SECRETARY FOR JUSTICE v. YUEN OI YEE LISA

HCMP2390/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2390 OF 2008

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BETWEEN

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DECISION

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1.  Three summonses were made returnable at the hearing on 3 June 2010. They are: (i) the applicant’s summons filed on 24 May 2010 (“the applicant’s summons”); (ii) the respondent’s summons filed on 31 May 2010 (“the respondent’s 1^st summons”); and (iii) the respondent’s summons filed on 2 June 2010 (“the respondent’s 2^nd summons”).

The respondent’s 2^nd summons

2.  I deal firstly with the respondent’s 2^nd summons. By this summons, the respondent sought principally to:

(1)	Adjourn these committal proceedings sine dine pending the outcome of the investigations of the Prosecution Division of the Department of Justice; and
(2)	Vacate the hearings of the committal proceedings and her application for leave to appeal against an interlocutory order made on 22 March 2010

(collectively referred to as “the adjournment applications”).

3.  The summons also sought an order “To decide whether the Police or Immigration Dept or the SJ should keep the ‘Original’ forgery of Mr Robert Lam”.

4.  The applicant opposes the summons.

5.  The respondent’s reason for the adjournment applications is that the Prosecution Division of the Department of Justice are looking into three matters, namely, (i) her allegation of forgery against Mr Robert Lam, (ii) her allegation of perverting the course of justice against Miss Miranda Lam, and (iii) her allegation of making false affidavit in the respondent’s bankruptcy proceedings against Miss Anita Lam of Messrs JSM. The respondent claims that these matters are closely related to these committal proceedings. Further, the respondent says that there have been many new happenings and developments, including an order made by A Cheung J against her on 2 June 2010, a matter that I shall return to in the later part of this Decision. She also says that in the period leading to the resumed hearing of the originating motion in August 2010, she can issue new applications and lodge appeals, if her applications were refused, and she is at the moment making daily contact with the Police and the Immigration Department. The respondent suggests these committal proceedings should therefore be held in abeyance so as to avoid wasting the Secretary of Justice’s time and costs,

6.  In her affirmation in support of the respondent’s 2^nd summons, the respondent exhibited several letters she wrote and addressed to the Secretary for Justice, raising a number of matters, including requesting to prosecute Mr Robert Lam, Miss Miranda Lam and Miss Anita Lam. In reply to these and other letters from the respondent, the Secretary for Justice’s Office had written to say that the respondent’s letters had been referred to the Prosecution Division of the Department of Justice for consideration.

7.  These reply letters from the Secretary for Justice’s Office does not show that the Prosecution Division of the Department of Justice is conducting any investigations against Mr Lam and the two Miss Lam. There is nothing in the respondent’s affirmation that establishes there are pending investigations against these three individuals whether by the Prosecution Division of the Department of Justice or otherwise. The respondent’s suggestion that there are investigations into her allegations against these three individuals and that the outcome is pending is therefore illusionary.

8.  Further, there is no demonstrable relationship between the respondent’s allegations against these individuals and the issues to be resolved in these committal proceedings.

9.  No doubt, the respondent has carried out a number of activities, including writing and otherwise communicating with the Police, the Immigration Department and others to complain against Mr Lam and the two Miss Lam. The respondent has also written letters to the Court and judges raising a variety of matters. However, such conduct and activities of the respondent cannot begin to provide a justification for the adjournment applications. It is an untenable suggestion to say that withholding these committal proceedings will save the time and costs of the Secretary of Justice.

10.  These committal proceedings were commenced in 2008 by the Secretary for Justice in discharge of his public duties. It is both in the public interest and in the respondent’s interest that the proceedings should proceed expeditiously.

11.  The adjournment applications have no merits and should be dismissed.

12.  As to the other order sought in the respondent’s 2^nd summons (see paragraph 3 above), its relevance to these committal proceedings has been explained. I therefore need not move on to consider the merits of the application. This part of the respondent’s 2^nd summons is also dismissed.

13.  The parties agree that the costs of this summons should follow event. Accordingly, the summons is dismissed with costs to the applicant in any event.

The applicant’s summons

14.  The applicant’s summons is prompted by the various letters and faxes of the respondent, in which she indicated she wanted to amend and/or add to her affirmation in opposition to the committal proceedings filed on 29 April 2010. The applicant asks that the respondent be given time to make further/ supplemental affirmation before the applicant makes the reply affirmation and gives indication whether he requires to cross-examine the respondent, as directed by the order dated 22 March 2010 (as varied by the order dated 22 April 2010).

15.  The respondent confirmed at the hearing that she wished to correct and supplement her affirmation in opposition. She asks for 21 days to make her supplemental affirmation. Mr Ko for the applicant does not oppose.

16.  In the circumstances, there will be leave to the applicant to file and serve within 21 days from 7 June 2010 a supplemental affirmation. The time for the applicant to file and serve affidavit in reply, if any, is varied to 21 days thereafter. Similarly, the time for the applicant to write to the court to indicate whether he requires the respondent to be cross-examined is extended to 28 days after being served with the respondent’s supplemental affirmation.

