YUNG MEI CHUN v. CHAN SING CHUEN

HCMP352/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 352 OF 2010

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J U D G M E N T

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THE PRESENT APPEALS

1. Before me there are two appeals brought by the plaintiff (“Ms Yung”) against two decisions of the learned Master Ng directing the Registry to refuse her two summonses dated 13 April 2010 and 14 May 2010 to be filed.  The convoluted history of Ms Yung’s litigation with the defendant (“Mr Chan”) has to be explained first before one can understand the decision herein.

BACKGROUND HISTORY

2. (i)   Mr Chan had earlier sued Ms Yung in DCCJ15756/2000 for $100,000 odd.

(ii)  After trial, when both sides were represented by solicitors, Deputy Judge Chan, on 31 December 2002, gave judgment for Mr Chan against Ms Yung.

(iii) Ms Yung applied for leave to appeal but her application was dismissed by Deputy Judge Chan.

(iv) Her further application for leave to appeal was dismissed by the Court of Appeal on 8 June 2005.  That was HCMP4776/2003.  One of her grounds of appeal was that Mr Chan had talked to and discussed with his solicitor whilst he was giving evidence.

(v) On 14 September 2007, Ms Yung paid Mr Chan two sums of $33,252.33 and $17,527.66, which were only parts of the judgment sum of $135,000.  By 17 September 2007, Ms Yung paid all the judgment debt of $135,000 and $50,000, being part of the costs.  According to Mr Chan, he had incurred costs of more than $500,000.

3. However on the same day on 17 September 2007, Ms Yung instituted DCCJ4126/2007 against Mr Chan on her allegation that she had a settlement agreement with Mr Chan on 25 June 2003 to the effect that Mr Chan would not pursue for the costs and balance of the judgment sum in DCCJ15756/2000 in consideration of Ms Yung’s cessation of pursuing against Mr Chan on his communication with his lawyer whilst he was giving evidence as aforesaid.  She therefore also claimed for the aforesaid sums she had paid to Mr Chan, i.e. totalling $185,000 together with interests allegedly incurred by her in the sum of $120,000 and costs of $560,000.

4. In DCCJ4126/2007 :

(i)  Ms Yung claimed that she had lost the original of the settlement agreement but she had a letter of Mr Chan dated 26 August 2003 signed by him in the name of Francis Chan.  In this purported letter of him, there is a reference to the alleged written settlement agreement dated 23 June 2003.

(ii)  However, Mr Chan had actually sent another letter to Ms Yung on the very day of 26 August 2003 but in that another letter, he had not referred to the alleged settlement agreement.  Instead he was objecting to Ms Yung’s defamatory statement that he “had committed an obstruction of justice”.  Mr Chan signed this letter in his English name of Chan Sing Chuen.  

(iii) Thus, the alleged signature of Mr Chan on the letter dated 26 August 2003 in the possession of Ms Yung (in (i) above) became an issue to be tried.

5. (i)  In this respect, there were numerous interlocutory applications and directions hearing resulting in the adjournment of the original trial dated of 2 August 2008.

(ii)  Further, between 8 September 2008 and 2 June 2009, there were eight hearings for directions, interlocutory applications and P.T.R.  The adjourned trial dates were fixed for 9 to 11 June 2009 and this had been fixed on 4 December 2008 at one of the aforesaid eight hearings.

6. (i)  On 26 May 2009, Judge Lok dismissed Ms Yung’s application for some third parties, such as Mr Chan’s employers, the Hong Kong Accountants Association, and credit card issuing bank, to provide signature samples of Mr Chan.

(ii)  On the next day, 27 May 2009, Ms Yung applied to Judge Lok for :

(a)  leave to appeal against his Decision on 26 May 2009; and

(b) adjournment of the trial date on 9 June 2009.

(iii) Judge Lok refused her application to adjourn the trial but adjourned her application for leave to appeal against his decision on 26 May 2009 until after delivery of judgment after trial as her aforesaid application for leave to appeal would not be necessary if she won the case after trial.

