LEUNG KWAI LING v. HONGKONG LAND LTD AND ANOTHER

HCMP 699/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 699OF 2014

(On an intended Appeal from HCA Nos. 1582 of 2011, 366 of 2012, 1324 of 2012, 347 of 2013 and 432 of 2013)

________________________

________________________

________________________

JUDGMENT

________________________

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

1. On 25 March 2014, the applicant issued a summons seeking extension of time for 6 months to appeal against “all orders and amended orders of the masters and judges for the following cases”:

“A) To give extension of time for 6 months from date of this order, for appeal against all orders and amended order of the masters and judges for the following cases:

1) All orders of Dep Judge M Ng for hearing of 1.8.2013 for HCA 432/2013

2) All orders of Dep Judge M Ng for hearings of 1/8, 9/5 & 11/7 in 2013 for HCA 347/2013

3) All orders of Judge To for hearing of 6.2013 for HCA 347/2013

4) All orders of Master Hui and Dep Judge Lok in 2012 for HCA 366/2012

5) All orders of Dep Judge Lok in 2012 for HCA 1324/2012

6) All orders of Master K Lo and Judge Au Yeung in 2012 for HCA 1582/2011

…

(a) All orders of Dep Judge M Ng in 2013 and 2014 for HCA 432/2013

(b) All orders of Dep Judge M Ng in 2013 and 2014 for HCA 347/2013”

2. She also asked for all these orders to be stayed in the meantime.

3. On 26 March 2014, the court directed that the matter be listed for consideration whether the summons should be struck out as an abuse of process.

4. On 17 April 2014, the court gave directions for the filing of affidavit and written arguments.  On 5 May 2014, the Applicant filed an affidavit in support of her summons of 25 March 2014.  The Respondents filed an affidavit of their director on 9 May 2014.  The Applicant filed another affidavit on 28 May 2014.

5. On 5 May 2014, she took out another summons seeking the following relief:

“1) That all judgments and orders of Deputy Judge M Ng in case of HCA 347/2013 be set aside

2) That all judgments and orders of Deputy Judge M Ng in case of HCA 432/2013 be set aside”

6. On 7 May 2014, the court directed that the summons of 5 May 2014 shall not be heard together with the summons of 25 March 2014.  The hearing on 12 June will focus on considering whether the application for extension of time shall be struck out.  The court also indicated that it will give directions on the further conduct of the summons of 5 May 2014 after the disposal of the application for extension of time.

7. Notwithstanding the directions given on 17 April 2014, the Applicant did not lodge any written arguments by 29 May.  She only faxed her written arguments on 5 June after office hours.  She also faxed further submission on 8 and 10 June with a list of authorities.

8. The history of the matter between the Applicant and the Respondents is set out with great details in the judgment of Deputy High Court Judge Marlene Ng on 13 August 2013 in HCA 347 of 2013 and HCA 432 of 2013.

9. Earlier in time, the Applicant had sued the 2nd Respondent over the same subject matter in HCA 366 of 2012.  HCA 366 of 2012 was struck out by Master Hui.  After that she started a new action HCA 1324 of 2012 claiming for libel in respect of statements made in HCA 366 of 2012. Deputy High Court Judge Lok dismissed the appeal against the decision of Master Hui and struck out HCA 1324 of 2012 on 20 February 2013.  In the judgment of 20 February 2013, Deputy High Court Judge Lok also set out the dispute between the Applicant and the 2nd Respondent and explained at some length why her claims were doomed to fail.

10. As recorded in the judgment of 20 February 2013, there were earlier unsuccessful attempts by the Applicant to litigate with various parties, including the 1st Respondent, over the same subject matter in LDCS 1000 of 2003, HCA 1582 of 2011, HCA 1567 of 2011 and HCA 1568 of 2011.

11. We are not going to repeat what had been carefully set out in the judgments of the two Deputy High Court judges of 20 February 2013 and 13 August 2013.  Suffice to say that we have read them and we agree with the conclusions arrived at, viz the claims by the Applicant are obviously bad and unsustainable.

12. Further, it is also clear to us that even taking into account of her evidence filed in the present application, there is no reliable and cogent evidence to support her assertions of fraud, lies and forgery perpetuated by the Respondents.  For the reasons given by Deputy High Court Judge Ng in her judgment of 13 August 2013, we agree there is no merit in her contention on time bar.  She simply has no proper ground to seek to re-open the judgments of Deputy High Court Judge Lok and further claims on this subject matter are objectionable on the ground of res judicata and issue estoppel.  We have no doubt that the pursuit of the 2013 actions by the Applicant was an abuse of the legal process.

