ACTION NO. 2107 OF 2006
ACTION NO. 2831 OF 2006
BETWEEN
| | YUEN OI YEE LISA | Plaintiff |
| | and | |
| | PHOTOBITION HONG KONG LIMITED | Defendant |
____________
AND
HCA 239/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 239 OF 2007
______________________
BETWEEN
| | YUEN OI YEE LISA | Plaintiff |
| | and | |
| | WILLY CHENG | 1st Defendant |
| | STEVENSON, WONG & CO | 2nd Defendant |
| | MIRANDA LAM | 3rd Defendant |
______________________
AND
HCA 2742/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 2742 OF 2006
______________________
BETWEEN
| | YUEN OI YEE LISA | Plaintiff |
| | and | |
| | ROBERT LAM | Defendant |
______________________
(Heard Together)
Before : Hon Lam J in Chambers
Date of Hearing : 30 July 2007
Date of Judgment : 8 August 2007
______________________
J U D G M E N T
______________________
1. There are four actions before me at this hearing. All of them were commenced by the same plaintiff, Yuen Oi Yee Lisa [“Yuen”]. The defendants in the four actions are involved in respect of Yuen’s dealings in connection with the businesses of Robert Lam [“RL”], the defendant in High Court Action No.2742 of 2006 or litigations stemming therefrom. All the defendants applied for the striking out of Yuen’s claim against them in the respective actions. They also applied for a restricted proceedings order and restricted applications order against Yuen.
2. An interim RPO and RAO was granted by this court on 13 February 2007.
HCA 2107 of 2006
3. This is the action commenced first in time amongst the four actions. The defendant is Miranda Lam [‘ML”], a sister of RL. ML was a director in Robertlam Properties Limited and the superior of Yuen whilst she was working as an accountant in that company. In the Statement of Claim, Yuen framed her cause of action against ML by relying an alleged agreement made orally on 29 April 2006. Yuen alleged that ML had misappropriated certain monies from the company and deprived RL of the same. She said ML asked her (viz. Yuen) to conceal that from RL when she worked for the company in 1997. She said ML had promised to donate the misappropriated money to charity. She alleged there was a discussion between her and ML of the matter on 29 April 2006 and ML admitted the fraud. In paragraphs 15 to 16 of the Statement of Claim, Yuen formulated her claim as follows,
| “ | 15. | [ML] asked me to chase an amount of $560,000 from [RL] for charity purpose as all the monies and wealth of [RL] are coming from their dead father. |
| | 16. | According to the above admittances (sic.) and agreements made by [ML], I therefore issued my debit note No.RL/ML/10823/2006 of $560,000 on 2 May 2006. |
| | 17. | The cause of action to this action was to claim the outstanding settlement for breach of agreement made by [ML], despite the debit note was sent cared of [RL].” |
4. The debit note was addressed to ML care of RL and it is for the sum of $560,000 “as per conversation between [ML] and the undersigned in Dynasty Club on 29 April 2006, the following amount is charged to [RL] for charity purpose, for reason known to [ML].”
5. The prayer for relief was set out at the beginning of the Statement of Claim. It asks for the following relief for breach of agreement,
| “ | 1. | An amount of $560,000; |
| | 2. | General or punitive damages for breach of contract $3,600,000; |
| | 3. | All cost orders, bills of costs and/or legal costs and/or other expenses to have been incurred and/or suffered in respect of breach of agreement made by [ML].” |
6. Although Yuen had put down the name of RL as the 2nd Defendant in Statement of Claim, it had been crossed out when the Writ was issued together with it. The only defendant to this action is ML. That must be correct since there is no allegation by Yuen that RL was a party to this alleged agreement.
7. At the hearing, Yuen was initially adamant that she was claiming on a contract made on 29 April 2006. But paragraph 15 of the Statement of Claim did not plead any oral agreement. It only alleged ML told Yuen to chase RL for $560,000 for charity purposes. Yuen herself confirmed at the hearing that ML told her that when the meeting on 29 April 2006 ended unhappily. Yuen also informed this court at the hearing that ML told her she had no intention to pay $560,000 to RL nor to donate the said sum to charity. There is clearly no oral agreement for payment of $560,000 on 29 April 2006. On the submission of Yuen herself, the cause of action as set out in the Statement of Claim is clearly bad.
8. Yuen then contended that ML had made an agreement with her on 1 January 1997 when she asked Yuen not to report the misapplication of fund to RL. She alleged that ML promised to repay RL with the money when RL had financial difficulties. This is a materially different agreement from the one Yuen is now suing in this action.
9. It is also difficult to see how Yuen could have any right to sue for money due to RL. Yuen acknowledged she had no interest in the money. RL had made an affirmation in this action deposing to the fact that ML had not wrongfully taken any money from him as alleged by Yuen.