(iv) On 2 June 2009, Judge Lok also refused Ms Yung’s application to subpoena a witness to produce Mr Chan’s signature samples.

(v) One day before the trial, on 8 June 2009 at about 4:30 p.m., Ms Yung applied for an adjournment of the trial by fax on the ground that she had migraine.  She produced a certificate of a private doctor giving her sick leave from 8 to 12 June 2009.

7. (i)  On 9 June 2009, clerk to Judge Lok managed to contact Ms Yung and her husband by phone.  Her husband promised to attend court on 11 June 2009 to inform the court as to Ms Yung’s condition by that day.  Judge Lok therefore adjourned the trial for her husband (who was also a witness in the case) to attend court on 11 June.

(ii)  However on the next day (10 June), her husband faxed a message to the court and said that the court should not request a person who was not a party to the case to attend court.  He was just a witness.  He would not be free to do so as he had to attend a meeting on that day.

(iii) Both Ms Yung and her husband did not attend the hearing on 11 June and no further medical certificate was produced to Judge Lok.  Accordingly, Judge Lok proceeded to try the case in the absence of Ms Yung and dismissed her claim with costs to Mr Chan.

(iv) On the same day (i.e. 11 June 2009), Judge Lok also refused Ms Yung’s application for leave to appeal to the Court of Appeal from his decisions on 26 May and 2 June 2009.

APPEAL FROM JUDGE LOK TO THE COURT OF APPEAL

8. Thereafter on 25 June 2009 Ms Yung commenced HCMP1178/2009 and applied by a Notice of Motion to the Court of Appeal for leave to appeal against the decisions of Judge Lok. 

9. (i)  According to Ms Yung, now appearing before me, in HCMP1178/2009, she only applied for leave to appeal on Judge Lok’s decisions :

(a)  on 26 May 2009 refusing her application for some third parties to provide signature samples of Mr Chan; and

(b) refusing her application to adjourn the trial date of 9 June 2009; and

(c) on 2 June 2009 refusing her application to subpoena those aforesaid third parties.

(ii)  Ms Yung said that in HCMP1178/2009, she was not making an application for leave to appeal against Judge Lok’s decision on 11 June 2009 not to adjourn the trial but proceed to try the case in her absence resulting in a judgment dismissing her case with costs.  Her application was only restricted to the interlocutory applications resulting in the decisions of Judge Lok on 26 May and 2 June 2009.  (The relevance of which will be apparent hereinbelow.)

10. In my view that was not the case at all.  In the summons dated and filed on 26 June 2009 in HCMP1178/2009, she applied for an order that : “(1) the Plaintiff do have leave to appeal against the Orders of H.H. Judge Lok given on 11 June 2009.”

11. The Court of Appeal (per Tang VP and Yeung JA), dealing with Ms Yung’s aforesaid application, also did not consider that her application was restricted to her interlocutory applications but was in respect of the final judgment of Judge Lok on 11 June 2009.

12. On 4 September 2009, the Court of Appeal handed down itsjudgment.  After recounting the long history of litigation between Ms Yung and Mr Chan leading up to Judge Lok’s dismissal of Ms Yung’s case and His Honour’s further dismissal of her application for leave to appeal to the Court of Appeal, Yeung JA said in the judgment :

「29.  翁小姐不服陸法官的上述裁決，現向本庭提出上訴許可申請，希望獲准將案件提交上訴法庭審理。

30.  本庭對案件引發的多項非正審申請表示關注。案件涉及的爭議只有一項，即陳先生和翁小姐是否曾簽署過2003年6月25日的書面和解協議。有爭議的信上陳先生的簽名是否真確，雖然並非完全無關，但關連只屬從屬性，不涉及案件的主題。在該從屬性議題上，翁小姐作出多項非正審申請，過程中更多次涉及第三方人士，包括陳先生的僱主。翁小姐的做法，沒有足夠理據支持，對陳先生做成無謂困擾，屬濫用法律程序行為，法庭亦不應鼓勵。

