WONG YU CHO ROLLY t/a MARCO POLO and CHINA OVERSEA TECHNICAL DEVELOPMENT v. LOUIE WONG

DCCJ 145/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 145 OF 2007

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DECISION

1.  This is the Defendant's application by summons issued on 2 February 2007 ("Summons") for the Statement of Claim endorsed on the Writ of Summons issued on 9 January 2007 to be struck out and for the action to be dismissed as against the Defendant, on the grounds that they disclose no reasonable cause of action against the Defendant, are frivolous and vexatious, and are an abuse of the process of the court. 

2.  According to the Statement of Claim, the Plaintiff's claim against the Defendant, Senior Government Counsel of the Department of Justice, is for damages sustained by the Plaintiff as a result of "untruthful submissions" allegedly made by the Defendant to mislead the court at a hearing before Master J. Ko held on 13 October 2006 ("Hearing") in DCCJ 4092 of 2006 (" 4092 Action") and DCCJ 4093 of 2006 ("4093 Action"), and as a result of "untruthful information" allegedly provided by the Defendant to mislead the court at the Hearing. 

3.  The claim arises out of the fact that the Defendant had conduct, as Senior Government Counsel, of the 4092 Action and the 4093 Action, which are also proceedings instituted by the Plaintiff but against Newton Chan, another Senior Government Counsel of the Department of Justice and against Chiu Kwok Tsan, a tax assessor of the Inland Revenue Department, respectively.  The Hearing relates to the applications made by the defendants in the 4092 Action and the 4093 Action for a joint hearing of the defendants' striking out summonses issued in the two actions.   The Defendant appeared at the Hearing as Senior Government Counsel for the defendants in the 4092 Action and the 4093 Action.  After hearing the Defendant’s submissions as well as the objections made by the Plaintiff at the Hearing, Master Ko made an order that the two striking out summonses issued in the 4092 Action and the 4093 Action be heard together.

4.  On 1 December 2006 and 22 December 2006, the Plaintiff lodged appeals against Master Ko's orders, which appeals were heard by HH Judge Marlene Ng on 15 January 2007, the decision having been handed down on 18 January 2007 ("Judgment").  The learned judge dismissed the appeals in so far as they relate to Master Ko's orders that the two striking out summonses be heard together.  Judge Ng considered that the factual background of the two actions were substantially similar, and expressly pointed out that she disagreed that the orders of Master Ko were made because he was misled by the Defendant, as counsel for the defendants in the 4092 Action and the 4093 Action.  The Judge explained in the Judgment that there are common questions of law /fact which render it desirable for the striking out summonses in the two actions to be disposed of at the same substantive hearing, as it will save time and costs, and avoid unnecessary delay.  The learned judge also pointed out that she did not consider that hearing the two summonses together will create any injustice, or cause any embarrassment at the substantive hearing, as the Plaintiff had alleged and argued at the hearing of the appeal before the learned judge.  She further considered as irrelevant the Plaintiff's allegation that he would suffer prejudice in having the two striking out summonses heard together because he would be disadvantaged in issuing future legal proceedings against the relevant parties. In short, the learned judge had considered and extensively dealt with all the Plaintiff's arguments made in opposition to the application for a joint hearing of the two striking out summonses, when she considered the application afresh by way of appeal .

5.  I have not been referred to any appeal made by the Plaintiff against the Judgment, the time for appealing having long expired. 

6.  The Plaintiff chose instead to commence the present action against the Defendant on 9 January 2007, to claim again that the Defendant had misled the court at the Hearing, and that Master Ko had decided on a joint hearing of the two striking out summonses in the 4092 Action and the 4093 Action as a result of having been misled by the Defendant's misleading submissions and the untruthful information provided by the Defendant at the Hearing. 

7.  In my judgment, the Plaintiff clearly has no cause of action against the Defendant, who appeared as Government Counsel acting on behalf of the defendants in the 4092 Action and the 4093 Action.  A litigant and his legal representative owes no duty to his adversary in relation to the conduct of the proceedings, and no action for breach of duty of care can be brought by a litigant against his opponent (Business Computers International Ltd. v. Registrar of Companies [1988] Ch 229). 

8.  This is a plain and obvious case that the Plaintiff's claim is unsustainable.  The Statement of Claim is obviously unarguable, and it is impossible for the claim to succeed.  I am satisfied that the Statement of Claim discloses no reasonable cause of action against the Defendant.

9.  On the authority of Hunter v. Chief Constable of the West Midlands Police [1982] AC 529, Counsel for the Defendant argues that the present action is an abuse of process as the Plaintiff's action amounts to a collateral attack upon a final decision made against the Plaintiff, by virtue of the Judgment.  Counsel for the Defendant also argues that it is an abuse of the process of the court where an issue was resolved in an earlier action between the plaintiff and one party, and the plaintiff seeks to raise the same issue in a subsequent action against another party (Cosby v. Government of the USA [2003] 3 HKC at 695I to 695G).

10.  Having been satisfied that the Plaintiff’s claims against the Defendant are, on the face of the Statement of Claim, unarguable as disclosing no cause of action, I do not think it is necessary to go into much of the alternative ground advanced on the basis of either a collateral attack upon a final decision of a court of competent jurisdiction, or issue estoppel.  It is clear that the Plaintiff had full opportunity to make his submissions before the court, before Master Ko and before HH Judge Ng, as to why the two striking out summonses should be heard separately, but the application for a joint hearing was granted notwithstanding his objections.  Judge Ng clearly held in the Judgment that the court has an unfettered discretion in determining whether applications in two or more proceedings should be heard together, after considering all the circumstances, and clearly found that Master Ko was not misled by the Defendant at the Hearing.  There is no appeal against the Judgment, but there has not been full argument before me as to whether the Judgment, being an exercise of discretion in an interlocutory proceeding where the learned Judge emphasized that the orders for a joint hearing relate to case management, constitutes a final determination of an issue giving rise to a res judicata.

11.  As I am satisfied that the Statement of Claim discloses no reasonable cause of action against the Defendant, it should be struck out and the action should be dismissed with costs including the costs of the application by Summons, to be taxed if not agreed.

12.  Although the hearing before me was conducted in Chinese, as the Plaintiff's skeleton submissions for the hearing and his affirmations were all prepared in English, this Decision is in the English language.  If necessary, the Plaintiff may apply for a Chinese translation of this Decision.