CACV 118/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 118 OF 2013
(ON APPEAL FROM HCMP NO. 2829 OF 2012)
________________________
| BETWEEN | | |
| | YUEN OI YEE LISA（袁靄儀） | Plaintiff |
| | and | |
| | NGAI NGOK PANG（魏岳鵬） | 1st Defendant |
| | NGAI YU LING MONY（魏羽鈴） | 2nd Defendant |
________________________
| Before: Hon Yuen and Kwan JJA in Court |
| Date of Hearing: 3 March 2015 |
| Date of Judgment: 18 March 2015 |
_________________
J U D G M E N T
_________________
Hon Kwan JA (giving the judgment of the Court):
Background
1. On 17 December 2012, Ms Yuen Oi Yee Lisa (“Ms Yuen”) issued an originating summons against Ngai Ngok Pang (“Mr Ngai”) and Ngai Yu Ling Mony (“Ms Ngai”) in HCMP 2829/2012. This originating summons and three summonses issued by Ms Yuen on 2, 7 and 22 January 2013 were heard by G Lam J on 2 May 2013. Ms Yuen confirmed before the judge that she would abandon all the claims and reliefs sought in the originating summons save for a claim for an injunction to restrain Mr Ngai from “disturbing [Ms Yuen’s] daughter and family members for the rest of tenancy period which will be ended on 30 June 2013 or even after”. She also sought the costs of the originating summons.
2. At the material time, Ms Yuen’s daughter was the tenant under a tenancy agreement with Mr Ngai and Ms Ngai in respect of premises in Le Prestige, 1 Lohas Park Road, Tseung Kwan O, New Territories. Mr Ngai and Ms Ngai had brought three successive proceedings in the Lands Tribunal to recover vacant possession and arrears of rent. The judgment in one of the proceedings was the subject of an appeal in CACV 96/2013.
3. In his judgment handed down on 5 June 2013, the judge dismissed Ms Yuen’s claim in the originating summons as well as the three summonses she issued. He ordered her to pay the costs of Mr Ngai and Ms Ngai, which were assessed at $16,000.
4. In gist, the judge held that Ms Yuen has no standing to make a claim or seek relief on behalf of her daughter who was the tenant. In any event, there was no basis for Ms Yuen to claim an injunction to restrain Mr Ngai from disturbing the “family members” collectively, as there was no suggestion, let alone evidence, that the family members other than the daughter was disturbed. The judge took the view that the matters and events alleged by Ms Yuen, whether taken singly or in combination, are insufficient to establish any tortious or otherwise unlawful conduct against Ms Yuen or the tenant such as to justify the issue of an injunction. Further, there was no ground for the exercise of discretion to make a Restricted Application Order (“RAO”) or Restricted Proceedings Order” (“RPO”) against Mr Ngai and Ms Ngai, as repeatedly sought by Ms Yuen in her summonses.
5. Ms Yuen brought an appeal against the aforesaid judgment and order as of right. This is CACV 118/2013, the appeal in the present proceedings. In her notice of appeal filed on 6 June 2013, she seeks to set aside the judgment and order and asks for an order that “this [sic] proceedings should be discontinued due to the serious mental disorder of Mr Ngai Ngok Pang”.
6. Mr Ngai filed a document in CACV 118/2013 headed “Respondent’s Notice” on 19 June 2013.
7. Despite three extensions of time granted to Ms Yuen in 2013, she did not submit draft appeal bundles to the Registrar of Civil Appeals for approval. From late 2013, Ms Yuen wrote to the court repeatedly indicating her intention to adjourn the appeal for one reason or other. We will have more to say about this later.
8. Instead of taking steps to further the prosecution of her appeal, a year after the filing of her notice of appeal, Ms Yuen issued a summons in the appeal. After a direction was made by the court that the summons be set down for hearing, Mr Ngai followed suit with a summons of his own. This was then directed to be heard at the same time as Ms Yuen’s summons. And before the hearing date of these summonses, Ms Yuen and Mr Ngai each issued a further summons, no doubt hoping that these two other summonses would be dealt with all at the same time. Ms Yuen in particular filed further affirmations as and when it suited her in support of her summonses or in opposition to Mr Ngai’s summonses. Even after the conclusion of the hearing on 3 March 2015, Ms Yuen sent a further submission to the court on 4 March and again wrote to the court on 6 March. This undesirable state of affairs will not be allowed in future. We will deal with this in the subsequent part of this judgment.