10. On the materials before this court, I am satisfied that there is no reasonable cause of action in this claim and the whole action is frivolous and vexatious. I accede to the application of ML to strike out the claim and dismiss the action.
HCA 2831 of 2006
11. This is not the action commenced next in time chronologically. However, it is a piece of satellite litigation stemming from the conduct of HCA 2107 of 2006. In HCA 2107 of 2006, ML referred to a fax from a Mr Tony Boulton who became the commercial director of Photobition Group for the Asia Pacific region after Robertlam Colour Limited was acquired by Photobition Hong Kong Limited in 1999. Yuen’s employment with Robertlam Colour Limited was terminated upon such acquisition. ML exhibited the fax from Mr Boulton to show that Yuen had the propensity of causing disturbance and harassment as she had done so to Mr Boulton when her employment was terminated.
12. The fax was produced as exhibit “LKSM-1” to the Affidavit of ML of 19 October 2006. The fax was signed by Mr Boulton on 28 September 2006. Since the document was produced by ML for the purpose of litigation, it was obviously published on a privilege occasion and Yuen could not sue ML for the publication of this document, see Wong Shui Kee Rogers v Victor LL Chu [2003] 1 HKC 125. Yuen is well aware of this principle of law as previous attempts by her to sue on privileged document had been struck out by courts on several occasions: see decision of Tang J in HCA 509 of 2004, 2 December 2004; judgment of Judge Wong in DCCJ 7079, 7080, 7081, 7184, 7185, 7527, 7528 of 2003, DCCJ 2702 of 2004, DCCJ 378 of 2005 and DCCJ 442 of 2005; judgment of Cheung J in HCA 96 of 2005 and a judgment of this court in HCA 509 of 2004, 26 July 2006. This is evidenced by her plea in paragraph 6 of the Statement of Claim in HCA 2831 of 2006.
13. In this action, viz. HCA 2831 of 2006, Yuen sued Photobition Hong Kong Limited for defamation in respect of the fax from Mr Boulton, see paragraph 3 of her Statement of Claim. Although initially Yuen named Mr Boulton and another shareholder or former shareholder of Photobition as 2nd and 3rd Defendants, she decided not to do so when the writ was issued. The only defendant to this action is the company.
14. I pause here to observe that Yuen has filed a writ with the names of Mr Boulton and the other aborted defendant crossed out. This is irregular and may cause confusion. Under our rules of court, amendments are done by crossing out of the amended parts of the pleadings and the writ. If a litigant decides not to sue a person before a writ is filed, he or she should prepare a clean copy without naming the person who is not defendant to the proceedings.
15. Further, another irregularity in Yuen’s pleadings is that she had on many occasions attached documents or letters to her formal pleadings. This court has explained to her many times the distinction between pleadings and evidence. Unless specifically authorized by the rules, a litigant should not attach documents or letters to his or her pleadings. She did not commit this mistake in the Statement of Claim in this action but she has done so in HCA 2107 of 2006 and HCA 239 of 2007.
16. Coming back to this action, Yuen tried to circumvent the immunity rule by asserting this in paragraph 5 of her Amended Statement of Claim,
| “ | …it was confirmed by Mr. Tony Boulton …that he never knew his statement was filed to the Court or used by [ML] for her civil proceedings. He thought he was just helping [ML] out all in a sudden under her request without knowing she was a defendant in her civil proceedings.” |
17. She pleaded in paragraph 6 of the Amended Statement of Claim that the statement proved to be a serious defamation against her by Mr Boulton to [ML]. She made it clear that she was suing in respect of the publication of the fax by Mr Boulton to ML instead of the use of such document by ML in court proceedings.
18. Even if her allegation in paragraph 5 is true, Yuen could not sue Photobition for defamation in respect of that fax. First, she did not have copy of the fax apart from the exhibit to ML’s affidavit. In paragraph 35 of her affirmation in opposition, Yuen said she was first directed to the fax “from the service of [ML]” but not from the court. It does not matter that the documents were not served on her by the court. It was an exhibit to an affidavit which ML served on her through solicitor. It is caught by the implied undertaking rule, see the judgment of this court in Yuen Oi Yee v Heath Company Limited HCA 509 of 2004, 26 July 2006.
19. Second, there is no legal basis for holding Photobition liable for the statement of Mr Boulton. When the statement was made, Mr Boulton was not an employee of Photobition although he had been employed by a UK company in the group. Yuen tried to explain why she considered Photobition should be vicariously liable in paragraphs 30 to 34 of her affirmation in opposition. In my judgment, the contention in those paragraphs are legally unsound and there is simply no arguable basis for establishing any vicarious liability. Further, if for some reasons, Mr Boulton could be treated as making the statement for ML as it was requested by her, the evidence clearly shows that the statement was obtained by ML for the purpose of HCA 2107 of 2006 and as such protected by the immunity rule.
20. Therefore, the claim for defamation has no merit and I order the Statement of Claim to be struck out and the action is dismissed.
