Secretary For Justice v Ma Kwai Chun

HCMP 1471/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1471 OF 2005

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J U D G M E N T

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Introduction

1. Since 2000, Madam Ma Kwai Chun has been involved in no less than 32 sets of legal proceedings (sometimes with numerous interlocutory applications and appeals in the same set of proceedings) in the High Court. Of these proceedings, 28 sets were commenced by her. In one set of proceedings, her company Chasemax Investment Limited was the defendant in an action by the landlord for possession on account of arrears of rent. Chasemax made a counterclaim. Of the remaining three sets in which Madam Ma was the defendant, one involved an application for injunctive relief against her by a solicitors firm to restrain her from visiting their office or harassing their staff. Another one is an action by a bank for repayment of banking facilities. The last one is a bankrupty petition presented against her. Madam Ma always acted in person in these proceedings.

2. If a lawyer, or indeed any person, were to go into the Legal Reference section of the Judiciary website and search for Chinese judgments by reference to Madam Ma or her company as a party, he would probably find that the frequency of Madam Ma attending court was comparable to a seasoned litigation lawyer. One must remember all these judgments were delivered after substantial judicial resources were spent on preparation for the hearings, presiding over the hearings and writing the judgments. It means other cases had to wait for longer time before they could be disposed of. In proceedings involving Madam Ma, the opposite parties had to incur costs in retaining lawyers to prepare and attend the hearings. In these proceedings, Madam Ma lost on many occasions and orders for costs were made against her. I do not know the extent to which these parties have been able to recover their legal costs. I suspect not much was recovered. The court made a bankruptcy order against Madam Ma on 8 August 2005.

3. Sometimes it is easy to lose sight of the obvious. Access to court is a fundamental right which the court will do everything to safeguard. However, it would be wrong to equate such a right with unlimited freedom to engage in litigation in whatever manner one chooses. Litigation is not a private matter. Even in the context of a civil dispute, the prosecution of a claim is a public act. As Bokhary PJ put it in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473 at Para.25, in prosecuting a claim in court, a plaintiff is evoking state power by resorting to the coercive provisions of the court’s process. The opposite party is obliged to respond to a claim, failing which default judgment could be entered and the coercive power of the court could then be deployed to enforce the judgment.

4. A litigant enjoys certain privilege in respect of statements made by him in the course of judicial proceedings. He is protected by immunity from liability for defamation. A litigant can also compel his adversary to give discovery of documents or disclosure of information which, but for the litigation, could be treated as private and confidential. He also has the right to subpoena third parties, who might not wish to be involved in the dispute, to give relevant evidence. At trial, he could subject his adversary to cross-examination if the latter chooses to go into the witness box. He could also cross-examine any witnesses called by the other side. There are good reasons for such privilege and compulsion. At the same time, if the process of the court were misused, it could cause unjustified inconvenience, anxiety, suffering or damage to other parties. The court must therefore be the master of its own process. Hence, it has inherent jurisdiction to control all proceedings to prevent abuses even though generally a litigant has the conduct of proceedings commenced by him.

5. Most litigants come to court to seek redress for grievance suffered or perceived to have been suffered by him or her. They want to see justice to be done. No doubt, most of them genuinely believe that they are pursuing a just cause. But due to human fallibility, their perceptions as to what is just may be flawed. Very often, there are matters which were overlooked. New perspective of a dispute might come to light after the opposite party has the opportunity of putting his case in pleadings or evidence. Even the best lawyer cannot tell his client with certainty at the commencement of an action that his case must surely win.

6. Once a piece of litigation has been commenced, the plaintiff is not the only person affected by it. The adversary will be affected. A responsible litigant has to consider the potential liabilities for the costs of the adversary if he or she loses the action. If a litigant does not have the means to pay the costs of his adversary if he loses, he is in effect causing potential financial damage to his adversary by pursuing his claim. The court will also be affected. Given that judicial resources are not unlimited, the action of a litigant will have an overall impact on other litigants who wishes to pursue their just causes.

7. Hence, it is of great importance to ensure that the court’s process is not abused. Excess in terms of abusive proceedings has to be curbed. The court has and will continue to exercise its inherent jurisdiction in forestalling abuses of its process. The Chief Justice said in Para. 6 of his judgment in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473,

“The proper and effective exercise of the court’s jurisdiction to prevent abuse, both statutory and inherent, is essential to the prevention of injustice to the other parties to the litigation in question as well as the operation of a fair and efficient judicial system.” (my emphasis)

8. As guardian of the public interest, the Secretary for Justice also has a role to play in the prevention of abuses in civil proceedings. By Section 27 of the High Court Ordinance, the legislature empowered the Secretary for Justice to act in cases of habitual and persistent abuses.

9. On 18 July 2005, the Secretary for Justice issued the present proceedings under Section 27 against Madam Ma.

The proceedings of Madam Ma

10. I shall now briefly highlight the proceedings in which Madam Ma or her company was a party. For reasons discussed in the next section, it is not necessary for this court to go into the details of each and every proceeding in this judgment. With the exception of 6 actions, the other proceedings commenced by Madam Ma or her company had either been struck out by the court as abuse of process or dismissed after trial. I annex to this judgment a table produced on behalf of the Secretary for Justice setting out the particulars of the actions struck out or dismissed and another table setting out all the actions in which Madam Ma was involved.

11. It has to be mentioned that Madam Ma had been successful in some of her proceedings. However, the question is not whether she had properly pursued her legitimate claims in previous proceedings. The question is whether she has so habitually and persistently and without any reasonable ground instituted vexatious legal proceedings that the court should exercise its discretion to make an order under Section 27. The fact that she had been successful in some proceedings does not give her a justification to pursue other vexatious proceedings. Examples can be found in AG v Lawal [2004] EWHC 816 (Admin) and AG v Knight [2004] VSC 407.

12. Broadly speaking, the proceedings commenced by Madam Ma can be categorized as follows,

(a)	proceedings arisen from the disputes between Madam Ma and a bank, including one action against solicitors acting for the bank;
(b)	proceedings arisen from the arrest of Madam Ma by the police, including an action against Secretary for Justice and the government counsel acting for the police in defending the action;
(c)	proceedings arisen from the tenancy disputes between Chasemax and its landlord, including action by Madam Ma against the solicitor firm acting for the landlord and another action by Madam Ma against the solicitor firm acting for the first mentioned solicitor firm;
(d)	proceedings against judges and judicial officers and other staff in the Judiciary;
(e)	9 actions commenced by Madam Ma between April and June 2005 against a varieties of defendants who were public figures including the Hong Kong government, the former Chief Executive, the Chief Justice, a number of Legislative Councillors, a number of judges and several members of staff in the Judiciary, the Secretary for Justice and the Director of Public Prosecution, the Hong Kong Bar Association and its chairman and vice-chairman, the Law Society and its President and Vice-President, the University of Hong Kong and its Vice Chancellor and the Dean and several members of the teaching staff in the Faculty of Law. Former public figures who had already retired from their offices were also sued: the former Chief Justice and the former Chief Secretary;
(f)	other proceedings.

13. In these proceedings, Madam Ma habitually and persistently made a large number of interlocutory applications, many of which are unnecessary and unmeritorious. According to the evidence filed on behalf of the Secretary for Justice, in the 32 sets of proceedings, Madam Ma had, up to 15 July 2005, taken out 201 applications. In the appeals arising from these proceedings, she had made at least 23 applications....