9. Thus, we ended up hearing four summonses, two issued by Ms Yuen and two by Mr Ngai. Needless to say, no hearing bundle was prepared by these litigants in person for the court. We will deal with the summonses in the order they were issued.
Summons issued by Ms Yuen on 9 July 2014
10. This summons was issued by Ms Yuen against Ms Ngai only. She seeks the following orders:
(1) Mr Ngai may not represent Ms Ngai in this summons, as this summons was issued solely against Ms Ngai;
(2) Ms Ngai be ordered to make an affirmation within 7 days giving her signature in English in the same way as the English signature in her name that appeared on the acknowledgment for service filed in HCMP 2829/2012 on 24 December 2012;
(3) Ms Ngai be ordered to sign her name in English within 7 days on the respondent’s notice filed and served by Mr Ngai on 19 June 2013; and
(4) this appeal be stayed permanently or discontinued until Ms Ngai should comply with the above orders and directions.
11. In support of this summons, Ms Yuen filed a total of 4 affirmations: on 9 July 2014, 10 November 2014, 1 December 2014 and 2 March 2015. She also served a skeleton submission dated 17 February 2015 and a further skeleton submission dated 27 February 2015 dealing with this summons, Mr Ngai’s summons of 16 September 2014 and her second summons of 10 December 2014.
12. In his affirmation filed on 16 September 2014 in support of his own summons, Mr Ngai also made his answer to Ms Yuen’s summons.
13. In summary, Ms Yuen made these allegations and assertions in her affirmations. The acknowledgment of service on 24 December 2012 bearing the signature of Ms Ngai in English was a forgery. It was unusual and abnormal for Ms Ngai to sign in English when she did not know the language and had not signed in English in the documents filed in the Lands Tribunal proceedings and in CACV 96/2013. The signature in English of Ms Ngai on a letter dated 15 January 2013 from Mr Ngai and Ms Ngai to the Listing Officer was also a forgery, as Ms Ngai did not attend court that day and Mr Ngai had told the court earlier that she was sick. Ms Yuen had reported the forgery to the police in 2013 and 2014. The sole purpose of her summons was to furnish further proof to the police for prosecution to be brought against Mr Ngai and Ms Ngai. And she has no intention to carry on with this appeal as the criminal issue, which was most important, should proceed first.
14. Ms Yuen asserted that if Ms Ngai had not acknowledged service of the originating summons, the hearing before the judge should not have proceeded against Mr Ngai alone as Mr Ngai “was found to have suffered serious mental disorder without doubt.” She further alleged that as the respondent’s notice did not have Ms Ngai’s signature and was signed only by Mr Ngai, it was not a “validated Respondents’ Notice” and Ms Ngai’s signature is required “before the appeal can be carried on or else it must be adjourned sine die or discontinued until Miss Ngai Yu Ling Mony will sign her same name as per her Acknowledgment of Service”.
15. The allegations of forgery are just bare assertions of Ms Yuen, as is her allegation that Mr Ngai has suffered from serious mental disorder. Whether the police would see fit to act on Ms Yuen’s complaints (and the police have not done so for almost 2 years) is nothing to the point. The judge ruled that Ms Yuen’s claim for injunctive relief against Mr Ngai is not sustainable in law and on the evidence and dismissed her claim with costs against both defendants. Whether Ms Ngai has made an acknowledgment of service to the originating summons is wholly immaterial.
16. We note that Ms Yuen had applied to Au-Yeung J in June 2013 (as the judge had made an RAO against her in HCMP 2829/2012 on 1 February 2013) for leave to issue a summons in HCMP 2829/2012 “to pass the forgery of Ngai Ngok Pang to the Police and/or Secretary for Justice”. The alleged forgery, according to Ms Yuen’s supporting affirmation of 20 June 2013, was that Mr Ngai had forged Ms Ngai’s signature in HCMP 2829/2012. Leave was refused by Au-Yeung J.
