YUNG MEI CHUN, JESSIE v. MERRILL LYNCH (ASIA PACIFIC) LTD

HCMP 244/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 244OF 2016

(ON AN INTENDED APPEAL FROM DCCJ NO 3068 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  For the reasons canvassed in our judgment of 25 August 2015, the Plaintiff’s action in DCCJ 3068 of 2013 must come to an end as leave to renew the writ had been properly refused.

2.  Prior to our judgment, the Plaintiff had actually made another attempt by an ex parte application by affirmation of 13 July 2015 before Judge A Li for the renewal of the writ.  The learned judge dismissed the application on 29 July 2015 in light of his decision of 11 February 2015.  The decision of 11 February 2015 was the decision in respect of which the Plaintiff failed to obtain leave to appeal from us in August 2015.

3.  By another summons of 11 August 2015, the Plaintiff tried to obtain leave to appeal against the decision of the judge on 29 July 2015. 

4.  On 2 September 2015, the judge dismissed that summons in view of our judgment of 25 August 2015.

5.  On 15 September 2015, the Plaintiff issued another ex parte summons seeking to set aside the order of the judge of 2 September 2015.  The ground of the application was that the ex parte application for renewal of writ had not been tried or argued.  The Plaintiff also said that she did not have the reasons for the decisions on 29 July and 2 September 2015.

6.  That ex parte summons was heard on 3 November 2015 when the Plaintiff did not turn up at the appointed time.  It was dismissed by the judge.

7.  The Plaintiff then issued a summons on 30 November 2015, asking for leave to appeal against the decision of the judge of 3 November 2015.

8.  The summons of 30 November 2015 was heard by the judge on 18 January 2016.  Again the Plaintiff did not turn up for the hearing.  The judge gave full reasons for refusing leave to appeal in his written decision of 18 January 2016.  The judge was of the view that the Plaintiff was abusing the process of the court.  He also made an order that the Plaintiff would not be allowed to issue another summons in DCCJ 3068 of 2013 without the leave of the court.  In effect, the judge made a restricted application order [“RAO”] though he did not use the form provided under Practice Direction 11.3 [“PD 11.3”].

9.  By a summons of 1 February 2016, the Plaintiff applied to this court for leave to appeal against the orders of 3 November 2015 and 18 January 2016.  

10.  As the order of 18 January 2016 is primarily an order refusing leave to appeal, the substantive order which can be the subject matter of an application for leave to appeal is the order of 3 November 2015 and the RAO made on 18 January 2016.

11.  It is plain to us that the Plaintiff’s ex parte applications and summonses referred to in the earlier parts of this judgment are vexatious applications.  She had failed to obtain a renewal of the writ and her attempts in appealing against the judge’s refusal to renew the writ had failed.  Any attempt to re-litigate this question is an abuse of process.  As we have said in our judgment of 25 August 2015, due to her failure to renew the writ before the expiry of the limitation period, the action had come to an end.  All further applications in the action were futile and they have occasioned waste of judicial resources.

12.  We are of the clear view that the judge was plainly right in dismissing the summons of 15 September 2015.  He was also right to issue the RAO on 18 January 2016.  Though he should have used the form prescribed in PD 11.3, as the action had been concluded and no further application could be properly made in the action, the irregularity in not using the prescribed form did not matter. 

13.  We therefore refuse to grant leave to appeal and dismiss the summons of 1 February 2016.  We are also of the view that the application of the Plaintiff is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request our refusal of leave to be reconsidered at an oral hearing inter partes.

14.  Since the application is made on ex parte basis (as it was before the judge), we make no order as to costs. 

15.  In view of the propensity of the Plaintiff in abusing the process of the court, we also direct that she may not lodge further representations to this court without leave and any representations from her without leave would be returned to her without being read.