HANG SENG BANK LTD. v. NG FA SHING

HCMP4167/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4167 OF 1997

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Reasons for Decision Handed Down in Court: 10 May 2000

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REASONS FOR DECISION¹

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1. The defendant Mr Ng applied ex parte shortly before 3:00 pm today, i.e. 7 April 2000, to vacate the hearing date for his appeal against Master Barnes' decision of 26 January 2000 to be heard by me on 11 April 2000. I informed him that such an application should be done inter partes. He refused to comply with my direction. My clerk then immediately phoned up the other side and within about 15 minutes, Mr Simon Wong of the plaintiff's solicitors appeared.

2. The matter was dealt with inter partes on short notice. I then indicated to Mr Ng that his ground of vacating the hearing date on 11 April would not be necessary if I hear the appeal at once. In other words, if I accede to his request to refix the hearing date of 11 April, I can refix it to be heard immediately so that the matter can be disposed of right away. He objected to this refixing of the hearing date for the appeal and behaved violently from the bar table. Bailiff and police were called in to calm him down but of no avail. I have, in the meantime, heard his objection and asked him to bespeak the appeal. I pointed out to him that the appeal only involved one point and that is whether Master Barnes was right to hear his application for a stay of execution on the order of possession in his absence.

3. Having heard him, I then pronounced the conclusion of my decision without giving full reasons therefor. It was deliberate since the defendant was behaving violently and obviously I consider it is not appropriate to pass oral judgment with full reasoning in the face of the defendant. The order I made in the case herein is that the appeal against Master Barnes' decision dated 26 January 2000 is dismissed. The following is my reason therefor.

4. The chronology of events of this case will explain the convoluted events which were all the doings of the defendant himself as follows :-

5. From the aforesaid chronology, one thing requires an explanation. The original hearing before Master Kwan was scheduled on 27 January 2000 while Master Barnes heard it on 26 January 2000 at 3:30 pm. What happened was on 19 January 2000 at 9:35 am, the defendant appealed against Cheung J's decision before Wong JA in chambers. This time, the defendant contended that he had to attend a physiotherapy on 27 January 2000 at 11:00 am. He urged upon Wong JA to refix the hearing date on 27 January 2000. Wong JA, after consulting the diary of the court, refixed the hearing date by bringing it forward to 3:30 pm on 26 January 2000 before Master Barnes.

6. The defendant objected severely to this refixing of hearing date but of no avail. He was actually warned by Wong JA that if he failed to attend, the matter would be dealt with in his absence. The defendant immediately, on 21 January 2000 at 4:30 pm, lodged a notice of appeal against the aforesaid decision of Wong JA and insisted that the Deputy Clerk of Court to the Court of Appeal should fix his appeal for hearing before 26 January 2000. He was asked to set out his reasons whereupon he immediately wrote a letter in front of the Deputy Clerk of Court at about 5:10 pm and insisted that the same should be shown to the Chief Judge of the High Court. That was Friday, 21 January after the office hour. Immediately on Monday, 24 January, the Chief Judge has decided that "The Application for further adjournment is refused. The hearing will be heard on 26 January 2000 at 3:30 pm as scheduled.".

7. On 26 January 2000 at 3:30 pm before Master Barnes, the defendant did not appear. He sent one Mr Cheung Siu Bun along who was said to be his former colleague. Master Barnes was informed by Mr Wong for the plaintiff as to what had happened before Wong JA, and that the defendant had already indicated that he would not attend as he had a Legal Aid Appeal that morning (which was dismissed). It is not surprising that Master Barnes, with all the knowledge of what had happened in the past to this defendant, decided that nothing could be achieved by an adjournment and the defendant had already been warned of the consequence. She then decided that she would deal with the summons in the defendant's absence.

8. Upon hearing Mr Wong for the plaintiff that :

(1) the defendant alleged that there was certain oral conversation between the manager of the bank, the plaintiff and the defendant, and the submission that no way the manager could agree to such an arrangement as alleged by the defendant;

(2) there was no consideration therefor;

(3) even if there were such a conversation, the "agreement" was not legally binding; and

(4) in any events, the same thing was not logical or reasonable.