17. There is no basis for granting any of the reliefs sought in Ms Yuen’s summons. We therefore dismiss it. Having heard submissions on costs, and both parties accept that costs should follow the event, we order that costs of this summons be awarded to Mr Ngai and Ms Ngai.
Summons issued by Mr Ngai on 16 September 2014
18. Mr Ngai seeks two orders in this summons:
(1) Ms Yuen’s case should be referred to the Department of Justice to consider prosecution for repeated contraventions of the RAO made against her by Au-Yeung J in HCMP 2829/2012 on 1 February 2013; and
(2) Ms Yuen be ordered to provide her latest and effective address for service.
19. In support of this summons, Mr Ngai filed an affirmation on 16 September 2014. Ms Yuen filed two affirmations in opposition, on 10 October 2014 and 26 February 2015. As mentioned earlier, her skeleton submissions served on 17 and 27 February 2015 also dealt with this summons.
20. According to Mr Ngai, Ms Yuen’s summons in this appeal is in breach of the RAO in HCMP 2829/2012. He exhibited a letter of the court to him dated 26 August 2014 conveying the notification of Au-Yeung J that she has not given leave to Ms Yuen to issue the summons in CACV 118/2013 on 9 July 2014. He also exhibited an earlier letter of the court to him dated 23 July 2013 in which he was informed that (1) according to the terms of the RAO, unless Ms Yuen’s application for leave to issue an application in the specified proceeding (i.e. HCMP 2829/2012) was granted by the court, he was not required to take any steps in response; and (2) as matters then stood, there was no pending application by Ms Yuen for leave to issue an application in HCMP 2829/2012. Mr Ngai exhibited a number of summonses and draft summonses in HCMP 2829/2012 issued and sought to be issued by Ms Yuen after the RAO was made.
21. The RAO made by Au-Yeung J is in respect of the proceedings in HCMP 2829/2012. It does not extend to the proceedings in CACV 118/2013. The summonses issued by Ms Yuen in CACV 118/2013 are not caught by the RAO in HCMP 2829/2012. Whether the Court of Appeal should exercise its power to make an RAO in respect of applications before itself is a separate matter we would consider.
22. As to Mr Ngai’s complaints regarding contraventions of the RAO in respect of the summonses Ms Yuen issued and sought to issue in HCMP 2829/2012, whether any appropriate action should be taken is a matter for the consideration of the court below.
23. For the above reasons, we decline to make any order as to paragraph (1) of the summons.
24. Ms Yuen has moved out of the address in Le Prestige. She wrote to the court on 24 and 30 May 2014 stating that her address for service has been changed to an address in Clifford Estate, Panyu, Guangzhou and a PO Box in Yaumatei. The Registrar of Civil Appeals gave directions on 10 June 2014 and 15 July 2014 that she should file a notice of change of address for service and serve a copy of the notice on the respondents. She did not appear to have filed a notice of change of address for service in these appeal proceedings. Nevertheless, in her affirmations filed in this appeal as from 10 October 2014, Ms Yuen has given the address in Clifford Estate and the PO Box in Yaumatei as her addresses. Mr Ngai alleged that as Ms Yuen is still residing in Hong Kong, she should not provide an address in the Mainland and a PO Box as her addresses for service. But there is no evidence before us to support his allegation that Ms Yuen has maintained a residence in Hong Kong after she moved out of Le Prestige. Also, we have no reason to think that documents served on the address in Clifford Estate and the PO Box in Yaumatei would not reach Ms Yuen.
25. We decline to make an order sought in paragraph (2) of the summons.
26. We make an order there be no order as to costs of Mr Ngai’s summons, taking into account his summons was issued as a response to Ms Yuen’s summons. We also take into account that notwithstanding we decline to grant him relief as sought in his summons, we think it appropriate to make an RAO in these appeal proceedings for reasons to be explained.
Summons issued by Ms Yuen on 10 December 2014
27. By this summons, Ms Yuen seeks 2 orders:
(1) to pass “the false affidavit/forgery and a further offence of perverting the course of justice to the police committed by Ngai Ngok Pang with immediate effect”; and
(2) to hear her first summons dated 9 July 2014 before Christmas 2014 and to vacate the hearing on 3 March 2015.
