FONG SO HO v. DISTRICT COURT JUDGE H.C. WONG

英譯本(English Translation)

CACV 42/2009

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 42 of 2009

(on appeal from HCAL NO. 16 of 2009)

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REASONS FOR JUDGMENT

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Hon Yuen JA (giving the Reasons for Judgment of the Court):

1.  On 4 March 2009, Mr Fong So Ho lodged an appeal from the order of Fung J made on 25 February 2009.  On 13 May 2009 after the hearing this Court dismissed the appeal for reasons as follows.

2.  The lengthy history of the background to this case appears as follows.

HCA 9421/1995

3.  In 1995 Mr Fong issued proceedings for a dishonoured cheque against the defendant in HCA 9421/1995.

Application for legal aid

4.  On 15 October 1997 Mr Fong applied for legal aid.  On 23 December 1997 and 18 July 1998, Mr Fong signed two documents relating to his financial situation for the purposes of applying for legal aid; those two documents referred to Mr Fong living in public housing and paying monthly rent of $1,111.  The Legal Aid Department approved Mr Fong's application for legal aid.  

5.  In fact in May 1997 Mr Fong's wife had acquired a Home Ownership Unit, and that Home Ownership Unit had been acquired through the exchange of the public housing unit where the Fongs used to live; after the acquisition of the Home Ownership Unit, the monthly mortgage was $7,000 and there was no further need to pay the rent for the public housing.

6.  In July 2000 after the Legal Aid Department became aware of the information above, it decided to withdraw legal aid from Mr Fong.

7.  On 11 September 2000 the Registrar of the High Court dismissed Mr Fong's appeal from the Legal Aid Department's decision to withdraw legal aid.

STCC 173/2002

8.  In 2002 in respect of the matters set out in paragraphs 3 and 4 above the Department of Justice launched criminal proceedings against Mr Fong for deception, the case number being STCC 173/2002.

9.  On 8 May 2002 Magistrate Bernadette Woo   dealt with STCC 173/2002, and found Mr Fong not guilty, and dismissed the charge.

DCCJ 4708/2004

10.  On 7 September 2004, the Department of Justice issued civil proceedings against Mr Fong in the District Court, case number DCCJ 4708/2004, requesting Mr Fong to pay legal fees in the sum of $78,899.90 in HCA 9421/1995.

11.  In those proceedings, Mr Fong filed a Defence, but when the Department of Justice issued an application for summary judgment, Mr Fong did not put in an affidavit in opposition, or provide the documents in STCC 173/2002.

12.  On 31 January 2005, Master Roy Yu ordered summary judgment in favour of the Department of Justice.  Mr Fong appealed.

13.  On 18 February 2005 Mr Fong's appeal in the District Court was heard by HC Wong DJ; from her written judgment (paragraph 8) Judge Wong held that Mr Fong:

“ …from start to finish, had only filed a Defence, and had never attempted to    file an affidavit in opposition, it would appear that from his Defence and from what he had said today, he indicated that his best ground of defence was STCC 173/2002 at the Shatin Magistracy, where at the hearing on 15 April 2002, he was acquitted, these documentary evidence was in the control of or    was available to the Defendant in the middle of 2002, but the Defendant has  never provided these documents in the present case.  Therefore I do not think  that by now this Court should give Mr Fong another opportunity to delay. Besides, as I have said above, the Shatin Magistracy criminal case has a different standard of proof from the civil proceedings today.”

(underling added for emphasis)

From what appeared above, in the hearing of the appeal from summary judgment (i.e. on 18 February 2005), Mr Fong had applied to Judge Wong to adduce the documents in STCC 173/2002 as evidence in DCCJ 4708/2004, but in the exercise of her discretion Judge Wong refused the application.  Judge Wong held that Mr Fong had not provided a good ground for defence, and dismissed his appeal from the order of summary judgment.

14.  Following that, Mr Fong applied for leave to appeal Judge Wong's order of 18 February 2005.  On 23 March 2005, Judge Wong refused leave to appeal.

HCMP 447/2005

15.  Following that Mr Fong lodged an application for leave to appeal to the Court of Appeal, case number HCMP 447/2005.

16.  On 1 June 2005, the Court of Appeal (Yeung JA and Tang JA (now Tang VP)) dealt with HCMP 447/2005.  According to what Mr Fong says, he provided the Court of Appeal with the documents in STCC 173/2002.  However the Court of Appeal refused Mr Fong leave to appeal, for reasons appearing in their Judgment of 14 June 2005.

17.  Thereafter, Mr Fong asked for leave to appeal to the Court of Final Appeal.  On 2 December 2005 the Court of Appeal refused leave to appeal to the Court of Final Appeal.

