent jurisdiction to stay or dismiss an action which is obviously frivolous or vexatious.  All facts are relevant to an application under on this ground and affidavit evidence is admissible.

66.  It is well settled that an application to strike out a claim for defamation is available, where appropriate.  In particular, it is appropriate to make such an application where it is clear that the words complained of were spoken on an occasion which was absolutely privileged: see Gatley on ‘Libel and Slander’, 12^th Ed (2013) §§30.38 and 30.41.

67.  While the second-named defendant has not joined in the application, the Court may of its own motion also strike out the action as against it, and Mr Withington has invited the Court to do so.

68.  For his part, the plaintiff has placed emphasis on something said by Lord Denning MR in a dissenting judgment in Goldsmith v Sperrings Ltd [1977] 2 All ER 566 (though I think the dissent was as to the ultimate decision, rather than as to the applicable principles):

In a civilised society, legal process is the machinery for keeping and doing justice.  It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims.  It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exhort pressure so as to achieve an improper end.  When [the process of the court] is so abused, it is a tort, a wrong known to the law.  The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done.  If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer. …  Sometimes abuse can be shown by the very steps being taken in the courts. …  And other times the abuse can only be shown by extrinsic evidence that the legal process is being used for an improper purpose.  On the face of it, in any particular case, the legal process may appear to be entirely proper and correct.  What may make it wrongful is the purpose for which it is used.

69.  As I understand it, the plaintiff relies on that passage to say that abusive behaviour by the defendants, such as extortion or oppression, should not be tolerated by the Court, so that the Court should intervene to stop it.  But I think it should be trite that the principle that the Court can and should prevent abuse of its process applies whenever it is satisfied that there is an abuse, and to prevent that abuse by whoever is being abusive of the Court process.

70.  The plaintiff also relies on the principle that the motive and intention of a plaintiff making a claim are irrelevant; the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point.  Accordingly, the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse; an action is only abusive if the Court’s processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings.  It will be only in the most clear and obvious cases that it would be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.

D.  The Plaintiff as a Bankrupt

71.  As indicated above, the plaintiff is an undischarged bankrupt.  The bankruptcy order was made against him on the basis of two costs orders awarded to HKCMCL in HCA 43/2017.

72.  In his submissions, the plaintiff has asserted that the bankruptcy order was “illegally” or improperly obtained against him. As well as apparently querying the amount of the relevant debt owed in relation to costs, the plaintiff has suggested that the bankruptcy proceedings were not properly served on him.  Nevertheless, the plaintiff has taken no steps in the bankruptcy proceedings to seek to challenge the bankruptcy order.

73.  In those circumstances, I remain of the view that it would have been preferable for the plaintiff to have notified the Official Receiver (or his trustee in bankruptcy, if one has been appointed) of these proceedings and the claim he makes in them.  This is particularly so where at various points in his skeleton submissions for this hearing, the plaintiff has emphasised that this action is about the cancellation of the intended White Party event at Cyberport, which cancellation the plaintiff says has caused him loss and damage.

74.  However, Mr Withington has made clear that the present strike out application is not in any way based upon the fact that the plaintiff is an undischarged bankrupt.  As Mr Withington has put it, it is at least “debatable” whether a personal claim in defamation is the kind of claim which rests with a trustee in bankruptcy (as opposed to the person who has been declared bankrupt).

75.  On that basis, I do not take the fact that the plaintiff is an undischarged bankrupt into account for present purposes.  I can, therefore, approach the analysis without further reference to that fact.

76.  Nor do I think the fact that the plaintiff was made bankrupt on an application in which Mayer Brown acted as solicitors arguably supports the plaintiff’s allegation made orally that it evidences the intention of Mayer Brown to harm him.  Nor can such an allegation save his pleaded claim, if it is otherwise liable to be struck out.

E.  Further Documents

77.  I can also briefly mention further documents which the plaintiff sought to adduce during the oral hearing, but which he had not previously included in his evidence filed in response to the application, and for which he made no application for leave to adduce them in evidence.

78.  One batch of documents consisted of a ticketing agreement and certain payment documents relating to the supply of alcoholic beverage to one of the White Party events.  However, upon perusal, it could be seen that those documents related to the 2015 event, and were not relevant to the issues the subject of the current application.  I handed them back to the plaintiff.

