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HCMP71/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS No. 71 OF 2006
(ON AN INTENDED APPEAL FROM
HIGH COURT ACTION NO. 389 OF 2001)
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BETWEEN:
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YU MAN |
Applicant |
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and |
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PRICEWATERHOUSE COOPERS |
Respondent |
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and
HCCW 37/1998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMPANIES (WINDING-UP) ACTION No. 37 OF 1998
______________________
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IN THE MATTER of the Companies Ordinance Cap. 32 |
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and |
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IN THE MATTER of C.A. PACIFIC SECURITIES LIMITED (in liquidation) |
BETWEEN:
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THE LIQUIDATORS OF C.A. PACIFIC SECURITIES LIMITED (IN LIQUIDATION) |
Applicants |
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and |
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YU MAN |
Respondent |
(Heard together)
Before: Hon. Yuen JA (sitting as an additional judge of the Court of First Instance) in Chambers (open to the public)
Date of hearing: 23 June 2006
Date of Decision: 29 June 2006
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DECISION
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Hon. Yuen JA (sitting as an additional judge of the Court of First Instance):
1. There are two applications under Practice Directions 11.3 against Mr Yu Man, first by Pricewaterhouse Coopers for a Restricted Proceedings Order ("RPO") and secondly by the Liquidators of C.A. Pacific Securities Ltd (in liquidation) for a Restricted Applications Order ("RAO"). The proceedings commenced by Mr Yu which have led to these applications being made can be briefly summarized as follows.
(1A) HCCW 37/1998 - judgment 23/8/2002
2. Mr Yu has sought the delivery to him of 130,000 Sino Land shares ("the Shares") which had been acquired by C.A. Pacific Securities shortly before it collapsed in January 1998. His claim to the Shares has been set out in detail and analysed in my judgment in HCCW 37/1998 (23 August 2002) and in the judgment of the Court of Appeal in CACV 347/2002 (12 November 2003).
3. In my judgment of 23 August 2002, I held that the effect of the actions of the staff member of CA Pacific Futures Ltd in acquiring the Shares through CA Pacific Securities was that Mr Yu had become a cash client of CA Pacific Securities. The grounds for that decision appear in paras. 35 - 43 of the written judgment and I will not repeat them here.
4. I concluded that Mr Yu’s position was no different to that of other cash clients of CA Pacific Securities and consequently I ordered that his claim should be dealt with by the liquidators in accordance with the ‘cash client pari passu’ order (para. 44). Since there was a shortfall in Sino Land shares, 58,954 shares were available to be allocated to him out of the 130,000 shares originally claimed by him. However Mr Yu has not paid for any of the Shares.
(1B) CACV 347/2002 - judgment 12/11/2003
5. Mr Yu appealed my judgment to the Court of Appeal in CACV 347/2002. On 12 November 2003, the Court of Appeal dismissed Mr Yu’s appeal with costs.
6. Mr Yu applied for leave to appeal to the Court of Final Appeal but the Court of Appeal refused leave on 25 October 2005.
(1C) FAMV 32/2005 - order 22/12/2005
7. Mr Yu applied to the Court of Final Appeal for leave to appeal in FAMV 32/2005. On 22 December 2005 the Court of Final Appeal dismissed the application on the ground that it disclosed no reasonable grounds for leave to appeal.
(2A) HCA 389/2001 - orders 13/9/ 2001 & 10/3/2003
8. Meanwhile, on 22 January 2001 Mr Yu started a High Court action against Pricewaterhouse Coopers in HCA 389/2001. The claim was for delivery of the Shares which he alleged were unlawfully detained.
9. The action was struck out by the Registrar on 13 September 2001.
10. Mr Yu sought an extension of time to appeal from the Registrar’s order, but his application was refused by Chu J on 10 March 2003.
(2B) CACV 79/2003
11. Mr Yu filed an appeal against Chu J’s order on 17 March 2003 in CACV 79/2003 but no hearing date has been fixed up to now for reasons which appear in my judgment in HCMP 71/2006 (5 June 2006).
(2C) HCMP 71/2006 - order 5/6/2006
12. Mr Yu, having forgotten that he had filed CACV 79/2003, applied in January 2006 in HCMP 71/2006 for an extension of time to appeal Chu J’s order. These proceedings later developed into Mr Yu’s application for an extension of time to make an application to fix dates for hearing CACV 79/2003 and his application to amend the name of the defendant in HCA 389/2001.
13. In my judgment of 5 June 2006, I explained why an order for the extension Mr Yu sought was not necessary. I also refused his application to amend the name of the defendant.
14. HCMP 71/2006 is the platform for the present application for an RPO (and originally for an RAO, which I will discuss below).
15. I would also mention as a matter of completeness that Mr Yu has on 12 June 2006 filed a summons in HCMP 71/2006 to appeal my order of 5 June 2006.
(3) DCCJ 22757/2001 - order 4/6/2002
16. The third set of proceedings that Mr Yu had started in connection with his claim to the Shares was DCCJ 22757/2001 which he started on 27 December 2001 against Mr Blaauw, one of the liquidators of CA Pacific Securities.