HCA 239 of 2007
21. This is another piece of satellite litigation arising from the conduct of Small Claims Tribunal Cases Nos.SCTC 56397 of 2006 and 53527 of 2006. Again Yuen dropped some intended defendants from the action and the only remaining defendants are Willy Cheng, a lawyer who advised RL in the litigations with Yuen, his firm Stevenson, Wong & Co. Although she also named ML as a defendant in the writ, no claim has been pleaded in the Statement of Claim against ML.
22. In fact, in the Statement of Claim filed in this action, only two paragraphs were circled by Yuen. Having read the whole document, these two are the only paragraphs setting out Yuen’s claims against Willy Cheng and Stevenson, Wong & Co.
23. Regarding the claims against Willy Cheng and the firm, Yuen alleged they “instructed, aided and abetted” RL to insert a copy of the judgment of this court in HCA 96 of 2005 in a letter addressed to the Registrar of the Small Claims Tribunal dated 4 November 2006. She alleged this to be defamation. Further, Yuen sued in respect of a debit note issued by her to them in the sum of $50,000 for “my lecture given to him by giving him of a ‘Direction on Applications for RPO and RAO leave and disposal of written applications’ from Justice Lam given to me on 26 January 2006”.
24. One only needs to state the cause of action to see immediately that the action is vexatious and frivolous. Irrespective of the relevance of the judgment in HCA 96 of 2005 to the matters before the Small Claims Tribunal, there is simply no basis whatsoever for contending the attachment of that judgment in the letter of 4 November 2006 constituted defamation. The judgment embodies findings by this court against Yuen. If they are irrelevant, the Small Claims Tribunal should not take it into account. If they are relevant, the Tribunal could take it into account. I simply fail to see how a claim for defamation can arise, not to mention that the letter was written by RL to the Registrar for the purpose of legal proceedings and it is therefore privileged.
25. The claim based on the debit note is equally bizarre. The lawyer did not request any service from Yuen and Yuen was not qualified to give any lecture on law to a lawyer. Such claim is plainly an act of harassment on the part of Yuen.
26. The Statement of Claim is therefore struck out and the action is dismissed.
HCA 2742 of 2006
27. This is an action by Yuen against RL. She alleged that RL had entered into an oral agreement with her in October 1999 engaging her services in RL’s apartment businesses after the termination of her employment by Robert Lam Limited. Yuen claimed she had been working on the apartment business during her employment by that company and her duties, as pleaded by her in paragraph 3 of the Statement of Claim, were,
| “ | hunting for all tenants and handling all affairs of [RL]’s service apartments”. |
28. Yuen alleged that in consideration of her agreement to continue to work on the apartment business after the termination of her employment by the company, RL offered her a remuneration of “10% on overall rental income received by him or his related companies holding different properties including a property owned by his 3rd wife, Madam Ying Yeh in St Louis Mansion, from all tenants introduced and handled by me after I left his company” (see paragraph 7 of the Statement of Claim).
29. In paragraph 12 of the Statement of Claim, Yuen pleaded that from 1999 to 2003, “all tenants contributed for the related rental income were handled and hunted by me while I used to be the sole property manager … who was the one to sign and conclude all tenancy or license agreements …”.
30. Yuen alleged that RL did not pay her any agency fee and commission as promised and she is suing RL in this action for the following relief,
| “ | Agency fee or commission $300,000; |
| | Damages and injury to feelings $700,000.” |
31. The use of the expression “agency fee and commission”, the reference to tenants “introduced by” Yuen in the formula for remuneration and the description of her duties as “hunting for tenants” give rise to an impression that Yuen was claiming that her alleged services under the agreement were similar to that of an estate agent, viz. the finding of tenants for the service apartments of RL or his related companies.
32. RL issued a strike out application on the basis that all the tenants to the apartment business were located by property agencies and agency fees and commission were paid to such agencies. Documents were produced to prove the same. As regards Yuen, RL said these in paragraph 5 of his affirmation of 21 December 2006, “it was [Yuen] who requested me to allow her to help with the leasing of certain apartments of my companies, and she volunteered to do this on a gratuitous basis”. RL accepted Yuen had done works in terms of co-ordinating with the property agencies but he said those were works done for his companies who were the legal owners of the apartments.
33. In her affirmation in opposition to the striking out application, even though Yuen referred to her “doing the apartment business” (paragraphs 17, 20, 24, 48, 59 and 86) and her role as “manager” (paragraph 86), she did not state clearly what her duties in relation to the apartment business. Instead, she kept on referring to alleged remuneration package by reference to rental income of all tenants “introduced by me” in various paragraphs in the same affirmation.