31.  事實上，翁小姐提出的訴因，極不具說服力。她指在DCCC 15756/2000案審理期間，陳先生和其代表律師曾有過不當行為。假若她的說法屬實，以翁小姐表現的個人風格，她不可能不會立刻向主審法官投訴。翁小姐沒有這樣做而只在2004年7月向上訴法庭提出上訴許可申請時才首次提出該指控。更令人不解的是在向上訴法庭提出該指控時，翁小姐沒有表明曾在2003年6月25日有和陳先生達成一書面和解協議，更沒有將該書面和解協議或其副本呈堂。

32.  2003年8月26日，即翁小姐指陳先生發出有爭議信的同一天，陳先生曾向翁小姐發出過另一封信。考慮過該信件的內容，翁小姐指陳先生有在同一天向她發出有爭議信的說法，有違常理，亦不合信。

33.  再者，即使翁小姐的說法屬實，即陳先生確有和她達成書面協議同意放棄向翁小姐追討DCCJ 15756/2000案的得直判決，以換取翁小姐不就陳先生曾作出可構成防礙司法公正的行為向有關當局舉報，該協議亦不能執行，原因是執行該類協議有違公共政策原則。

34. 事件背景顯示翁小姐就訴訟延^誤甚久，其間亦作出無數的非正審申請。以本案的背景而言，該些申請不但是無需要的，更對陳先生造成一些不當的困擾。

35.  作為主審法官，陸法官有責任確保案件能適當及合時地交由法庭處理，而法庭及對方的時間都不會浪費。特別是在2009年4月1日，法庭實施新的民事審訊改革政策後，法庭不會容許訴訟任何一方在訴訟過程中有不適當行為包括故意延^誤，導致不公平情況出現。

36.  翁小姐被指拒絕支付投資恒生指數期貨合約的損失，她當然有權就該指控提出抗辯，但當抗辯失敗時，她要面對後果，包括抗辯所引致的訟費。她不能以一些完全不具說服力的論據逃避要面對其作為所導致的正常後果。

37.  本庭已考慮過案件的整體情況，包括翁小姐的索償性質及理據、案件的備審工序。本庭認為陸法官履行其案件管理的責任，將翁小姐的有關申請及案件撤銷是適當地行使其酌情權的決定，是適當合理的決定。本庭不應干預該酌情權的決定。

38.  翁小姐希望提出的上訴不具可爭抝之處，更無成功機會。

39.  本庭駁回翁小姐的申請。本庭的裁決是根據翁小姐的書面申請作出的。本庭認為翁小姐的申請完全缺乏理據，故根據《高等法院規則》第59號命令第2A(8)條，下令翁小姐不得根據第2A(7)條規則，要求法庭在雙方出席的聆訊中重新考慮其申請。」

13. It is absolutely clear that the Court of Appeal decided to dismiss Ms Yung’s application on the merit of her appeal (or, to be exact, the lack of it) after considering Judge Lok’s judgment of 11 June 2009 in detail.

14. (i)  In the meantime, Ms Yung also applied to Judge Lok to set aside his judgment of 11 June 2009 without informing him that she had already applied to the Court of Appeal for leave to appeal in HCMP1178/2009 against Judge Lok’s judgment of 11 June 2009.  The hearing before Judge Lok was 3 September 2009, i.e. just one day before the aforesaid judgment of the Court of Appeal.

(ii)  When Mr Chan got a copy of that judgment on 4 September 2009, he immediately informed Judge Lok of the same.

(iii) Judge Lok therefore directed the parties to file and serve further submissions on/before 9 October 2009, which were received by him there and then.

(iv) Thereafter, on 29 October 2009, Judge Lok handed down his written decision and dismissed Ms Yung’s application to set aside Judge Lok’s judgment on 11 June 2009.  On Mr Chan’s application under DCCJ5756/2000 to resume the taxation of his costs thereunder, Judge Lok acceded to Mr Chan’s application.