28. In support of this summons, she filed an affirmation on 10 December 2014. Her skeleton submissions served on 17 and 27 February 2015 also dealt with this summons, as well as her submission dated 4 March 2015 served after the hearing.
29. By an order made on 16 December 2014, paragraph (2) of her summons was refused and it was directed that paragraph (1) of her summons be heard with the other summonses on 3 March.
30. For the reasons given in dismissing the summons of 9 July 2014, we dismiss paragraph (1) of this summons. We note she has sought to issue at least one summons in HCMP 2829/2012 in 2013 seeking similar relief, and she has already issued a similar summons in these appeal proceedings on 9 July 2014. We make an order that Ms Yuen should pay the costs of Mr Ngai and Ms Ngai of this summons.
Summons issued by Mr Ngai on 13 February 2015
31. By this summons, Mr Ngai seeks an order to dismiss the appeal in CACV 118/2013.
32. He filed a supporting affirmation on 13 February 2015. Ms Yuen filed an affirmation in opposition on 26 February and dealt with this further in her skeleton submission dated 27 February.
33. Mr Ngai seeks an order to dismiss the appeal of Ms Yuen on these grounds: she has not submitted draft appeal bundles despite various extensions of time; she has not provided a proper address for service and has not paid the costs awarded against her in HCMP 2829/2012; she has issued two summonses in the appeal proceedings that are wholly untenable and have nothing to do with the appeal. Mr Ngai submitted Ms Yuen has apparently no intention to proceed with her appeal and it would not be fair to him to allow her to delay indefinitely the prosecution of the appeal.
34. We have reviewed the court file in the appeal proceedings. We think there is substance in Mr Ngai’s complaint that Ms Yuen has apparently no intention to proceed with this appeal.
35. Her notice of appeal was filed on 6 June 2013. On 19 June 2013, the Registrar of Civil Appeals gave her an extension of time to submit draft appeal bundles by 30 August 2013 and informed her that he would not grant leave to fix the hearing date of the appeal until he has approved the draft bundles. Ms Yuen sought a further extension of time on 31 August 2013. The Registrar gave her an extension to 31 October 2013 and informed her on 6 September that no further extension would be granted.
36. On 8 October 2013, Ms Yuen wrote to the court indicating that she has decided to abandon the appeal with immediate effect. On 22 October 2013, the Registrar gave her directions by letter that if she wished to discontinue the appeal, she was required to file a “Request for Dismissal of Appeal by Consent” or a “Request for Dismissal of Appeals” and explained to her the different costs implication between the two kinds of request. Ms Yuen then wrote to the court on 28 October stating that she has decided not to abandon the appeal and instead she asked the Registrar to adjourn the appeal.
37. On 22 November 2013, the Registrar directed Ms Yuen that if she was not discontinuing the appeal, she was to submit draft appeal bundles within 14 days. On 26 November 2013, Ms Yuen wrote to the court indicating that she has decided to adjourn the appeal sine die with liberty to restore. She did not submit the draft appeal bundles. On 18 January 2014, she wrote to the court asking the Registrar to adjourn the appeal sine die for the appeal in CACV 96/2013 to be heard first. On 5 February 2014, Ms Yuen wrote to the court stating that she would not proceed with this appeal until after CACV 96/2013 was heard. On 31 May 2014, she wrote to the court indicating that the appeal should be adjourned sine die pending police investigation against Mr Ngai and Ms Ngai. In June 2014, she wrote to the court alleging that as the respondent’s notice was just signed by Mr Ngai alone, the proceedings are not “validated”. And then she issued her first summons on 9 July 2014 followed by one summons after another on both sides.
38. In Ms Yuen’s submission dated 4 March 2015, she complained of an assault by Mr Ngai on her as they were leaving the courtroom after the hearing. The police was called and both were taken to Queen Mary Hospital. Ms Yuen contended this appeal cannot be carried on and must be “discontinued” pending police investigation into the alleged assault.
39. There is simply no basis to adjourn this appeal pending the resolution of CACV 96/2013 (which has been decided on 6 November 2014 in any event) or any police investigation of Ms Yuen’s complaint of forgery against Mr Ngai and Ms Ngai or the latest complaint of assault on Ms Yuen by Mr Ngai.