34. In her written skeleton submission of 9 July 2007, Yuen put her case in this way at paragraph 57,
| “ | Yes, the estate agents introduced all tenants but I was the one to care all tenants after moving into the apartments because all apartments of [RL] included maids service for two hours daily.” |
35. It was only at the hearing on 30 July 2007 that Yuen spelt out clearly what she alleged to be her duties and responsibilities as manager of the apartment business under the oral agreement. She formulated them as follows,
| “ | (a) | Dealing with all agents and tenants; |
| | (b) | Looking after all repairs and maintenance; |
| | (c) | Looking after all laundry and domestic services of Demy to all tenants; |
| | (d) | Making the tenants happy; |
| | (e) | Encouraging all tenants to renew their tenancy after expiry; |
| | (f) | Looking after St. Louis Mansion for Madam Ying Yeh.” |
36. In the course of the hearing, Yuen recognized that the expression “agency fee and commission” was misleading and she sought to characterize her remuneration under the alleged oral agreement as manager’s fees. She applied for leave to amend the Statement of Claim to clarify the nature of her claim.
37. On behalf of the defence, Mr Mok SC submitted that the amendments could not assist Yuen because she was tied down by her own evidence. As mentioned, Yuen repeatedly said in her affirmation and pleadings that the remuneration was to be calculated by reference to income derived from tenants introduced by her.
38. As to that, Yuen explained that even though the tenants were actually introduced by the estate agencies, since she was the intermediary between RL and the agencies, she was the one who introduce the tenants to RL and the remuneration formula should be understood in this light.
39. Mr Mok also referred to other pieces of evidence contradicting Yuen’s case to contend that the claim of Yuen is a spurious one,
| (a) | Yuen’s letter of 26 November 2001 to Barbara Poon in which Yuen said she had assisted RL in letting out his apartments “without receiving a penny as reward”; |
| (b) | Yuen’s statement to the Immigration Officer made on 12 April 2007 in which she told the officer that she took up the employment of Demy for RL on a gratuitous basis; |
| (c) | Yuen’s statement to the Immigration Officer made on 16 April 2007 in which she told the officer that she knew nothing about the instructions or procedures regarding Demy’s cleaning of the apartments after she left the employment of the company as these were the responsibility of ML; |
| (d) | Yuen’s fax to the Immigration Officer on 18 April 2007 in which she stated that another sister of RL took up the duties relating to the apartment in the beginning of 2001 and assisted ML in distributing works to the Filipino maid. |
40. The defence also relied on the fact that there had not been any written demand by Yuen for her fees between 2003 and late 2006. Further, reference was also made to some correspondence with a view to show the relationship between Yuen and RL to support RL’s case that Yuen offered her services gratuitously.
41. Yuen had attempted to give some explanations for these attacks in her submissions and evidence. Since it is not appropriate for the court to conduct a mini-trial on papers in the context of a strike out application, I am not going to examine her accounts at length in this judgment.
42. It is well established that the court will only exercise its power to strike out a claim in a plain and obvious case. Whilst there are cases where the court can properly come to a clear conclusion that a claim by a plaintiff is without any solid basis and such claim should be struck out as frivolous and vexatious, I am not satisfied that Yuen’s claim against RL for her services under the alleged oral agreement regarding the apartment business falls within such category. Whilst the documents highlighted by Mr Mok are evidence unfavourable to Yuen’s case, I do not think they are conclusive and I do not believe the court should deprive Yuen of her day in court on the strength of these documents.
43. Based on the materials before the court, as far as I can see at this stage the dispute between Yuen and RL should focus on the following issues,
| (a) | What services had been provided by Yuen for the apartment business: RL accepted that Yuen had acted for his related companies in liaising with estate agencies but there could be dispute as regards the alleged duties and responsibilities formulated by Yuen in the course of the hearing; |
| (b) | Whether such services were provided by Yuen pursuant to the alleged oral agreement or on her own volition on a gratuitous basis; |
| (c) | If there was indeed an oral agreement, what were the terms of such agreement regarding the remuneration for Yuen regarding apartments leased through estate agencies. |
44. It is quite clear that there are weaknesses in the evidence of Yuen and some of those were highlighted by Mr Mok. Those are certainly points that could be made in a closing submission at the end of a trial. But I am not persuaded that Yuen’s claim is so plainly and obviously devoid of any factual foundation that it should be struck out at this stage.
45. I will grant Yuen leave to amend the Statement of Claim by adding the further paragraphs she put forward in writing at the hearing. I will deal with her other amendments (viz. those relating to the claims pertaining to the Filipino maids) under the next heading.