15. (i)  Before me, Ms Yung alleged that Judge Lok’s Judgment of 11 June 2009 and Decision of 29 October 2009 are full of “mistakes” and “faults”.  That is a matter for the Court of Appeal.

(ii)  She also alleged that the Court of Appeal Judgment of 4 September 2009 is also tainted with “mistakes” and “faults”.  That is a matter for the Court of Final Appeal.

16. (i)  On 22 September 2009, Ms Yung applied to the Court of Appeal to set aside the aforesaid judgment and orders of HCMP1178/2009 dated 4 September 2009.

(ii)  On 5 October 2009, Tang VP, in giving the judgment of the court, considered this application was a clear abuse of process and dismissed Ms Yung’s application.

(iii) At the same time, the Court of Appeal also made a provisional Restrictive Application Order (“RAO”) from making any further application to that court.  Ms Yung was allowed to make representation to the court regarding the intended RAO within 14 days thereof.

(iv) On 2 November 2009, Tang VP, upon reading Ms Yung’s lengthy submission of 21 pages together with an Exhibit 1 of 88 pages, made a RAO prohibiting Ms Yung from making any further application to the Court of Appeal, save with the leave of Tang VP, being the designated judge or another judge designated by the Chief Judge, High Court.

17. From the papers before me, Ms Yung had applied to the Court of Final Appeal for leave to appeal against the Court of Appeal decision of 4 September 2009 under FAMV57/2009 and the same is pending the determination of the Appeal Committee.

HCMP352/2010

18. Judge Lok, by his judgment of 29 October 2009 dismissed Ms Yung’s further application as aforesaid.  His Honour on 20 February 2010 further refused Ms Yung’s application for leave to appeal to the Court of Appeal.

19. Ms Yung then commenced this HCMP352/2010 on 24 February 2010 by summons asking for leave from the Court of Appeal to appeal against the order of Judge Lok given on 10 February 2010.

20. On 26 March 2010, the Court of Appeal (Tang VP and Kwan JA) decided that Ms Yung’s application was an abuse of process.  Her application was accordingly dismissed.

21. On 23 April 2010, Ms Yung tried to file a Notice of Motion for leave to appeal to the Court of Final Appeal from the aforesaid Decision on 26 March 2010 of the Court of Appeal.  Tang VP informed Ms Yung through his Lordship’s clerk by a letter dated 7 May 2010 that the Court’s decision is final as provided under section 14AB of the High Court Ordinance, Cap. 4.  That being the case, Ms Yung is not entitled to file the Notice of Motion dated 23 April 2010.  That should be the end of Ms Yung’s Notice of Motion of 23 April 2010 and also HCMP352/2010.

(1) The 1^st appeal before me

22. However, Ms Yung tried to file a summons dated 13 April 2010 for an oral hearing before the Court of Appeal.  Master Ng directed the Registry to refuse filing of this summons and Ms Yung was informed of Master’s aforesaid decision by a letter dated 23 April 2010 in the following wordings :

“    No further direction is required since the order of Court of Appeal dated 26.3.2010 and the order of Master Ho dated 7.4.2010 still stand.  Since the Court of Appeal has decided that the Plaintiff may not request under O. 59 r. 2A(8) to have the determination on 26.3.2010 be reconsidered at an oral hearing inter parties, Registry should refuse filing for any summons for such purpose.”

23. Then Ms Yung filed a Notice of Appeal dated 7 May 2010 against the aforesaid decision of Master Ng on 23 April 2010, and the same was fixed to be heard by me.  This is the 1^st appeal herein.

(2) The 2^nd appeal before me

24. On 23 April 2010, Ms Yung tried again to file a Notice of Motion for leave to appeal to the Court of Final Appeal from the aforesaid decision of the Court of Appeal on 26 March 2010 (per Tang VP and Kwan JA).  