79.  Another document was a police statement made by the plaintiff in 2019.  The plaintiff wished to show me the statement on the basis that, because the taking of the statement was partially performed by police officers writing it and asking if he agreed its contents, the statement demonstrated the police agreed with him that the defendants had forged documents and produced false information seeking to influence the Court.  However, the police statement clearly demonstrates no such thing.  Indeed, it is the same statement apparently handed to the then DHCJ K Yeung, to which he made reference in his Decision dated 6 March 2019, describing it (in my view, correctly) as not assisting the plaintiff in any way, containing only his own allegations and being entirely self-serving and for the purpose of record only.  I also returned that document to the plaintiff.

F.  Allegations of Forgery

80.  Though it forms part of the overall analysis, it seems to me to be appropriate to deal separately with the various allegations of forgery made by the plaintiff against the defendants.

81.  Such allegations, perhaps particularly when they are made against solicitors who are officers of the Court, are serious.  The Court always requires allegations of fraud and/or forgery to be properly asserted with clear and proper particulars, and to be properly proved.

82.  Even in the context of a strike out application, it may be clear to the Court that the allegations of fraud or forgery put forward are entirely groundless, without any possibility of success and so bound to fail.

83.  In this case, I think the plaintiff’s allegations of forgery are utterly devoid of merit.

84.  The main document which the plaintiff now alleges to be forged is the FEHD Letter and the Note attached to it.  I say “now” alleges, because the plaintiff has only suggested a forgery in the context of these proceedings.  Before that, the plaintiff appeared to accept that the documents were genuine (see above).

85.  In light of the plaintiff’s allegation that the copies of the FEHD Letter and the Note produced and relied upon by the defendants were forgeries, it is no surprise that enquiries were made of the FEHD as to whether the documents were genuine.  The plaintiff has sought to criticise the defendants for making those enquiries, saying that the Court never asked for the enquiries to be made.  That seems to me to be a misplaced criticism, perhaps based on a misunderstanding of the adversarial system used in Hong Kong.  The Court in Hong Kong, unlike in some other civil law jurisdictions, does not act as an investigator collecting evidence; rather, the Court in Hong Kong deals with the disputes that come before it on the basis of the evidence produced by the parties (though, in appropriate circumstances, it may be open to the Court to draw inferences from the absence of evidence).

86.  In any event, HW (acting for the defendants) – and not the defendants themselves – made the relevant formal enquiries.  By letter to the Southern District Environmental Hygiene Office dated 24 September 2020, HW referred to a verbal confirmation received over the telephone on 1 September 2020 that the FEHD Letter had fact been issued by the FEHD, but HW also sought written confirmation as soon as possible.  HW’s letter provided a copy of the FEHD Letter and the Note so that the FEHD could see the documents relating to the confirmation sought.

87.  By letter dated 21 October 2020, addressed to HW – and not to the defendants themselves – a Ms Leung of the FEHD, signing for the Director of Food and Environmental Hygiene, wrote to confirm that the FEHD Letter and the attached Note was issued by the FEHD on 29 September 2016. She enclosed a copy of the original letter containing three pages.  Save for the fax ‘header’ on the document provided for confirmation, the copy of the original enclosed with Ms Leung’s confirmation letter is the same as the document for which confirmation was sought.

88.  The plaintiff has tried to make something of the fax ‘header’ point.  But there is obviously nothing in that point.  The original document would not have a fax ‘header’ marking, unlike the recipient’s copy which was received by fax.  There is also no assistance to be gained by the plaintiff form the fact that certain other documents in the bundle have both fax ‘headers’ (at the top of the page) and fax ‘tails’ (at the bottom of the page).  Nor is there any proper basis for suggesting that the Note must have been faxed from the Police to the FEHD, so that there is something suspicious in that no fax markings are on the copy of the original now provided by the FEHD.

89.  Faced with the confirmation from the FEHD itself, that the FEHD did in fact send the FEHD Letter and attached Note in September 2016 (and that they are therefore genuine documents), the plaintiff has asserted the confirmation letter of 21 October 2020 is also a forgery.  He makes that assertion simply on the basis that because he asserts the document purportedly confirmed is a forgery, so must the confirmation also be a forgery.