17. On 4 June 2002, Deputy Judge A. Chan struck out the claim. Mr Yu’s application for leave to appeal was refused on 7 August 2002.
Costs
18. Apart from the above proceedings, Mr Yu has also taken part in a number of proceedings relating to costs orders made against him. Up to now, however, Mr Yu has not paid any of the costs orders made against him, whether they were gross sum orders or were costs which have been taxed.
Discussion
19. It is apparent from the matters I have set out above that Mr Yu has not accepted the judgment of 23 August 2002 even though it has been upheld on appeal by the Court of Appeal and even though the Court of Final Appeal has effectively ruled that that judgment is final. My judgment ran to 17 pages and was translated into Chinese. The Court of Appeal’s judgment ran to 16 pages and was also translated into Chinese. There should be no difficulty understanding the reasons for the judgment.
20. Mr Yu’s refusal to accept the judgment is shown by his recent revival of CACV 79/2003 through HCMP 71/2006. His repeated attempts to litigate and re-litigate matters which have been determined against him is one of the hallmarks of litigants who vexatiously abuse the process of the courts (Ng Yat Chi v Max Share Ltd and another [2005] 1 HKLRD 473 CFA, paras. 2, 48-50).
21. Mr Yu argued that the judgment of 23 August 2002 was null and void for breach of the Rules of the High Court as the proceedings in HCCW 37/1998 was for classification of clients and his was a special case as he was not a client of CA Pacific Securities. I need only refer to paras. 35 - 43 of my judgment in which I held that even assuming all the facts were as Mr Yu alleged, he was on legal analysis a cash client of CA Pacific Securities, and as the Court of Appeal said in CACV 347/2002, ‘the true issue ... is not whether Securities or the Liquidators were the custodian, whether bare or contractual, of the Shares, but whether the Shares could be identified as those acquired by Securities for the applicant’ (p14 of the English version, para. 27 of the Chinese translation). In any event, any arguments that Mr Yu may wish to advance to challenge my judgment should have been advanced before the Court of Appeal at the hearing of CACV 347/2002, and not thereafter.
22. Mr Yu also argued that an RPO and RAO were breaches of his human rights and of the Basic Law. The Court of Final Appeal has already held that these orders do not infringe human rights or the Basic Law (Ng Yat Chi paras. 134-137).
23. I am therefore satisfied that an RPO is an appropriate order to make against Mr Yu, subject to the following.
24. Although HCMP 71/2006 is an application in the Court of Appeal, this is just the platform for applications for an RPO covering applications in the Court of First Instance of which I am sitting as an additional judge. Mr Karliner accepts that the RPO does not extend to CACV 79/2003 or to the appeal from my order of 5 June 2006, and Mr Karliner has accordingly withdrawn para. 8 of the summons of 15 February 2006.
25. Further, I do not see the relevance of referring to HCCW36/1998 in the RPO as Mr Yu has never made any claims against CA Pacific Finance, nor can I see any conceivable ground for him to do so.
Order
26. I will therefore make an order in terms of para. 2 of the summons of 15 February 2006 (save that the reference to HCCW 36/1998 should be deleted) and in terms of paras. 4(a), 5, 6 and 7 of the said summons (save that references therein to para. 3 should be deleted). To avoid any possible misunderstanding, all references to "the Plaintiff" in the said summons should be replaced by "Mr Yu Man".
HCCW 37/1998
27. Out of an abundance of caution and for the same reasons, the Liquidators of CA Pacific Securities have sought an RAO in HCCW 37/1998.
Summons
28. Although the application for this RAO was originally made in HCMP 71/2006, I considered that this was not appropriate, and pursuant to Mr Karliner’s undertaking given to the court on 23 June 2006, a summons has been filed on 26 June 2006 in the actual proceedings in which the RAO is to apply, i.e. HCCW 37/1998. The application by the Liquidators for an RAO in the summons filed in HCCW 37/1998 is along the same lines as the application by Pricewaterhouse Coopers for an RAO in the summons filed in HCMP 71/2006.
Order
29. For the reasons I have given for making the RPO, I will make an order in terms of paras. 1-8 of the summons filed on 26 June 2006 in HCCW 37/1998.
Costs order nisi
30. I will make an order nisi that Mr Yu pay the Respondent in HCMP 71/2006 and the Applicants in HCCW 37/1998 the costs of, and including the hearing of, the respective RPO and RAO summonses.
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(MARIA YUEN)
Justice of Appeal
(Sitting as an additional judge of
the Court of First Instance) |
Mr Yu Man, Applicant in HCMP 71/2006 and Respondent in HCCW 37/1998, in person, present
Mr D. Karliner, of Heller Ehrman, for the Respondent in HCMP 71/2006 and the Applicants in HCCW 37/1998.
Appeal dismissed: see CACV253/2006 and CACV254/2006 dated 26 February 2007
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