CACV175_2012

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CACV 175/2012, CACV 200/2012, CACV 228/2012

and CACV 229/2012 (Heard together)

香港特別行政區

高等法院上訴法庭

民事司法管轄權

民事上訴

民事上訴案件 20 1 2年第 1 75號

（原本案件編號：高等法院雜項案件 20 1 0年第 3 81號）

原告人何建民

及

被告人香港警務處處長

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2012

(ON APPEAL FROM HCA NO. 429 OF 2010)

BETWEEN

LEUNG FUK WAH OIL Plaintiff

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and

SECRETARY FOR JUSTICE for and on behalf of

THE COMMISSIONER OF POLICE

Defendant

AND



COURT OF APPEAL



BETWEEN

LAI YING ON Plaintiff

and



Defendant

AND



COURT OF APPEAL



BETWEEN

NG SAI HING Plaintiff

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and



Defendant

(Heard Together)

Before: Hon Lam VP, Kwan JA and Poon J in Court

Date of Hearing: 13 May 2014

Date of Judgment: 26 May 2014

J U D G M E N T

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

1. In four separate actions, four former police officers sued the

Commissioner of Police for damages in respect of what they alleged to be

wrongful termination of their services. Each of them was either

dismissed or compulsorily retired after disciplinary proceedings held

against him. The relevant dates of their disciplinary hearings, the

making of the awards of dismissal or compulsory retirement and their

confirmation and the actual date of termination are as follows:

Date of Conclusion of Hearing

Dates of Awards (and Confirmations)

Date of Actual

Termination

Ho Kin Man 28.10.03 10.11.03 (8.12.03, 15.3.04) 22.3.04 Lai Ying On 25.5.04 1.6.04 (23.7.04, 16.9.04) 23.9.04 Ng Sai Hing 15.9.04 27.9.04 (4.1.05, 7.11.05) 17.11.05 Leung Fuk Wah 29.3.99 30.4.99 (21.6.99, 8.3.00) 17.3.00

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2. The claims in their respective action are based on the

wrongful prohibition against legal representation at the disciplinary

hearings. Before the decision of the Court of Final Appeal in Lam Siu

Po v Commissioner of Police (2009) 12 HKCFAR 237, regulation 9(11)

and (12) of the Police (Disciplinary) Regulations Cap 232A set an

absolute bar against legal representation in disciplinary proceedings

against police officers. On 26 March 2009, the Court of Final Appeal

held that such an absolute bar was unconstitutional and the

Commissioner should consider whether fairness required permission

being given for legal representation in the circumstances of each case.

3. The four plaintiffs had challenged their respective

dismissal/compulsory retirement by applications for judicial review.

None of them succeeded. Only one of them, Ho Kin Man, challenged

the constitutionality of the absolute bar against legal representation in his

application for judicial review. The particulars of their respective

challenge by way of judicial review are as follows:

First Instance Proceedings

Appeal

Ho Kin Man HCAL 23/2005; leave refused on 22.4.05

CACV 145/2005; appeal dismissed on 31.8.05

Lai Ying On HCAL 5/2005; leave refused on 9.6.05

CACV 226/2005; appeal dismissed on 3.10.05

Ng Sai Hing HCAL 15/2006; leave granted; substantial application dismissed on 26.1.07

No appeal

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First Instance

Proceedings Appeal

Leung Fuk Wah HCAL 371/2001; leave granted; substantial application against the primary awards dismissed though certiorari granted regarding the Commissioner’s dismissal of the appeal

CACV 2744/2001; appeal by the Commissioner allowed and the cross-appeal by Leung dismissed on 28.3.02

4. As shown above, the judicial review proceedings and the

appeals were concluded well before the judgment of the Court of Final

Appeal in Lam Siu Po. However, though none of the plaintiffs could

have relied on that judgment in their applications for judicial review,

each of them could have advanced a similar constitutional challenge to

regulation 9(11) and (12) of the Police (Disciplinary) Regulations Cap

232A [“the Regulations”] in their respective case. Actually, Mr Ho did

raise a similar point but, unlike Mr Lam, he did not take his case to the

Court of Final Appeal.

5. By the time when the Court of Final Appeal delivered

judgment in Lam Siu Po, these four plaintiffs were substantially out of

time in terms of appealing further in the applications for judicial review.