90.  It can be noted that this yet further assertion of forgery necessarily widens the allegations to include HW as alleged forgers, because the confirmation letter of 21 October 2020 is addressed to that firm.  The plaintiff thinks his challenge is assisted because HW has failed to produce the envelope in which the letter was sent, despite his requests for HW to do so.  But, it seems to me that it is wholly understandable that the envelope would have been routinely discarded upon the receipt of the letter by the firm.  More importantly, I think there is absolutely no basis for alleging that the confirmation letter of 21 October 2020 is anything other than a genuine letter providing full confirmation that the prior allegation of forgery is simply unsustainable. That the FEHD turns out to have been able to provide a response to the enquiries, earlier than it had previously suggested that it might be able to provide such response, also does not assist the plaintiff.  The earlier than anticipated response provides no basis from which a Court could reasonably infer that the response received was a forgery.

91.  For the avoidance of doubt, I also think there is nothing at all in the points made by the plaintiff which seek to raise some doubt or suspicion about the genuineness of the FEHD Letter and the Note, which points are based upon various textual comparisons between those documents and other documents.

92.  It is at least unfortunate that the plaintiff has felt it appropriate to continue to make serious and evolving and widening allegations of forgery, when there is actually no basis in the evidence properly capable of supporting or sustaining those allegations.

G.  Analysis

93.  The First Statement was not made by any of the four named defendants, and there is simply no credible evidence to suggest otherwise.

94.  Indeed, no one at Mayer Brown had any involvement in the application for the TPPE Licence in 2016.  The plaintiff’s suggestion that Mr Au was involved in advising and acting for HKCMCL in that application process is without evidential basis.  In any event, Mr Au has specifically denied any involvement by him or the firm at the time, and there is no reason at all not to accept that evidence.  Again, I would point out that the plaintiff previously appeared to accept that, in his prior formulations of his complaint when made against ISSEP and HKCMCL.

95.  Those parts of the current claim which somehow assert involvement of the defendants in the application process are wholly without basis, and are bound to fail.  But I agree with Mr Whittington that the pleading itself does not directly assert that any of the current defendants applied for the TPPE Licence on his behalf without his authority.

96.  Similarly, the suggestion that the defendants “pre-mediated” (apparently meaning “pre-meditated”) the Note by providing false information to the Police is devoid of merit, and bound to fail.

97.  There is also the point that the pleaded case in the claim is (or appears to be) that the Note containing the First Statement is genuine, whilst the plaintiff has asserted that it is not genuine.

98.  Mr Whittington also submits that the words complained of by the plaintiff do not refer to him, and that they are not capable of bearing a defendant to meaning, as they simply refer to the risk of illegal activity at an event.  If this were the only point put forward, I do not think I would strike out the claim on this basis, as it might be arguable that it suggests the plaintiff would put on an event which might allow illegal activity.

99.  The Second Statement was also not made by any of the four named defendants, and there is simply no evidence to suggest otherwise.

100.  Strictly, Mr Whittington is correct when he points out that the pleading does not even state in which document the allegedly defamatory phrase is used.  But it seems to me to be clear from the context where those words are to be found.

101.  The words complained of are contained in a sealed Order of the Court.  That Order simply record the grounds upon which the Amended Statement of Claim dated 14 December 2017 were struck out.  Those grounds included that the Master had found that the claim as pleaded was “frivolous and vexatious”.

102.  Mr Withington has made the point that person making the Order is in any event covered by absolute privilege.  I agree.  But, in any event, the simple fact is that the Order is an order of the Court (even if a draft order was provided by Mayer Brown to the Court for its approval).  Further, as already stated, the Order merely records the Master’s decision that the pleaded claim in that action ought to be struck out, and for the reasons the Order states.  The Master’s decision, and the Order in its terms, were of course subsequently held by then DHCJ K Yeung as having been correct.

103.  Further, as I tried to explain to the plaintiff at the directions hearing preceding the substantive argument, the words “frivolous” and “vexatious” have a specific meaning in their legal context (which I have also set out above).  Those words are descriptive (in that legal meaning) of the claim as pleaded.  To put it another way, it is the pleaded claim that was described as being “frivolous and vexatious”, and those words do not refer to the plaintiff himself.

104.  Therefore, in so far as the plaintiff is concerned that the wording of the Order somehow “tags” him as being “vexatious”, that is a misunderstanding of the terms of the Order.  As Mr Withington accepts, and is obviously factually correct, the plaintiff has not (yet) been declared to be a “vexatious litigant”.