17.  The parties have agreed that the costs of the applicant’s summons shall be made costs in the cause of these proceedings.

The respondent’s 1^st summons

18.  I turn finally to the respondent’s 1^st summons. In the summons, the following orders were sought:

“(1)	Written application for leave to RPO against JSM & Messrs King & Co.
(2)	Written application for leave to RAO in order to waive & cancel my two undertakings signed to Justice Lam in HCA1974/2007 on 18th Oct., 2007.
(3)	Written application for leave to RAO for the tape recorder taken in HCA 1974/07 on 18th Oct., 2007, to the Police.”

19.  At the hearing, the respondent explained that her summons is in fact applying for leave to institute proceedings against Messrs JSM and Messrs King & Co and leave to make applications in HCA 1974/2007 for retracting her two written undertakings and to hand over to the Police the tape recording of the hearing on 18 October 2007.

20.  The respondent further explained the leave applications were made pursuant to two restrictive orders made against her in HCA 2107 of 2006, namely, a restricted proceedings order (RPO) and a restricted applications order (RAO) both dated 8 August 2007. It is therefore clear that the applications made by way of the respondent’s 1^st summons are RPO and RAO leave applications.

21.  The respondent indicated she had served the summons on the Secretary of Justice, Messrs JSM, Messrs King & Co and the Commissioner of Police. No representative from the last three parties had appeared at the hearing. Mr Ko who appeared for the Secretary for Justice on the applicant’s summons and the respondent’s 2^nd summons, however, was not aware of this summons. He drew the court’s attention to the fact that no computer printout of the hearing date had been affixed onto the summons. The respondent explained that the listing officer on duty only initialled on the summons but did not affix any computer printout of the hearing date on the summons. This appears to be at variance with the usual practice of allotting a hearing date, but for the present purpose, it is not necessary to dwell deeper into the matter.

22.  For the reasons set out below, I am of the view that the respondent’s 1^st summons is fundamentally flawed and irregular.

23.  First, applications for leave to bring proceedings or applications by a person subject to RPO or RAO should be made on paper and without an oral hearing: see Practice Direction 11.3 at paragraphs 7(4) and 10(5). Although in the case of a RPO, the intended defendant should be given notice of the leave application and the intended defendant may, if so wish, make representations on the intended proceedings, there will be no oral hearing, let alone inter-partes hearing, on the leave application. The issuing of the respondent’s 1^st summons, which is an inter-partes summons, is plainly irregular.

24.  Second, under the RPO and the RAO to which the respondent is subject, the designated judges are Lam J and in his absence, A Cheung J. And in the event the designated judges are not available to deal with the leave application, the same shall be dealt with by another judge designated by Chief Judge, High Court. The respondent justifies making the application to me on the basis that because both Lam J and Chief Judge, High Court are on leave and as she had a hearing before me on 3 June 2010, she therefore made the leave applications to me. This cannot withstand scrutiny. Although Lam J is currently on leave, A Cheung J is not. The respondent could have made the RPO and RAO leave applications to his Lordship. The respondent argues that the order of Lam J dated 23 November 2007 in HCA 2107/2006 had left out reference to A Cheung J. This is incorrect. Paragraph 2 of the order dated 23 November 2007 made specific references to Lam J and A Cheung J as the designated judges.

25.  Even if none of the designated judges is available, it is for Chief Judge, High Court to designate the judge to deal with the RPO and RAO leave applications. Although Chief Judge, High Court is now on leave, the acting Chief Judge, who carries out the duties of Chief Judge, High Court during his absence, is the person to decide on which judge shall deal with the respondent’s leave applications. In short, it is not for the respondent to choose which judge to submit her RPO and RAO leave applications.

26.  Third and most fundamentally, there is no basis whatsoever for making the RPO and RAO applications in these committal proceedings. RPO and RAO leave applications ought to be submitted through the court registry. It is fundamentally flawed to circumvent the court registry and to make the leave applications in unrelated proceedings.

27.  The fact that the respondent had to appear before this court on 3 June 2010 on the applicant’s summons is no excuse for placing before this court and in these committal proceedings, RPO and RAO leave applications and in the form of an inter-partes summons.

28.  The respondent’s 1^st summons is dismissed.

Conclusion

29.  In summary, I make the following orders:

(A)	On the applicant’ summons dated 24 May 2010
	(1) Leave to the applicant to file and serve within 21 days from 7 June 2010 a supplemental affirmation. (2) The time for the applicant to file and serve affidavit in reply, if any, is varied to 21 days from being served with the respondent’s supplemental affirmation. (3) The time for the applicant to write to the court to indicate whether he requires the respondent to be cross-examined is extended to 28 days from being served with the respondent’s supplemental affirmation.
(B)	The respondent’s summons dated 31 May 2010 is dismissed.
(C)	The respondent’s summons dated 2 June 2010 is dismissed with costs to the applicant in any event.