LEUNG KWAI LING AND ANOTHER v. MA HO FAI AND ANOTHER

HCA 1225/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1225 OF 2013

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REASONS FOR DECISION

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1.  This is the defendants’ application to strike out the plaintiffs’ claim and for RAO and RPO against the plaintiffs. In the hearing on 29 July 2014, I allowed the defendants’ application. I now give my reasons.

2.  One of the plaintiffs, Madam Leung Kwai Ling (“Madam Leung”), had already commenced a similar action against the same defendants in HCA 1567 of 2011 (“the Earlier Action”).  In the Earlier Action, I struck out Madam Leung’s claim against the defendants.  In the written reasons handed down on 24 September 2012, I set out the background of the dispute between the parties and the reasons for striking out Madam Leung’s claim against the defendants.  I do not propose to repeat the same here.

3.  It is clear that Madam Leung is seeking to re-litigate the same cause of action against the defendants.  In the Earlier Action, Madam Leung claimed damages and compensation for negligence or breach of trustee’s duty against both defendants who were trustees in the auction sale of the property known as Lai Sing Court.  In the present action, the plaintiffs complain that the defendants were also guilty of fraud, misrepresentation and other wrongful conduct.  Although there are some new allegations, they are all related to the discharge of the defendants’ duty in the conduct of the auction sale of Lai Sing Court.  To me, the allegations are in substance the same as those made in the Earlier Action.  Even if there are not the same, which I do not accept it to be the case, there is no reason why Madam Leung could not have included all these allegations in the Earlier Action.   Further, although the other plaintiff, Mr Lee Yiu Kei (“Mr Lee”), was not a party in the Earlier Action, Mr Lee cannot offer any credible explanation as to why he had not joined with Madam Leung in commencing the Earlier Action.  Under such circumstances, both plaintiffs are estopped by the principle of res judicata in commencing another fresh action against the defendants, the subject matter of which is the same as that in the Earlier Action.  I therefore struck out the plaintiffs’ claim against the defendants.

4.  I then turn to the RAO and RPO application.  In this regard, I have no reservation in finding that Madam Leung is a vexatious litigant.  The computer record of the Registry shows that: (i) I had made a RPO against Madam Leung in HCA 1784 of 2011, HCA 1785 of 2011, HCA 194 of 2012, HCA 195 of 2012 and HCA 251 of 2012 on 16 November 2012; and (ii) DHCJ M Ng had made RAOs and RPOs against Madam Leung in HCA 347 of 2013 and HCA 432 of 2013 on 13 August 2013.  Further, the plaintiffs had issued more than 20 summonses in this action alone.  Unless restrained by the court, I have reasons to believe that Madam Leung will continue to abuse the process of the court by making or commencing unmeritorious applications and actions against the defendants.

5.  The defendants also ask for the RAO and RPO to cover the other plaintiff Mr Lee.  Prior to this action, Mr Lee has not commenced similar actions against the present defendants or other parties relating to the development project.  However, from the contents of the supporting affirmation filed on behalf of the defendants, Mr Lee should have known that Madam Leung had earlier commenced an identical claim against the defendants. Yet, he authorised Madam Leung to re-litigate the same cause of action on his behalf by signing the statement of truth in the statement of claim and giving written authorisation to Madam Leung to represent him in opposing the defendants’ application.  Under such circumstances, unless the RAO and RPO are to cover Mr Lee, there is a real risk that Mr Lee will continue to abuse the process of the court by making or commencing unmeritorious applications and actions against the defendants.  I therefore allowed the RAO and RPO to cover Mr Lee as well.

6.  The plaintiffs have also taken out some unmeritorious applications which were returnable before me in the hearing, for example, to strike out the defendants’ striking out and RAO and RPO applications and to strike out the defendants’ supporting affirmation.  For the avoidance of doubt, I dismissed all the plaintiffs’ summonses returnable before me in the hearing.

7.  Costs should follow the event, and I ordered the plaintiffs to pay for the costs of the action, including the costs of the defendants’ summons dated 13 May 2014 and all the plaintiffs’ summonses returnable before me in the hearing.  For the avoidance of doubt, the said costs order should not cover the costs of all the other summonses or appeals against masters’ decisions which were not returnable before me in the hearing.