HCAL 119 / 2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 119 OF 2010
Before : Hon Au J in Chambers
Date of Hearing: 15 December 2010
Date of Judgment: 15 December 2010
J U D G M E N T
1. This is the hearing of whether a Restricted Proceedings Order (“RPO”) should be made against the Applicant, Mr Cheung Kin Chung(“Mr Cheung”).
2. On 23 November 2010, this Court handed down its judgment (“the Judgment”) dismissing Mr Cheung’s application for leave toapply for judicial review.
3. At paragraphs 14 and 15 of the Judgment, I indicated that the Court should consider whether to make a RPO against Mr Cheung, inlight of the fact that his application for leave to apply for judicial review is the second unmeritorious one made by him on thesame subject matter taken out within a period of 3 months. The first of these applications was made under HCAL 84/2010, of whichHon Fok J dismissed Mr Cheung’s then application as being, inter alia, without merits. I also gave directions for the hearing of whether the Court should make the relevant RPO against Mr Cheung, andfor him to file an affirmation to state the grounds of his opposition, if any, to the making of the order.
4. Mr Cheung filed his affirmation in opposition on 26 November 2010.
5. However, Mr Cheung did not appear at the hearing today.
6. I am satisfied that he should be fully aware of today’s hearing, as this was fixed while he was in Court at the hearing on 26November 2010 of his ex parte application for leave for judicial review, and this hearing time was repeated at paragraph 15 of theJudgment. In the premises, notwithstanding his absence at the hearing today, I would still proceed to consider the matter in lightof the opposition set out in his affirmation.
7. In his affirmation, the ground of opposition set out by Mr Cheung is that such a RPO order, if made, would be contrary to Article35 of the Basic Law (“BL 35”), which “allows Hong Kong residents to have the right to have access to the courts”.
8. BL 35 provides as follows:
9. This ground of opposition is without merits.
10. In Ng Yat Chi v Max Share Ltd (FACV 5/2004, Li CJ, Bokhary, Chan, Ribeiro PJJ and Lord Scott NPJ, 20 January 2005), the Court of Final Appeal has firmly concludedthat the making of a RPO in appropriate cases to prevent a vexatious litigant from abusing the court process in repeatedly issuingproceedings which clearly have no merits or legal basis is not in contravention of BL 35.
11. The background of Mr Cheung’s above mentioned previous applications for leave for judicial review relates to what he says to be“retaliations” by security guards posted at the public housing estate where he lives as a result of his making complaints againstthem some 10 years ago, and the continued failure by the relevant authorities to respond to his complaints about these retaliationconducts of the security guards. These background matters have been set out at paragraphs 4-5 of the Judgment and more substantivelyin Fok J’s judgment under HCAL 84/2010.
12. After the dismissal of his first application for leave for judicial review under HCAL 84/2010 by Fok J on 4 October 2010, wherethe learned judge held that the application was without merits, Mr Cheung then took out a fresh application for judicial review onlyabout a month later on 12 November 2010 on essentially the same subject matter under the present HCAL 119/2010. In my view, theseconducts, when looked at against the above background, show that Mr Cheung is a vexatious litigant who characteristically refusesto accept the unfavourable result of the litigation, obstinately trying to re-open the matter without any viable legal basis, andthat these repeated applications are an abuse of court’s process.
13. In my judgment, it is therefore appropriate and necessary to make a relevant RPO against Mr Cheung in these circumstances.
14. I will make the following order:
15. I further order that there be no order as to costs of today’s hearing.
The Applicant, acting in person, absent.