In view of the authorities decided subsequent to Lam Siu Po in similar

context, it is unlikely that any of them could get leave to appeal out of

time to enable them to benefit from the decision in Lam Siu Po: see

Clarence Chan Kang Chau v Commissioner of Police (2010) 13

HKCFAR 462; Lam Chi Wai v Commissioner of Police HCMP 311 of

2010, 24 June 2010; Ho Ho Chuen v Commissioner of Police HCMP

2276/2009, 18 Dec 2009; Tsui Kin Kwok Johnnie v Commissioner of

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Police HCAL 50/2009, 26 Feb 2010; CACV 38/2010, 28 March 2011;

李錦榮對警務處處長 CACV 115/2010, 11 April 2011; Lam Sze

Ming v Commissioner of Police FAMV 26/2010, 15 March 2011; Chau

Cheuk Yiu v Poon Kit Sang (2012) 15 HKCFAR 460.

6. Instead of seeking leave to appeal out of time, the four

plaintiffs commenced ordinary civil actions seeking damages by issuing

an originating summons and writs in 2010 and 2011 respectively. The

Commissioner applied to have these actions struck out. On 13 July

2012, Deputy High Court Judge Saunders [“the Judge”] acceded to the

applications and struck out the claims of these plaintiffs. These are the

appeals against such decisions.

7. Though the Commissioner advanced three broad grounds for

striking out, the Judge only accepted two of them. The grounds

accepted by the Judge were:

(a) The claims were time-barred; and

(b) By reason of the unsuccessful judicial review applications,

there is an issue estoppel against each of the plaintiffs in

respect of the constitutionality of the Regulations and the

present actions should be struck out as abuse of process.

8. The Judge did not accept the contention of the

Commissioner that in any event the plaintiffs do not have any reasonable

cause of action. In these appeals, the Commissioner has filed

respondent notices seeking to uphold the striking out on the ground of no

reasonable cause of action.

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Abuse of process

9. We shall first deal with the arguments on abuse of process.

Before we consider the substantive arguments on the application of legal

principles to the facts of these appeals, we would briefly examine the law.

As we shall see, there is not much disagreement between Mr Dykes SC

(appearing together with Mr Pun for the 4 plaintiffs) and Mr Shieh SC

(appearing together with Mr Lui for the Commissioner) on the proper

approach to be adopted.

10. Mr Dykes referred us to the recent judgment of the Supreme

Court in Virgin Atlantic Airways v Zodiac Seats UK Ltd [2014] AC 160.

There is a clear exposition of the law on estoppel in the judgment of Lord

Sumption JSC (with whom Baroness Hale, Lord Clarke and Lord

Carnwarth agreed). His Lordship gave a clear analysis on the different

legal principles which could loosely be regarded as coming with the

ambit of “res judicata”. For present purposes, we only need to mention

four different principles identified by His Lordship at para 17 of the

judgment:

(a) Cause of action estoppel;

(b) Issue estoppel;

(c) The principle formulated in Henderson v Henderson; and

(d) General procedural rule against abusive proceedings.

11. Before us, Mr Shieh disavowed any reliance on cause of

action estoppel.

12. In his judgment, the Judge did not draw any distinction

between issue estoppel and the Henderson v Henderson principle. He

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primarily relied upon Arnold v National Westminster Bank [1991] 2 AC

93 for his conclusion on estoppel. The Judge also referred to the

statement of principle by Lord Bingham in Johnson v Gore Wood [2002]

2 AC 1 at p.31D and p.23E-F.

13. In Virgin Atlantic Airways, Lord Sumption analysed Arnold

at some length at paras 20 to 22 of his judgment. We respectfully agree

with His Lordship that Arnold was not a Henderson v Henderson case.

However, in the context of issue estoppel, Arnold decided that there is

flexibility to permit a point that has been previously argued to be

re-opened in subsequent proceedings where due to special circumstances

a bar to raise the issue again would cause injustice. The approach

formulated by Lord Keith in Arnold was set out at [1991] 2 AC 93 p.109:

“… there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppels being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.”

14. On the other hand, Johnson v Gore Wood [2002] 2 AC 1 is a

Henderson v Henderson case, see para 25 of Virgin Atlantic Airways.