105.  There is simply no basis for the plaintiff to describe the Order as being “false”.

106.  I also accept that there is force in the submission made by Mr Withington that the claim in these proceedings falls to be struck out as an abuse of process under the doctrine of res judicata in the ‘wider sense’.  That doctrine is based upon an underlying public interest that there should be finality in litigation, and that a party should not be twice vexed in the same matter.  The public interest is reinforced by emphasis on efficiency and economy in the conduct of litigation, both in the interests of the parties and of the public as a whole.  Proceedings which can be demonstrated to mount a collateral attack on a previous decision can be an abuse of Court’s process.

107.  Of course, I accept that it would be wrong to adopt too dogmatic an approach to what should otherwise be a broad, merits-based judgment which takes account of the public and private interests involved and all the facts of the case.  The necessary focus is on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

108.  Throughout his skeleton submissions, the plaintiff makes various references to “defendant” or “defendants” which do not appear in context capable of being references to the defendants to this action.  Rather, they appear to be references to the defendants to his previous claims, which have been struck out or withdrawn (or, as to ISSEP, apparently settled).  This is consistent with the statements made by the plaintiff that this action is really about the cancellation of the dance music concert event at Cyberport.  It does look like the plaintiff is seeking in reality to re-litigate matters that have already been determined.

109.  Ultimately, it seems to me that these proceedings are brought without any proper foundation and they cannot possibly succeed.  The claim is frivolous and vexatious.

110.  As regards the second-named defendant, there is simply no allegation properly made against it.  Therefore, of my own motion, I would strike out the claim against it.

111.  As regards Mr McKellar, he plainly had no involvement in any of the matters which are said to give rise to the claim.  He is not mentioned in the pleaded claim.  Indeed, during the oral hearing, the plaintiff appeared to explain why he had named Mr McKellar as a defendant, which was simply that he had spoken to Mr McKellar about his concerns, and Mr McKellar had denied that any of the documents were forged or that any of the (other) defendants had engaged in any wrongdoing.  Joining him as a defendant for that reason seems to me to be a plain abuse.

H.  Result

112.  In the circumstances, I accede to the application to strike out the claim and to dismiss this action against all four named defendants.

113.  As to costs, I presently see no reason why the costs should not follow the event, so that the plaintiff should pay the defendants’ costs of the Summons.  Mr Withington seeks those costs on the indemnity basis, to be summarily assessed and payable forthwith.

114.  However, as the plaintiff is acting in person, and I have heard no argument from him in relation either to the incidence of costs, or the basis upon which it might be paid, or on whether it should be summarily assessed, or when any costs might be payable, I shall simply direct written submissions on costs in accordance with the following timetable: (1) the defendants shall make their costs application with supporting submissions and provide them to the plaintiff and to the Court on or before 8 January 2021; and (2) the plaintiff shall provide any response to the defendants (via HW) and to the Court on or before 15 January 2021.  Both sides costs submissions must be limited to no more than 8 pages. Unless I call for any further assistance by way of submission from the parties, I will then determine the question of costs on the papers.

I.  Postscript

115.  Despite the level of frustration and upset which the plaintiff undoubtedly has, I do not think there is any justification for the kinds of allegations which he has made.  Repeated, but groundless and evolving, allegations of forgery, threats to instigate proceedings (including criminal proceedings) against the defendants and Mr Au in particular, coupled with demands for very substantial sums of money do the plaintiff no credit.

116.  Even in his skeleton submissions filed for the hearing, the plaintiff accused the defendants of “perverting the course of justice, False accounting, forgery and deception with criminal tort”.  Those allegations go far beyond the pleading of his claim and are without basis.  He also suggested, without any basis to make any link to the defendants, that he has been “harassed by a team of unknown individuals” at various locations including his residence.

117.  The plaintiff’s previous attempt to obtain leave to seek a committal order against Mr Au personally was wholly misconceived – as I sought to explain in my Reasons for Decision dated 30 October 2020.

118.  Clearly, these various statements and actions on the part of the plaintiff seriously risk people reaching the conclusion that he is engaged in a ‘vendetta’ against Mayer Brown and its employees/partners, because that firm (and Mr Au) acted for a party against which the plaintiff launched litigation which was not successful, and which has led to consequences he finds unacceptable.

119.  In circumstances, I hope I will be forgiven for suggesting to the plaintiff that he might more usefully re-deploy his considerable energy to return to the business at which he says he is “expert” and in which (on his own telling) he enjoyed considerable and deserved success in return for his efforts.