13. On 13 August 2013, Deputy High Court Judge Ng also made a RAO and RPO against the Applicant.  The RAO prohibits the Applicant from making further applications in the existing legal proceedings, viz LDCS 1000/2003, HCA 1582/2011, HCA 366/2012, HCA 1324/2012, HCA 432/2013 and HCA 347/2013 without first obtaining the leave of Deputy High Court Judge Ng.  The RPO prohibits her from commencing any further fresh new legal proceedings in the High Court, the District Court or the lands Tribunal concerning any matters involving or relating to or touching upon or leading to the existing legal proceedings without first obtaining leave from the judge.

14. The development after the judgment of 13 August 2013 was set out in the decision of Deputy High Court Judge Ng of 28 November 2013 dealing with the Applicant’s various summonses seeking leave to appeal. The judge dismissed those summonses.

15. On 2 December 2013, the Applicant issued Notices of Appeal in CACV 260 of 2013 and CACV 261 of 2013 appealing against the decisions of Deputy High Court Judge Ng of 13 August 2013.

16. On 9 December 2013, Kwan JA directed that the Applicant needed to have an extension of time for these appeals and no further proceedings will be allowed before extension of time is obtained.  On 12 December 2013, Lam VP directed that her application for extension of time should be proceeded by way of a fresh HCMP to be dealt with on an inter partes basis instead of a summons being issued in the two appeals.

17. Instead of seeking an extension of time to appeal solely against the decisions of Deputy High Court Judge Ng of 13 August 2013, the Applicant issued the summons in these proceedings seeking leave over a wide range of orders. She did not file any evidence in support of the application until 5 May 2014. 

18. In respect of the decisions in HCAs 366/2012, 1324/2012 and 1582/2011, she said in her affidavit of 5 May 2014 that she was “misled by the defendants into thinking I have no cause for action, and so did not do appeal earlier”.

19. In respect of the decisions in HCA 347/2013 and HCA 432/2013, she said time was wasted on her unnecessary application for leave to appeal before Deputy High Court Judge Ng.  She did not give further explanation for the delay in her affidavit of 28 May 2014.

20. The summons of 25 March 2014 did not identify specifically each of the orders against which the Applicant wished to seek extension of time to appeal.  As the Applicant did not at the same time file any affidavit in support of her application, the court is completely at a loss as to the basis on which she sought indulgence in terms of extension of time in respect of each order she wished to challenge.  As highlighted by Ms Ho, amongst the decisions in question, there was order which was made as long ago as 9 February 2012 in HCA 1582/2011.  As such, it is prima facie embarrassing and abusive.  Thus, directions were given on 26 March for having the matter listed for considering whether the summons should be struck out.

21. As recited above, since then the Applicant has filed affidavit evidence. 

22. As set out at the Hong Kong Civil Procedure 2014, para 59/4/9, the relevant factors for considering whether extension of time should be granted are:

(a)  Length of the delay;

(b)  Reasons for the delay;

(c)  The prospect of the intended appeal; and

(d)  The prejudice to the putative respondents if extension of time is granted.

23. In the present case, the length of the delay is substantial, particularly in respect of HCAs 366/2012, 1324/2012 and 1582/2011.  Further, the explanation offered by the Applicant for not appealing within time is wholly unacceptable. The judgment of Deputy High Court Judge Lok speaks for itself as to the merits of her case.  Her subsequent conducts in issuing fresh actions also demonstrate that she had not been misled into inaction.  Further, we agree with the judge that her claims are wholly devoid of merit and incurably bad.  Her intended appeal has no prospect of success.

24. In respect of HCA 347/2013 and HCA 432/2013, we do not accept her explanation for the delay.  As pointed out by Deputy High Court Judge Ng in the judgment of 28 November 2013, the Applicant had been informed as early as 27 August 2013 (and again on 4 September 2013) that in respect of some of the orders, the Applicant did not need leave to appeal.  In any event, for reasons already canvassed above, her intended appeal has no merit whatsoever.  In this respect, the present is different from The Darya Bhakti [2013] 2 HKLRD 926 on which she placed reliance.

25. In respect of the RAO and RPO, the litigation history speaks volume about the propensity of the Applicant to issue and conduct litigation in a vexatious manner.  She has put forward nothing to persuade us that those orders were made wrongly.  There is no prospect of success in the intended appeal against those orders.

26. In the circumstances, we refuse to grant extension of time to the Applicant to appeal and her summons of 25 March 2014 are dismissed with costs. 

27. Given the refusal of extension of time, her summons of 5 May 2014 cannot succeed. We propose to dispose of it on paper.  Parties may put in written submission on its disposal (as well as the disposal of CACV 260 and 261 of 2013) within 14 days.

28. We also order the Applicant to pay the costs of the Respondent and such costs are fixed on a gross sum basis at $80,000.