The approach of Lord Bingham again places emphasis on flexibility and

focuses on whether in all circumstances a party is misusing or abusing

the court process. It has to be a broad merits-based assessment having

regard to the relevant private and public interest. This is now firmly

established to be the proper approach by a line of authorities in Hong

Kong: Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111;

Chiang Lily v Secretary for Justice [2009] 6 HKC 234; Ko Hon Yue v

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Chiu Pik Yuk (2012) 15 HKCFAR 72; Total Lubricants v De Chanterac

(No 2) [2013] 2 HKLRD 838.

15. Though Lord Sumption regarded res judicata and abuse of

process as two juridically different concepts, His Lordship was of the

view that the Henderson v Henderson kind of abuse of process can be

part of the law of res judicata. At para 25 of the judgment in Virgin

Atlantic Airways, after referring to the distinction between the two

concepts, he said:

“In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. …”

16. There may be further development in terms of the

assimilation of the approach of Lord Bingham in the context of issue

estoppel. But it is not necessary for us to decide whether there should

be such assimilation in the present appeals. Mr Shieh is quite content to

adopt a broad merits-based assessment in deciding whether these actions

should be struck out as being abuse of the court process. We would

take the same approach.

17. We should mention Mr Shieh also relied on the principle in

Hunter v Chief Constable of the West Midlands Police [1982] AC 529.

Insofar as a second action can be regarded as a collateral attack on the

previous decision, we accept this must be a relevant consideration in the

overall assessment under Lord Bingham’s broad merits-based assessment.

As we shall discuss below, this can be a weighty consideration in terms

of the public interest in finality of litigation.

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18. Mr Dykes raised the following arguments in contending that

it is not an abuse for the four plaintiffs to pursue their claims for damages

notwithstanding their unsuccessful attempts in judicial review:

(a) The issue of constitutionality of the Regulations had not

been litigated in the judicial review proceedings of Lai, Ng

and Leung;

(b) The principle of issue estoppel does not apply to decision

given in judicial review proceedings at all or not in its full

rigour. This is particularly so in light of the short time

frame for lodging applications for judicial review and the

discretionary nature of remedies in such proceedings;

(c) The Commissioner was not vexed twice in the cases of Ho

and Lai since they did not get leave to apply for judicial

review;

(d) The remedies sought in the judicial review proceedings

aimed at seeking the reversal of the decision to terminate the

services of the four plaintiffs whereas in the civil actions

they accepted that they could not be reinstated and they are

seeking damages. The objectives of the plaintiffs were

different in the different sets of proceedings;

(e) The plaintiffs did not and could not have advanced a pure

claim for damages in the applications for judicial review;

(f) The seeking of damages would not disrupt the

administration of the police in terms of potential prospects

of having these four plaintiffs reinstated as police officers;

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(g) Lam Siu Po shows that the decisions of the court in Ho’s

application for judicial review were wrong in rejecting his

challenge based on article 10 of the Hong Kong Bill of

Rights;

(h) In light of the then state of authorities, the other three

plaintiffs only acted in a realistic manner in not advancing a

similar challenge and they should not be penalised for so

conducting their applications for judicial review.

19. For the Commissioner, Mr Shieh submitted that the actions

by writ are no less than collateral attack on the previous decisions given

by the court in the judicial review proceedings. It does not matter that

the plaintiffs now seek damages as opposed to the quashing of the

decisions on the termination of their services. Nor does it matter that

three plaintiffs did not raise the constitutional challenge in their

applications for judicial review since they could have raised the challenge

in attacking the legality of the dismissal/compulsory retirement ordered

by the Commissioner.

20. He contended that the principles of issue estoppel and

Henderson v Henderson abuse of process are applicable in the context of

judicial review proceedings. In cases concerning a public authority like

the Commissioner, there is a strong public interest in that the

Government should be in a position to know whether its decision can

withstand legal challenges. Another important public interest is the

finality of litigation as explained in the context of refusal of leave to

extend the time for appeal. To allow these plaintiffs to have a second

attempt at attacking the legality of their terminations would, counsel said,

bring the administration of justice into disrepute.