25. By a letter dated 7 May 2010, clerk to Tang VP informed Ms Yung that Tang VP has made the following order :

“    On 23 April 2010, the Plaintiff purported to file a Notice of Motion for leave to appeal to the Court of Final Appeal from the decision of this Court given herein on 26 March 2010 and for costs to be paid by the defendant.  However, our decision of 26 March 2010 refusing leave to appeal to this Court is final.  See section 14AB of the High Court Ordinance, Cap. 4.  That being the case, the Plaintiff is not entitled to file the Notice of Motion dated 23 April 2010.”

26. On 14 May 2010, Ms Yung tried to file a summons to set aside Tang VP’s Order of 7 May 2010.

27. By a letter dated 17 May 2010, Ms Yung was informed by the Appeals Registry that Master Ng has directed that the Appeals Registry should refuse filing of Ms Yung’s summons dated 14 May 2010.

28. Ms Yung, on 19 May 2010, then file a Notice of Appeal against Master Ng’s decision on 17 May 2010, refusing her to file her summons dated 14 May 2010.  This is the subject matter of the 2^nd appeal herein. 

DECISION

29. By reasons of the aforesaid matters, it should be absolutely clear to anyone in his right frame of mind that Ms Yung is abusing the process of court again and again.  She litigated over and over the same subject matter with no regards to the due process of the court.  She has taken every opportunity to appeal against nearly all the decisions of the courts.  When she was informed that her application by summons or Notice of Appeal cannot be filed as the same subject matter had already been determined by the court, she would take out a Notice of Appeal against such a “decision”.

30. In my view, Master Ng’s two decisions on 23 April 2010 and 17 May 2010 must be correct.  Ms Yung is not allowed to file summons after summons, Notice of Motion after Notice of Motion, Notice of Appeal after Notice of Appeal, trying to set aside any earlier decision or otherwise seeking leave to appeal when her substantial appeal has already been dismissed.

31. In fact when she was asked at the hearing as to why she did not seek leave to appeal from the Court of Final Appeal in respect of the aforesaid Court of Appeal decision of 26 March 2010, she informed me that she had, rather unsurprisingly, already done so.  She then, and only then, produced a letter from the Court of Final Appeal dated 4 June 2010 from the Acting Registrar as follows :

“1)  The Applicant must first apply to the Court of Appeal for leave to appeal to this Court under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’).  Only when the Court of Appeal refuses leave, the intended Applicant can then apply for leave from the Court.  (see s. 23(1) & s. 24(3) of the Ordinance);

2)    Pursuant to s. 14AB of the High Court Ordinance, the decision of the Court of Appeal in refusing leave to appeal was final.

3)    Arising out of the same or substantially the same subject matter, you have already lodged a leave application under FAMV57/2009.  The same is pending determination by the Appeal Committee.  Your intended application is incompetent and amounts to an abuse of process.  The same will not be entertained by the Acting Registrar;

4)    The Registry is directed to return the intended application to the Applicant.”

32. Thus it is clear that the Appeal Committee is dealing with her substantive appeal from the decision of the Court of Appeal under HCMP1178/2009.  Her intended application for leave to appeal to the Court of Final Appeal under HCMP352/2010 is considered to be “incompetent and amounts to an abuse of process”.

33. Under HCMP352/2010, i.e. the proceedings herein, any further application or any further appeal from any decision of any three levels of the High Court is just another abuse of the court process. 

34. I understand there is a hearing before the Court of Appeal on 2 July 2010 under HCMP 1178/2009.  The Court of Appeal may consider whether a Restrictive Proceedings Order (“RPO”) should be granted against Ms Yung in addition to the RAO previously granted against her by the Court of Appeal as aforesaid.  This would prevent Ms Yung from vexing Mr Chan any further by abusing the court process.

CONCLUSION

35. These two appeals before me are dismissed with costs to the defendant, to be taxed, if not agreed.