46. Having said so, I must also say something about the manner in which Yuen proceeded with this claim. I have already alluded to the misleading manner in which she formulated her case. Further, instead of focusing on the real issues, her evidence in opposition touches upon a lot of matters which are wholly irrelevant. I am not going to identify the same one by one in this judgment. Instead, I reiterate what I said in my judgment in Oh Jae-hoon Eugene v Richdale [2003] 4 HKC 318 at paras.15 to 17,
| “ | 15. | Mr Sussex described the affidavit of the Plaintiff as a document containing wild and intemperate allegations uncorroborated by any cogent evidence. I confess that I have great difficulties about this affidavit. It is not because of its length or the choice of emotional languages in its contents. Rather it is because it contains a lot of irrelevant material, matters which could not possibly have any bearing on this striking out application. The most objectionable parts in my view are that in many places the affidavit consisted of comments, opinions and submissions rather than deposition of factual matters. There are clear authorities that these had no place in an affidavit and should have been struck out. Obviously, the observations of Fuad JA in Nelson Delivery Service v Wong Kan Civ App No. 136 of 1986, were not heeded. |
| | | “ | Before I take leave of this case, I would draw the attention of those who advised Mr Wong Kan in drawing up his affirmation, of the necessity to avoid contentions and arguments in affirmations of the kind that we have before us, and to limit their contents to evidence. I have in mind the remarks of Roskill, L.J. and Megaw, L.J. in Alfred Dunhill Limited and another v. Sunoptic S.A. and another [1979] F.S.R. 337. At page 352, Roskill, L.J. said, this: |
| | | | “ | I hope it is not out of place to say at this stage that the affidavits filed on both sides are in at least two cases very much too long. Affidavits are designed to place facts, whether disputed or otherwise before the tribunal for whose help they are prepared. They are not designed as a receptacle for or as a vehicle for legal arguments. Draftsmen of affidavits should not, as a general rule, put into the mouths of the intended deponents legal arguments of which those deponents are unlikely ever to have heard. Legal arguments, especially in interlocutory proceedings, should come from the mouths of those best qualified to advance them and not be put into the mouths of the deponents. There has been much unnecessary paper in this case brought about by the inclusion of legal arguments in affidavits.” |
| | | Megaw, L. J. had this to say at page 373: |
| | | “ | There is one feature of this barrage and counter-barrage of affidavits on which I think that comment ought to be made. Some of the affidavits, in particular the second defendant's first affidavit, have been made the vehicle for numerous submissions of law and for forensic argument, wholly out of place in an affidavit, as it would be in the oral evidence of the witness.” |
| | 16. | Clough JA in Robert Lee Flickinger v Director of Immigration [1988] 1 HKLR 81 at p. 94E to F and Cons VP in R Leslie Deak v Deak Perera Far East Ltd [1991] 1 HKLR 551 at p. 560-1 gave similar warnings. The evil of the inclusion of such material in an affidavit is well demonstrated by this affidavit of the Plaintiff. The presentation of material in this affidavit makes it very difficult for this court to identify factual evidence which could properly be included in an affidavit from other improper material. Judicial time should not be wasted on winnowing the chaff from the wheat. I take this opportunity to remind practitioners of the principles set out in those cases and in the future, this court would have no hesitation in following the course suggested by Cons VP in appropriate cases. |
| | 17. | I would also add that in the present case, the Plaintiff was the sole proprietor of his solicitor firm and his firm was the solicitor on record acting for him when this affidavit was prepared. Obviously, he drafted this affidavit himself. In Paragraph 118 of his affidavit, he said, |
| | | “ | Writing this Affidavit is very painful and traumatic all over again.” |
| | | There are good reasons why a solicitor should not represent himself in his professional capacity. Had the Plaintiff engaged an independent lawyer to prepare this affidavit, I would seriously consider exercising my power under Order 62 Rule 8 to order the solicitor to bear the costs not only of the preparation of this affidavit but also the costs of the other parties involved in the perusal and response to such an affidavit. It would not be an excuse that a client insisted on saying certain things in his affidavit, solicitors owed a duty to the court and should pay attention to the observations made by the Court of Appeal in the cases mentioned above in the preparation and conduct of litigation (see Yau Chiu Wah v Gold Chief Investment Ltd, HCA 807 of 2001, Ma JA, 21.5.2003, Paras. 30-32).” |
47. Yuen also habitually wrote letters and emails to the other parties and their lawyers as well as the court and the contents of the letters very often do not serve any constructive purposes. Nor do they contribute anything to the progress of the litigation. Schedules 5 to 7 of her exhibit to her umbrella affirmation of 2 June 2007 speak for themselves in this regard. As Mr Mok quite rightly submitted, the solicitors have to spend much time in reading and considering these letters and emails with the clients and substantial costs have to be incurred thereby. I am firmly of the view that this manner of conducting litigation is oppressive and by itself constitutes abuse of the legal process. Such conduct must be stopped.
48. In the light of the foregoing and for reasons elaborated below, even though I conclude that Yuen should not be barred from pursuing her claim against RL at this stage, I shall make a RAO against her in this action. This means she could not lodge any further application in this action without RAO leave from this court.
49. Further, Yuen is forewarned that she should focus on the relevant matters (as identified above). In the future, if she should file documents having no bearing on the relevant matters or prolix documents containing substantially irrelevant materials, this court will exercise the power under Order 41 rule 6 to have them struck out and order the documents be expunged from the court file.