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21. As indicated earlier, we would focus on Henderson v

Henderson abuse of process. We do not see any reason in principle why

this principle cannot be applied in the context of judicial review. The

court must have the power to strike out abusive proceedings, be it public

law proceedings or private law civil claims. In Chiang Lily v Secretary

for Justice [2009] 6 HKC 234, Ma CJHC (as he then was) applied the

Henderson v Henderson principle and the approach of Lord Bingham in

the context of a subsequent set of judicial review proceedings despite an

adverse decision in an earlier application for judicial review. This

decision was affirmed by the Appeal Committee of the Court of Final

Appeal in refusing leave to appeal (see (2010) 13 HKCFAR 208).

22. What was said by Li CJ at paras 12 to 14 are also pertinent

in the present context: “12. The central argument upon which leave to appeal

against the Court of Appeal’s conclusion of abuse is sought involves the contention that the applicant should not be shut out from arguing a point of which she was herself previously unaware and which her then legal advisers either did not know about or did not consider to be viable, given that her present legal advisers now take a different view and consider it a worthwhile line to pursue. As was put by Mr Johnny Mok SC, who has said all that could be said on behalf of the applicant:

If (the original legal advisers) failed to appreciate a difficult or novel line of argument or that such argument is viable, the consequence of that failure should not be visited upon their lay client …

13. We do not accept that argument. The fact that a second or subsequent set of lawyers thinks of a new point which the earlier advisers did not consider or might have thought was unmeritorious cannot be a basis for effectively re-opening a matter where arguments then considered proper had been deployed and duly considered. If that were the applicable standard, there would never be finality in any court proceedings. As the Court stated in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, a person is generally bound by the way a matter is conducted by his or her counsel. The exception is where the person in question can show that he or

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she was deprived of a fair trial because of the “flagrant incompetence” of counsel.

14. In considering whether there has been an abuse of process, all the relevant circumstances have to be considered. But on a leave application like the present, the applicant must show that it is at least reasonably arguable that a charge of flagrant incompetence can properly be made against the earlier advisers. No such allegation is or could possibly be made in the present case. A difference of view taken by counsel now instructed – on a point described as “novel” or “difficult” – falls far short of the applicable standard.”

23. The same logic applies here even though the change of view

on the viability of constitutional challenge is brought about by the

reversal of previous authorities by the Court of Final Appeal in Lam Siu

Po. In this connection, the public interest on finality of litigation, as

discussed below, is of great significance.

24. As regards Mr Dykes’ submission that the principle should

not be applicable in respect of a decision on refusal of leave to apply for

judicial review and the Commissioner was not vexed twice, we do not

agree that those are reasons for excluding the cases from the scope of the

Henderson v Henderson principle altogether. The case cited by Mr

Dykes, R (Opoku) v Principal of Southwark College [2003] 1 WLR 234,

was a decision on the cause of action estoppel instead of Henderson v

Henderson abuse of process. At para 16 of the judgment of Lightman J,

His Lordship clearly envisaged that the second application for leave

could, in an appropriate case, be refused as an abuse of process. The

same can be said in respect of R(Eco Power) v Transport for London

[2010] EWHC 1683 (Admin), see paras 21 and 22; and BA v Secretary of

State for the Home Department [2012] EWCA Civ 944 paras 24 to 27.

25. In Chiang Lily v Secretary for Justice [2009] 6 HKC 234,

Ma CJHC (as he then was) explained at paras 56 to 63 of his judgment

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the availability of the power to strike out an abusive second attempt to

litigate even though it may not be strictly between the same parties. It is

not necessary to have a party being vexed twice if abuse can be

established in all the circumstances of the case: see China North

Industries Investment v Chum [2010] 5 HKLRD 1; King’s City Holdings

v De Monsa Investments Ltd [2013] 4 HKC 450; Calyon v Michailaidis

[2009] UKPC 34.

26. Further, as it is a broad merits-based assessment, we do not

see any reason why the principle should be applied with less vigour in

respect of previous decisions reached in judicial review proceedings.

There is no suggestion in Chiang Lily that the court should be less

inclined to apply the principle if an earlier decision was given in an

application for judicial review. A well-established situation where it is

abuse of process to bring subsequent proceedings which had the effect of

collateral challenge to earlier proceedings is the pursuit of civil claim for

damages by a person previously convicted in criminal proceedings, see

Hunter v Chief Constable of West Midlands Police [1982] AC 529. The

nature of the earlier proceedings cannot be a reason for changing the

overall approach.