HCB 5653/2008

18.  In 2008, the Department of Justice petitioned for Mr Fong's bankruptcy on the basis of the judgment debt in DCCJ 4708/2004, the case number being HCB 5653/2008.

19.  On 29 September 2008, Barma J heard the Petition.  From the transcript of the hearing, Mr Fong told Barma J that he had not previously provided Judge Wong with the documents in STCC 173/2002.  Mr Fong said the following to Barma J (transcript page 4 G-O):

“Court Interpreter:  Now you have just heard what the lawyer told the    judge, in fact after the judgment in the District Court, you had lodged an appeal.

 Respondent:    I didn't know how to obtain the judgment in the Shatin Court to show the judge, according to reason, I am from the Mainland, I didn't know, I   have no culture, but I did tell the judge in a simple way.

 Court Interpreter:  Wait

 Respondent:    Yes

 Court Interpreter:  I want to ask you during the proceedings in the    District Court, did you tell the District Court judge that you had succeeded in the case in   Shatin?

 Respondent: I did, I said I had been adjudged to have   succeeded.

 Court Interpreter:  You did say that?

 Respondent: Yes, but she said…she said I did not provide the statement that I have succeeded in the Shatin Court for the judge to read, in effect that she    didn't know.

Court Interpreter:  The statement?

Respondent: Meaning the judgment

Court Interpreter:  Wait

Respondent: Because I didn't know how to get it, I didn't   know about it.

Court Interpreter:  But after the judgment was given and before you lodged an appeal, during that period you could  have obtained it.

Respondent: I didn't know how to, so eventually at the appeal, it was only then that the judge told me to get the testimony for them to see, but I went to get it first, by the time I applied for it, it was too late, it was too late.”

20.  As a result of Mr Fong's allegations above, Barma J permitted Mr Fong to adjourn the hearing so that he could apply to set aside the judgment of the District Court in DCCJ 4708/2004.  But in fact it would appear that Barma J was not aware that on 18 February 2005 Mr Fong had already attempted to adduce the documents in STCC 173/2002 before Judge Wong, but that application had been refused by Judge Wong (see paragraph 8 of the judgment of Judge Wong of 18 February 2005, reproduced in paragraph 13 above).  Moreover Mr Fong has admitted that he did not tell Barma J that in fact he had already supplied the documents in STCC 173/2002 to the Court of Appeal for their consideration.

21.  Following the hearing before Barma J, on 5 December 2008 Mr Fong applied in DCCJ 4708/2004 to set aside Judge Wong's judgment of 18 February 2005.

22.  On 19 December 2008 Judge Wong refused that application, the reason being that since she had already given her judgment and the order had been sealed, the District Court had no further jurisdiction to deal with the case.  If Mr Fong had fresh evidence, then it was necessary for him to apply to the Court of Appeal to adduce fresh evidence on appeal.

23.  In fact the so-called fresh evidence had already been referred by Mr Fong to Judge Wong on 18 February 2005 but had been rejected by Judge Wong. And on Mr Fong's appeal from that order of Judge Wong, Mr Fong had provided those documents to the Court of Appeal, but on the application for leave to appeal (HCMP 447/2005) the Court of Appeal refused leave to appeal on 14 June 2005.  Mr Fong did not obtain leave to appeal to the Court of Final Appeal.  Consequently, the issue of the production of documents in STCC 173/2002 has been finally determined.  The Court cannot deal with that issue again.

HCAL 16/2009

24.  On 17 February 2009 Mr Fong applied for leave to issue judicial review proceedings in HCAL 16/2009.  Mr Fong sought an order to set aside Judge Wong's order of 18 February 2005.  Fung J dismissed that application.

CACV 42/2009

25.  We take the view that Fung J's decision to refuse leave was correct.  Judicial Review is not the correct procedure for a litigant wishing to reverse a decision of a judge in legal proceedings, the correct procedure generally being an appeal.  Besides, from the background of the legal proceedings set out above, the documents in STCC 173/2002 that Mr Fong wished to adduce had already been rejected by Judge Wong in the exercise of her discretion on 18 February 2005, and Judge Wong's order had also been affirmed by the Court of Appeal on 14 June 2005 in HCMP 447/2005, therefore in any event, there is no chance of success in the judicial review application that Mr Fong wishes to issue.  Since the case has had a final determination, Mr Fong must accept this fact, and he cannot raise matters which had already been decided; to continue to do so is close to an abuse of process of the Court.

26.  Due to the reasons set out above, this Court dismissed Mr Fong's appeal from Fung J's order of 25 February 2009.