50. Regarding the harassment by correspondence, I believe the best way to deal with them is to send a clear message to Yuen that such conduct is futile and meaningless. The most direct way of putting that across to her is to let her know that such correspondence will not be read. Her objective of harassment will then be frustrated. Although a solicitor is usually expected to respond to correspondence from the other side, I believe we are dealing with an exceptional vexatious litigant. Given that a RAO is in place, coupled with a RPO regarding the commencement of fresh proceedings, this court will require Yuen to put everything in support of her application by way of affirmation setting out clearly and precisely (and without any irrelevant matters being included to confuse and complicate matters unnecessarily) before granting her leave. Further, given my above comments, this court will not expect the solicitors to read any correspondence from Yuen addressed to them and will not expect them to respond to the same unless such correspondence were sent pursuant to direction from the court. It is up to RL and his solicitors to decide whether they still need to consider any correspondence from Yuen that are not sent pursuant to specific direction from the court in the light of this indication. If they consider further measures should be in place to protect them in this regard, they can have liberty to apply.
51. As far as correspondence sent to this court is concerned, I repeat what I said in paragraphs 12 to 15 of my judgment in Secretary for Justice v Yuen Oi Yee [2006] 1 HKLRD 679 and paragraph 7 of my Direction on Applications for RPO and RAO leave given on 26 January 2006. Yuen should observe the same direction in applying for RAO leave in this action and applying for RPO leave generally. For her benefit, I attach to this judgment a copy of the Direction of 26 January 2006. I reiterate that Yuen should not make any application by fax and this is my last warning to her. If she persists in faxing documents to the court (including my clerk), I shall list the matter for hearing whether any injunction should be granted against her.
52. In my view, the above are proportionate measures to deal with the vexatious conducts of Yuen in this action. In so doing, I am echoing the observations by Ribeiro PJ in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 at para.101, in dealing with problems caused by vexatious conduct of litigation, “the court’s inherent jurisdiction enables it flexibly to develop such proportionate responses as may be appropriate.”
53. I therefore dismiss the application to strike out this action. Yuen shall file and serve her amended Statement of Claim adding those paragraphs she put forward in writing at the hearing by 20 August 2007. RL shall file a defence by 14 September 2007. I shall make a RAO against Yuen in this action.
Addition of claims of the Filipino maids to HCA 2742 of 2006
54. By a summons of 9 February 2007, Yuen apply to amend the Statement of Claim by adding new causes of action for claims of three Filipino maids, Dominga Estabillo Cuade (Demy), Precy Rose Fatima Cuade and Marilou Cachuela. Yuen alleged that she acted on behalf of these Filipino maids in advancing their claims arising out of their employment by RL.
55. Demy had entered into an employment contract with Yuen. But Yuen claimed that she only acted as a nominee for RL in signing that contract. The other two maids had not entered into any employment contracts with Yuen.
56. Yuen produced some letters of authorization signed by these maids authorizing her to represent them to pursue claims in the Small Claims Tribunal. Those letters do not authorize Yuen to pursue their claims in the High Court. Yuen also produced an affidavit by Demy to support her application. I do not think it takes her further. Yuen is not a qualified legal practitioner. Whilst Yuen may act as their agent in appointing lawyers to advance their claims, it would be unlawful for Yuen to provide legal services to these Filipino maids in pursuing their claims. In the present instance, the claims were drafted by Yuen and it can also be inferred that the affidavit of Demy was also drafted by her. No lawyer has been instructed to conduct the claims for the maids and Yuen intended to pursue the claims by herself. Drafting of legal documents for use in legal proceedings and the conduct of legal proceedings are legal services that should not be provided by unqualified person. Further, if the claims were claims by the Filipino maids, they should be brought in their names, viz. they should be the plaintiffs instead of Yuen.
57. Yuen alleged she had paid these maids a total sum of $17,127. Unless such payment was made under compulsion, Yuen could not be subrogated to their rights to claim against RL. There is no suggestion that Yuen made the payment at the request of RL or under compulsion.
58. Further, it was brought to my attention that Yuen assisted these maids to commence proceedings in the Small Claims Tribunal in their own names to claim the same sums from RL and ML. This is inconsistent with the allegation of Yuen that these maids had been paid by her.
59. For these reasons, I do not think the proposed amendments set out a bona fide claim by Yuen. The application for leave to amend under the summons of 9 February 2007 is dismissed.
60. I express no view on the merits of the maids’ claims in their own names in the Small Claims Tribunal in this judgment. However, solicitors for RL expressed concern that it is Yuen who actually brings proceedings in the names of the three maids. As I said, on the face of the documents filed in the Tribunal, the claims were made by the maids themselves. It is a matter for the Tribunal to consider whether Yuen should be permitted to assist them in pursuing their claims and if she is permitted to do so, the extent to which she would be permitted to participate, see Section 19(1)(d) of the Small Claims Tribunal Ordinance. In deciding whether to grant leave, it would be relevant for the Tribunal to take into account of the fact that Yuen has been repeatedly ruled by this court to be a vexatious litigant and the Tribunal has to weigh the assistance it can obtain from Yuen’s participation in the proceedings against the problems that she might cause in views of her previous conducts in other proceedings.