9. Master Barnes dismissed the defendant's summons for a permanent stay of execution of the possession order, with costs to be taxed if not agreed, and all interim stay of execution was thus lifted.

My decision

10. From the chronology of events, it is absolutely clear to any tribunal that the defendant has abused the process of the court. In addition, he had behaved literally in an abusive manner before each and every court he had a chance to appear, including clerical staff of this building. The way he behaved in my court is contemptuous and threatening. The bailiff and the police have to be called in in order to prevent any further violent act to be done by him. He repeatedly said he was suffering from a severe stomachache. However, he shouted until the roof would fall down, so to speak.

11. It is true that he produced a medical appointment with the Eastern Hospital, whereby it is evidence that he would have to attend the same at 9:30 am on 11 April 2000 at the surgical unit together with a physiotherapy session at 3:30 pm that afternoon. It is evidence from his previous behaviour and doing that every time he failed to refix a date, he would thereafter produce a medical certificate saying that he would have to attend the Eastern Hospital either for his stomach problem or for his physiotherapy session. Say for instance, he originally appeared before Wong JA and produced a certificate saying he would have to attend hospital on 27 January which he had not informed Cheung J previously. After Wong JA's decision, he then produced another medical certificate which was shown to the Chief Judge that he would not be free on 26 January in the afternoon either.

12. On the other hand, from all his affirmations filed with the court, it has not been shown that he has any substance in applying for a stay of execution of the possession order at all, not to mention a permanent stay.

13. Further, it is quite clear from the papers before the court that he has let out his other parts of the property in question to various tenants and he has been collecting rents from them. However, for all these years since early 1997, he had been in arrear of the monthly instalment payment towards his mortgage loan which only commenced from 3 September 1995. In short, he derived benefits from occupying the premises together with all these rentals thereof but did not pay a single cent or just a few various small sums for all these years, and he is now asking for a permanent stay of execution of the order of possession. He has viciously considered that as long as his application or any appeal thereof has not been heard by a tribunal this interim stay of execution would continue and he would not have to worry about the possession order of the bank. This abusive way of delaying the evil date of judgment and execution thereof is one this court cannot tolerate and his behaviour exhibited by his abusive violent manner has made the situation worse.

14. No tribunal would proceed to hear a case in the absence of the other party lightly. However, in my view, Master Barnes must be right to proceed to hear his own application in his absence by reasons of the exceptional circumstances and the exceptional way he abused the process of the court. Exceptional circumstances and exceptional defendant require exceptional measures to deal with. Otherwise, the court is open to the abuse of her own process by this kind of defendant. The way the defendant behaved in my court is contemptuous to say the least. I would expressly reserve the right to deal with this contemptuous behaviour at a later date, if so required, and he should be warned by this judgment therefor.

15. Further, because of his abusive manner, I consider that it is right to impose a restriction in the way he has been abusing the process of the court. It is further hereby ordered that the defendant is not allowed to issue any application before a master or a judge in chambers without the leave of a master of the High Court. This is a preventive measure used in exceptional cases against people who abuse the process of the court and create a lot of works for the staff and judges for no good reason at all. The court's manpower is limited, and the court is responsible to the public at large to deal with litigants who has a genuine claim or defence, or at least a genuine cause for the decision of the court. If the court's time has been used to deal with this unnecessary, improper and irregular way of litigation, others must suffer severely since their chance and time of appearing before the court will be diminished and lengthened. For this simple application of stay of execution by a mortgagor in default, nearly all the Masters downstairs have been involved one way or the other together with four judges of the Court of First Instance and two judges of the Court of Appeal. Something must be done by invoking the inherent jurisdiction of the court to deal strictly with such litigant who has repeatedly abused the process of the court for his own benefits selfishly and improperly.

16. For the aforesaid reason, the appeal has been dismissed with costs to the plaintiff, to be taxed if not agreed. The plaintiff has already been further granted priority to execute the writ of possession and fi.fa combined with the assistance of the bailiff.