RIGHT TO INHERENT DIGNITY MOVEMENT ASSOCIATION AND ANOTHER v. HKSAR GOVERNMENT AND ANOTHER

HCMP2060/2008, HCMP2121/2008
& HCMP2332/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2060 OF 2008

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(HEARD TOGETHER)

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J U D G M E N T

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1. I intend to be short in my decision in this appeal.

2. Historically Mr Ma Pui Tung himself and as a representative of the 1^st plaintiff which is called Right to Inherent Dignity Movement Association (“the Association”) have a number of litigations in the past as follows:

(1) On 16 September 2008, Mr Ma and the Association applied for leave for judicial review in HCAL 104/2008 to challenge the constitutionality or lawfulness of the solicitors disciplinary scheme laid down in the Legal Practitioners Ordinance.

(2)  In HCLA 108/2008, Mr Ma and the Association applied again for leave to apply for judicial review to challenge, inter alia, the rule in O’Reilly v Mackman [1983] 2 AC 237 and the constitutionality of the leave requirement in s.22 of the Hong Kong Court of Final Appeal Ordinance. 

(3)  In HCAL 123/2008, Mr Ma and the Association again on 15 October 2008 took out a third application for judicial review. 

The case was heard before A. Cheung J on 22 October 2008.  On 31 October 2008, Cheung J dismissed all three applications and delivered a long and detailed judgment of 23 pages. 

3. However, in the 3 cases now before me, Mr Ma and the Association again took out three applications, namely: HCMP 2060/2008 on 20 October 2008, HCMP 2121/2008 on 29 October 2008, and HCMP 2332/2008 on 26 November 2008. 

4.

(i)  In the first one, HCMP 2060/2008 the plaintiffs again were seeking declarations in respect of the aforesaid disciplinary proceedings and certain bankruptcy proceedings, and the Secretary for Justice’s refusal to prosecute a Mr Koo. 

(ii)  In HCMP 2121/2008, the Association was seeking, inter alia, declarations that the Creditors Scheme under the Bankruptcy Ordinance is unconstitutional. 

(iii) In HCMP 2332/2008, the Association was again seeking a number of declarations and/or determinations including, inter alia, declarations that the HKSAR Government is in breach of its obligations under the Basic Law etc. in failing to consider and set up a “Constitutional and Human Right Court and the Constitutional and Human Rights Ordinance which should be modelled on the English Human Rights Act 1998” and “new and separate causes of action and proceeding for violation (would be violation) of Constitutional and ICCPR Human Rights” and then “s.7 of the Hong Kong Bill of Rights Ordinance and s.22 of the Court of Final Appeal Ordinance are unconstitutional”.

5. In short, the three original HCAL applications against HKSAR Government, Legislative Council, the Judiciary, Council of the Law Society have the similar subject matter as the three originating summonses now before me.  In my view, the three applications now in the originating summonses have already been decided in the three judicial review HCAL 104, 108 and 123/2008.  It is improper, to say the least, for Mr Ma and the Association to take out these 3 originating summonses now before again. 

6. First of all admittedly those issues raised concern with public law and there is no private right put forward between the plaintiffs and the defendants.  There is no lis between the parties.  I accept the two counsel’s submissions for the 1^st and the 2^nd defendants that the only proper way to challenge all these things, if one can challenge them at all, should be by way of judicial review. 

7. In explanation Mr Ma raised a number of points.  The main thing I gather from him is that those three judicial review applications were only on ex parte basis and there was no determination inter parte.  I am afraid this is a wrong perception of the decision.  The judicial review procedures provided an ex parte application first and the applicant would have to satisfy the judge that there is a subject matter capable of judicial review and that it is an arguable case.  It is not the case as suggested or submitted by Mr Ma today that since those applications were made ex parte and he was the only person appearing, he would become an adversary of the judge and the judge would become an adversary of him.  Therefore, as submitted by him, the procedure is unconstitutional, unlawful, the tribunal would be an unfair and bias tribunal.  That, I am afraid, is a wrong perception of the procedure.  The rationale of the procedure is to screen out cases which is a proper judicial review process and cases which are not.  If the judge cannot even be satisfied, on ex parte basis, that it is the case for judicial review, then the judge will have to dismiss the application altogether even without hearing argument from the other side.

8. I would like to point out further that there were quite a number of other applications in the past.  One salient case is on 16 December 2004, Mr Ma applied for leave to apply for judicial review to challenge the disciplinary proceedings conducted by the tribunal against him, that was HCAL 157/2004.  On 18 February 2005, Mr Ma asked the court to adjourn his leave application sine die with liberty to restore and the application was granted by the court on 21 February 2005.  In 2008 Mr Ma then restored this proceeding.  On 4 February 2009, Chu J heard the substantive judicial review in HCAL 157/2004.  On 16 February 2009, Chu J handed down her judgment dismissing the application on merits.  Again this is a 16-page judgment with detailed reasoning given. 