RAO and RPO
61. I have referred to some of the abuses of the legal process committed by Yuen in the context of other legal proceedings in my judgment in Secretary for Justice v Yuen Oi Yee [2006] 1 HKLRD 679 at paras.11 and 12. Mr Mok submitted that Yuen adopted similar modus operandi in these actions. I largely agree though I think she should be permitted to pursue her claims against RL. In one respect, she went beyond what she did in what I shall call the Heath saga. She actually dragged the lawyers in as defendants in one of these actions. I should mention that the High Court actions are not the only actions Yuen has commenced against RL and those associated with him. There have been several actions in the Small Claims Tribunal as well. But for the interim RAO and RPO granted by this court, there is every reason to believe that Yuen would have started many other actions.
62. The nature of the claims in the three actions that have been struck out and the manner in which Yuen prosecuted the other action clearly show that this court should impose some measures to curtail Yuen’s abuse of the legal process. In her tireless correspondence with the solicitors, she sometimes indicated that the purpose of all her litigation against RL and his associates was not for money but to show to the world that ML had cheated RL. On other occasions, she indicated that RL should settle with her instead of incurring substantial costs in fighting her and her tactics is to take every matter to the Court of Final Appeal to escalate costs. In either way, Yuen is misusing the legal process.
63. In the circumstances, I consider it is appropriate and proportionate for this court to make a RAO and RPO against Yuen. I shall make an order in terms of the draft order submitted by Mr Mok with the modification that Yuen should be allowed to proceed with her claim in HCA 2742 of 2006 subject to a RAO being granted in the context of that action. The proper way to prevent abuse in the Small Claims Tribunal cases commenced by the three maids is to invite the Tribunal to exercise its power under Section 19(1)(d) with caution. Since the three maids are not parties to these proceedings, I do not think it is appropriate to include their actions in the RAO and RPO.
64. The solicitors for the Defendants should submit a revised draft RAO and RPO for this court’s approval.
Costs
65. I make an order nisi that Yuen shall pay the defendant(s) their respective costs in the three actions that are struck out and dismissed. Such costs shall be taxed if not agreed.
66. Regarding the hearing on 30 July 2007, I order by way of costs order nisi that Yuen shall pay 4/5 of the costs of the defendants bearing in mind that though the strike out application in HCA 2742 of 2006 is unsuccessful, that is only because of an amendments put forward in the course of the hearing and Yuen’s conduct of that action has led this court to conclude that a RAO should be made even though she be allowed to pursue her claim. I also order that the costs of that hearing be taxed and payable forthwith.
| | (M H Lam)
Judge of the Court of First Instance
High Court |
| | |
Plaintiff, in person, present
Mr Johnny Mok, SC, instructed by Messrs Johnson, Stokes & Master, for the Defendants
HCMP 1087/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1087 OF 2005
______________________
| | IN THE MATTER OF SECTION 27(1) OF THE HIGH COURT ORDINANCE, CAP. 4 |
______________________
BETWEEN
| | THE SECRETARY FOR JUSTICE | Applicant |
| | and | |
| | YUEN OI YEE LISA | |
| | Alias LISA YUEN, LISA LEE and 袁靄儀 | Respondent |
______________________
HCA 96/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 96 OF 2005
______________________
BETWEEN
| | 袁靄儀 | Applicant |
| | and | |
| | 協峰電子有限公司 | Respondent |
______________________
HCA 509/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 509 OF 2004
______________________
BETWEEN
| | 袁靄儀 | Applicant |
| | and | |
| | 協峰電子有限公司 | |
| | (為美資公司HIG-DHP Barbados Ltd. | |
| | 全資附屬機構，前為Desa International LLC) | 1st Defendant |
| | 黎汝輝先生 | 2nd Defendant |
______________________
Before : Hon Lam J in Chambers
Date of Application : 16 January 2006
Date of Direction: 26 January 2006
________________________________________________
DIRECTION ON APPLICATIONS FOR RPO AND RAO
LEAVE AND DISPOSAL OF WRITTEN APPLICATIONS
________________________________________________
1. Since the making of the RPO and RAO on 28 December 2005, Yuen had made a number of written applications for RPO leave and RAO leave. I have refused some of them. Some “applications” were not in respect of matters that require leave. In the meantime, Yuen continued to bombard this court with copies of letters she sent to others. I have indicated that I would not read such letters. However, Yuen sometimes put forward a large amount of irrelevant materials in her RPO and RAO leave applications whilst she failed to annex the essential documents to support her applications. The disorderly manner in which Yuen put forward her leave applications made it very difficult for this court to process the same efficiently.