40. In Re Antonythasan Sajeeth Pirasanth, CACV 273/2012, 13 August 2014, Lam VP set out the procedure that would be taken for cases where the appellant has failed to lodge an appeal bundle despite directions and reminders from the court. The matter will be listed for hearing before three judges to consider the dismissal of the appeal for want of prosecution.
41. We will give Ms Yuen one last chance to proceed with the appeal, if it is her intention to do so. We order that unless within 21 days hereof Ms Yuen lodges a draft appeal bundle for approval by the Registrar of Civil Appeals, or files a “Request for Dismissal of Appeal by Consent” or a “Request for Dismissal of Appeals”, this appeal is to be listed before three judges for a hearing of 30 minutes to consider dismissal of the appeal for want of prosecution.
42. We make an order that Ms Yuen should pay the costs of this summons to Mr Ngai and Ms Ngai. Although we have not made an order as sought by this summons, we think it justified for this summons to be issued and we have made an unless order.
RAO in these appeal proceedings
43. Lastly, we think it appropriate in the present circumstances to make an RAO against Ms Yuen in these appeal proceedings of our own motion. Her repeated acts of issuing summonses to similar effect are bordering on abuse of the process of the court. At the hearing, Ms Yuen told this court she is not opposed to an RAO against her in the present proceedings. She has a change of mind after the hearing, and in her submission dated 4 March 2015 she asked the court to consider either not making an RAO against her alone or if an RAO is to be made it should be made against her and Mr Ngai. She pointed to the fact that Mr Ngai has also issued two summonses against her in the present proceedings and Mr Ngai’s alleged assault on her after the hearing.
44. We do not think the two summonses of Mr Ngai are an abuse of the process of the court. If the alleged assault should be proved in another court, the appropriate redress is not by way of an RAO. We decline to make an RAO against Mr Ngai.
45. We make an RAO against Ms Yuen in these terms:
(1) Ms Yuen is prohibited from making any further application to the Court of Appeal in the proceedings in CACV 118/2013, whether before or after judgment, without the leave of Kwan JA being first obtained (except for seeking approval of a draft appeal bundle, or making a “Request for Dismissal of Appeal by Consent” or a “Request for Dismissal of Appeals”, or seeking variation of any costs order nisi in the proceedings);
(2) all applications for leave to issue an application in the proceedings in CACV 118/2013 (“RAO leave applications”) must be made in writing to Kwan JA (and not to any other Judge or to a Master) without giving notice of the application to the intended respondent or respondents;
(3) in the event Kwan JA is not available to deal with the RAO leave application, the same should be dealt with by another Justice of Appeal designated by the Chief Judge of the High Court;
(4) all RAO leave applications and all matters ancillary thereto should be dealt with on the papers without any oral hearing unless the designated Judge otherwise directs;
(5) where leave to make the substantive application is granted, service of the order giving leave must accompany service of the substantive application in question;
(6) if contrary to the RAO, Ms Yuen seeks to issue an application in the proceedings in CACV 118/2013 without prior leave of the Court, the purported application should forthwith be referred by the Registry to the designated Judge for such application to be dismissed in accordance with the RAO; and
(7) if contrary to the RAO, Ms Yuen purports to serve on the respondents any application in the proceedings in CACV 118/2013 without at the same time serving on the respondents a copy of an order giving leave to issue such application, such application should automatically stand dismissed, so that neither the respondents nor the Court would be required to take any steps in response.
Gross sum assessment of costs orders
46. We have ordered costs in favour of Mr Ngai and Ms Ngai in respect of Ms Yuen’s summons of 9 July 2014, her summons of 10 December 2014 and Mr Ngai’s summons of 13 February 2015. The parties were told of our intention to make a gross sum assessment on the basis of a reasonable amount of work done at the rate of $200 an hour and they are not opposed to this. We make a composite gross sum assessment in respect of the three summonses and assess costs at $10,000.
| (Maria Yuen) | (Susan Kwan) |
| Justice of Appeal | Justice of Appeal |
The Plaintiff (Appellant) appeared in person
The 1st Defendant (1st Respondent) appeared in person
The 2nd Defendant (2nd Respondent) was not represented and did not appear