9. I am afraid Mr Ma has the habit of coming back with a number of applications after applications and the three originating summonses before me are those examples.  It is clearly an abuse of process of court to conduct litigation in such a way so I consider that Master Levy is absolutely right in striking out the three originating summonses. 

10. Mr Ma finally submitted that even Order 18 rule 19 is wrong because, as far as I understand (I must say that sometimes Mr Ma’s reasoning is really beyond me) he submitted that Order 18 rule 19 is unconstitutional as against Article 14 of ICCPR which provided that hearing should be by an unbias tribunal in a fair manner.  (I am afraid I cannot understand his reasoning.)  He gave an example of Order 14 summary judgment whereby the plaintiff applied for summary judgment and the defendant would have to meet every single point raised by the plaintiff, say the plaintiff said A, B, C and D then the defendant would have to meet all these issues.  He suggested in his submission that in Order 18 rule 19 when the plaintiff alleged A, B, C and D the defendant did not deal with A, B, C and D and just said it disclosed no reasonable cause of action.  I cannot understand his reasoning.  If the defendant takes out summons under Order 18 rule 19, obviously we will have to deal with all issues raised by the plaintiff unless the same is incomprehensible.  The defendant would have to point out squarely and clearly that everything alleged by the plaintiff disclosed no reasonable cause of action and the two parties actually meet in the dispute by making their submissions for a tribunal to decide.  I cannot see anything unfair or unconstitutional in Order 18 rule 19.  Be that as it may, Master Levy, in my view, is absolutely correct.  So the appeal is dismissed.

[Discussion on Costs]

Costs

11. The usual rule is costs should follow the event.  Mr Ma stated that it is a public interest litigation and so he should not bear costs for the defendant.  I am afraid in my decision it is only the plaintiffs themselves consider the application involved public interest.  The application discloses no reasonable cause of action and in my view there is no public interest involved, so costs should follow the event. 

12. The second point raised by Mr Ho for the Department of Justice is that Master Levy questioned the Association which is an unincorporated association.  She ordered Mr Ma himself to pay the costs.  Of course in the 1^st HCMP i.e. 2060, Mr Ma is the plaintiff himself and he appeared also as representative of the 2^nd plaintiff.  For the other two Mr Ma represented the Association.  He submitted that in this capacity he should not be asked to pay costs personally.  He cited the example of pressure group like Green Peace, etc.  I am afraid we cannot equate this kind of pressure group with the Association created by Mr Ma.  The main thing is, in the application itself, it disclosed no reasonable cause of action. It was Mr Ma’s creation to bring these proceedings so I agree with Master Levy that Mr Ma should bear costs personally. 

13. The order I am making is: costs to the defendants against Mr Ma personally in the three HCMP proceedings, HCMP 2060/2008, HCMP 2121/2008 and HCMP 2332/2008, to be taxed on gross sum assessment basis by a master of the High Court, if not agreed.

Restrictive Proceedings Order (“RPO”)

14. This is the end of the case but I am afraid there is one very important consequence of this appeal which I have to deal with and that is whether Mr Ma and the Association should be adjudged as a vexatious litigant for the purpose of Practice Direction 11.3. 

15. In my hands I have a list of Mr Ma’s litigations (see Appendix 1).  There were seven High Court actions in the past: from HCA 4231/2003.  More importantly there were nine judicial review applications made by Mr Ma and/or the Association starting from HCAL 421/2001, on 14 March 2001, all the way up to HCAL 123/2008, on 15 October 2008.  After these nine judicial review applications, we now have three originating summonses.  Putting it in a crude way, we have enough from Mr Ma and the Association and I asked Mr Ma why he should not be adjudged as a vexatious litigant for the purpose of Practice Direction 11.3 and therefore a restrictive proceedings order should be made against him.  The consequence is whenever he wants to start an action or file an originating summons he will have to ask for leave ex parte before a designated judge.

16. In sum Mr Ma has taken out seven High Court actions in the past, nine HCAL on judicial review, all of them had been dismissed by the court.  Four judges already have been involved and they are Hartmann J (as he then was), A. Cheung J, Lam J and Chu J.  Mr Ma and the Association as I have said in this case have taken out 3 judicial review applications.  Having been refused leave, three further originating summonses were taken out as aforesaid for the same subject matter. I consider both Ma and the Association are vexatious litigants. 

17. After hearing Mr Ma’s submissions, I consider that it is high time to make a RPO pursuant to Practice Direction 11.3 and therefore I hereby make a restricted proceedings order pursuant thereof against Mr Ma and the Association.  I will be the designated judge.  The 1^st defendant, the Secretary for Justice, will have the carriage of the order to be submitted for my approval.

Appendix 1
MA PUI TUNG

Appendix 1
MA PUI TUNG