2. In the circumstances, there is a need for this court to prescribe how Yuen should make her leave applications. From now on, Yuen must comply with the directions set out below in making her written applications for RPO and RAO leaves. Non-compliance with these directions would result in delay in the processing of her applications. Further, the court may return a non-compliant application to her for rectification of the same before it would be considered by this court.
3. Each application should be confined to one subject matter. It has to be identified clearly at the front page whether it is an application for RPO leave or RAO leave. As regards RAO leave, Yuen must also identify clearly at the front page the existing proceedings in which Yuen proposes to make the relevant application.
4. If it is a RPO application, Yuen must comply with the requirements set out in Paragraphs 2 and 3 of the order of 28 December 2005. In particular, a draft of the document by which the fresh proceedings are intended to be commenced must be attached to the application. That document must be sent to the intended defendant at least 7 days before she filed the RPO application. Yuen must also state whether she received any response from the intended defendant and if she has, such response must also be attached to the application.
5. If it is a RAO application, Yuen must attach a draft summons or motion that forms the subject matter of the RAO application. If RAO leave is granted, Yuen can issue the summons or motion. Yuen should understand that the grant of RAO leave does not mean the grant of the relief set out in the draft summons or motion. Whether she would get the relief set out in the summons or motion will be a matter to be decided after the other parties affected have been heard. If RAO leave is refused, she cannot issue the summons or motion.
6. Evidence in support of the RAO or RPO leave applications should not be attached to the same document by which the application is made. If Yuen considers necessary to put forward evidence to support her RAO or RPO leave applications, she should file a separate document identifying clearly at the front page as evidence supporting a clearly specified RAO or RPO leave application. Copies of letters that Yuen sent to others would normally not be helpful and they should not be included as evidence indiscriminately.
7. The leave application document and the evidence must be sent to the court by post or in person. Yuen should not fax the same to this court. The fax machine of the court is not a facility by which a litigant can make an application. From now on, faxed document from Yuen will not be read. If Yuen continued to fax document to this court, they will be collected by my clerk who would make a record of the paper wasted as a result thereof. If Yuen should persist in faxing documents to the court despite this direction, this court will consider granting an injunction to restrain her from doing so.
8. The last observation applies equally to irrelevant materials sent to this court by Yuen, whether by fax or otherwise. I repeat what I have said in Paragraphs 12 to 15 in my Reasons for Decision of 9 January 2006.
9. I now deal with the “written applications” set out in the letter of 16 January 2006 from Yuen. The first item in that letter is “Transfer of DCEO 3 of 2005 and DCCJ 3524 of 2005 the District Court”. It is neither a RPO leave application nor a RAO leave application. The District Court have made orders for transfer in the respective proceedings.
10. The second item is “Leave to serve writ of summons of DCCJ 3524 of 2005 outside jurisdiction to four overseas companies”. I treat this as an application for RAO leave. Yuen did not identify the four overseas companies in her document. Insofar as she is referring to the four companies who are already 5th to 8th defendants to DCCJ 3524, they were or are the holding companies of Heath. I see no legal basis for Yuen suing them and the inclusion of them in the action is clearly vexatious. It is another attempt by Yuen to circumvent the dismissal of her claims against Heath in the earlier actions. Hence, RAO leave is refused.
11. The third item is “Leave to add Mr Steve Marcum and Miss Kathy Ford in HCA 509 of 2004 and DCCJ 3524 of 2005”. These individuals are not existing parties to those proceedings. To permit Yuen to apply to join them as additional defendants tantamount to permit Yuen to commence fresh proceedings. Yuen did not disclose any proper legal basis for suing them apart from saying that this would “save time and costs to appeal against my decision on the summons she issued in HCA 509 of 2005”. That can hardly be a proper reason for joining them as defendants. On the contrary, it is a clear abuse of process. Leave is therefore refused.
12. The fourth item is “Leave to amend statements of claim in HCA 509 of 2005 and DCCJ 3524 of 2005”. Yuen did not indicate how she proposed to amend the statements of claim. She seems to regard this item as ancillary to the second and third items. Given my decision on those items, leave is also refused regarding this item.
13. Yuen said in the letter I have yet to deal with her previous applications regarding Small Claim Tribunal proceedings against Lai and Kenny Lau and the judicial review “in order to seek legal assistance from the EOC”. She did not specify the document or documents by which she had made those applications. Insofar as Yuen is referring to her so-called written applications by her handwritten letter dated 31 December 2005, this court has already responded on 4 January 2006 as follows,
| “ | Please clarify the nature of the applications for which Ms Yuen seeks RAO or RPO leave”. |
14. Yuen did not come back with any proper applications. If she intends to pursue these matters, she has to comply with the directions set out above.
| | (M H Lam)
Judge of the Court of First Instance
High Court |