SHIH MEI CHIN v. JOHNSHON, STOKES & MASTER

CACV 230/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 230 OF 1999

(ON APPEAL FROM HCMP 6699 OF 1998)

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J U D G M E N T

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Wong, J.A. (giving the judgment of the Court) :

1. On 26 July 1999, Mr Justice Cheung in the Court of First Instance dismissed the Plaintiff's appeal in respect of orders made by Masters striking out her claims in a number of actions. She now appeals against the judgment in relation to HCMP 6699 of 1998 .

2. On 11 December 1998, the Plaintiff issued an Originating Summons in which she claimed against Johnson, Stokes & Master (the 1st Defendant) and Mr Yau Tai Nin (the 2nd Defendant) for the delivery of documents prepared by the 1st Defendant relating to the allotment of shares of a company called "Great Light Ltd". This was HCMP 6699 of 1998 with which we are presently concerned. She also commenced two other actions in HCMP 7006 of 1998 and HCA 20691 of 1998. Mr Yau Tai Nin, Yau Tai Leung, Rocky Shek & Co. Accountants and Rocky Shek Secretarial Limited in connection with a company called Yen Hing Factory Ltd of which the Plaintiff and the Yaus were and still are shareholders and directors, the Plaintiff being a minority shareholder. In 7006 of 1998, she also sought the production of auditors' reports of Yen Hing. In HCMP 6699 of 1998, Mr YAU Tai Nin succeeded before Master Jones in striking out the Plaintiff's claim against him. The claim against Rocky Shek & Co. and Rocky Shek Secretarial Limited in HCMP 7006 of 1998 was struck out by Master Kwan. As regards HCA 20691 of 1998, the Plaintiff was absent at the hearing of an order 14A summons taken out by the Defendant and because of her absence, Master Poon adjourned the hearing of that summons. The Plaintiff then took out another summons before Master Lok who likewise dismissed that summons. The proceedings in HCA 20691 of 1998 are still in the interlocutory stage.

3. Mr Justice CHEUNG dismissed the appeals in HCMP 6699 of 1998 and HCMP 7006 of 1998 on the ground that the actions disclosed no cause of action and the purpose of the proceedings was solely for the discovery of documents which, as a general rule, is not permissible unless the proceedings fall within one of the exceptions. In the present case, they do not fall within any of the exceptions referred to by the judge in his judgment. We agree with the judge on this issue. The judge refused the Plaintiff leave to appeal out of time against the orders of Master Poon and Master Lok.

4. The Plaintiff filed a notice of appeal on 5 August 1999. The contents of this notice put the issues before us abundantly clear and I will read it out in full.

5. This concerns HCMP 6699 of 1998 which is the only action in which the Plaintiff seeks to appeal. The Defendant in this appeal is Johnson, Stokes & Master who is the 1st Defendant. This is the relevant part of the notice of appeal :-

"Striking out the actions claiming for delivery documents

Notes : I sought the Law Society's assistance in October

1998. The Law Society replied in writing asking me to make an appointment to see a duty lawyer. It was the lawyer who taught me to write such cause of action.

Now asking for an order to set aside the aforementioned Judgment/Order and applying for the following order :-

Only after correction by the Judge do I know that an action cannot be brought on a cause of action of demanding delivery documents. I now apply to alter it to being discriminated against and unfairly treated.

Now further apply for an order : an assessment of the costs of this appeal the 1st Defendant should pay to the Plaintiff.

If because of deliberate misleading by the duty lawyer legal costs are incurred, I shall hold the Law Society responsible.

Now further take notice that the grounds of appeal are :

At the hearing on 26th July Johnson, Stokes & Master did not ask to strike out my claim, indicating an admission of negligence. I apply to the Court of Appeal to adjudge that Johnson, Stokes & Master have the responsibility for negligence, leading to my mental suffering and economic loss. I shall claim against Johnson, Stokes & Master for HK$10 million. "

6. From the notice of appeal, it seems that the Plaintiff now accepts that the judge was right that she could not commence an action simply for the discovery of documents. Therefore, her appeal before the Judge was properly dismissed. The result of this means that there is nothing to appeal from the judgment of Mr Justice Cheung. The judge was right to dismiss her appeal. There is also no complaint in the notice of appeal that Master Jones was wrong to strike out her claim against Mr Yau Tai Nin or the judge was wrong to uphold the decision of the Master.

7. In the notice of appeal, she applies instead to amend the originating summons to an action, presumably, for damages on the ground that she had been discriminated against and unfairly treated. She also makes allegations against a duty lawyer assigned to advise her by the Law Society. She asks this Court to adjudge the 1st Defendant liable for negligence and award her damages in the sum of HK$10 million because as a result of the negligence of the 1st Defendant, she has endured mental suffering and economic loss.

8. Whatever grievances or complaints the Plaintiff may have, this is not the proper forum for her to ventilate them. These matters are completely outside the purview of her appeal.

9. We are satisfied that the allegations and complaints by the Plaintiff have no bearing on the issues that are before us.

10. On 15 October 1999, the 1st Defendant took out a summons to strike out the notice of appeal of the Plaintiff on the ground that the appeal is frivolous, vexations or an abuse of the process of the Court. In view of the decision which we have come to on the appeal itself, it is not necessary for us to deal with the summons to strike out, which is before us.

11. Accordingly, we dismiss the appeal of the Plaintiff with costs to the 1st Defendant.