27. Having said that, we accept the circumstances in which the

earlier decisions were made in the judicial review applications, including

that Ho’s and Lai’s applications failed at the leave stage, should be taken

into account in the overall broad merits-based assessment.

28. However, we do not accept that the difference in the

remedies sought by the plaintiffs (damages in the writ actions as opposed

to certiorari quashing the decisions to terminate their services as police

officers) in the two sets of proceedings is of much relevance in the

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overall assessment as to whether the subsequent civil claims are abuses

of the process.

29. The relevant public interest which militates against

permitting the constitutionality of the Regulations to be litigated in the

subsequent actions is two-folded. First, proper public administration

dictates that decisions by public authorities on matters of public interest

should be settled within a reasonable time frame. This is the rationale

for the requirement of promptitude in proceedings for judicial review.

In the context of the decision to terminate the service of a police officer,

if there is any challenge as to the procedural irregularity of the

disciplinary proceedings, it must be in the public interest that the

challenge is argued and ruled upon (if necessary by the court) once and

for all. If the court upheld the challenge, a new set of disciplinary

proceedings could be held in accordance with the proper procedures.

Once a challenge to a set of disciplinary proceedings had been resolved,

substantive decision would be made in the proceedings on the basis that

its legality is settled. After such decision has been implemented, there

is a public interest that generally the legality of the decision should not be

re-visited.

30. This public interest is not confined to a second challenge

with a view to reversing the decision to dismiss / compulsorily retire an

officer. It equally applies in respect of claims for damages. As Mr

Dykes submitted before us, it would be unrealistic to expect the four

plaintiffs to be reinstated. Likewise, it would be unrealistic to expect

fresh sets of disciplinary proceedings in accordance with Lam Siu Po to

be conducted in light of the lapse of time and lapse of memories of the

witnesses concerned. Thus, the Commissioner has lost the option to test

the validity of the decisions to terminate their services by fresh sets of

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disciplinary proceedings in resisting the claims for damages. Since any

award of damages would have to be paid out of public fund, the prejudice

suffered by the Commissioner in his defence is also prejudicial to the

public interest.

31. The second facet of the relevant public interest is finality in

litigation. This facet of public interest manifests itself in several ways.

The Judge referred to the cases on applications for extension time for the

bringing of an appeal on account of the change brought about by Lam Siu

Po. Mr Shieh drew our attention to the judgment of Chan PJ (with

whom Ribeiro PJ, Litton NPJ and Gleeson NPJ agreed) in Chau Cheuk

Yiu v Poon Kit Sang (2012) 15 HKCFAR 460. At paras 53 to 55, His

Lordship succinctly summarised the relevant considerations and the

importance of the finality principle:

“53. When considering an application for extension of time to lodge an appeal, the court must have regard to all the circumstances in deciding whether the overall justice of the case requires the exercise of the discretion to extend time. This involves an assessment of all relevant factors, such as the strength of the proposed appeal, the length of the delay, the reasons for the delay, the interest of society to have finality in litigation and the interests of the parties affected. The party seeking indulgence must satisfy the court that an extension of time is merited.

54. Where the sole or real ground of the proposed appeal is that there was a previous misunderstanding of the applicable law, the principle to be applied for determining whether to grant an extension of time was stated by this Court in Hung Chan Wa. In that case, Chief Justice Li (with whom the other members of the Court agreed), having considered the relevant overseas jurisprudence, held that this ground by itself would not justify an extension but that there could be exceptional circumstances in a particular case which would justify an extension. He added that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.

55. It is acknowledged that in the majority of cases, this principle may create a sense of grievance for the parties

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concerned. However, the finality principle is considered as of such critical importance to the overall administration of the justice system that this factor outweighs other factors save in exceptional circumstances in which case extension should be granted. Where such exceptional circumstances exist, one would expect that they would be plain and obvious and readily identifiable.”

32. In that case, one of the matters relied upon as exceptional

circumstances was the explanation by the judge at first instance on the

then state of authorities which led the applicant to abandon a challenge to

the constitutionality of the Regulations. The majority of the Court of

Final Appeal did not regard that as giving rise to exceptional

circumstances to warrant an extension of time, see paras 73 to 78. The

extension of time granted by the Court of Appeal was therefore set aside.

For present purposes, what was said by Chan PJ at para 74 of the

judgment is relevant:

“… If the judge had not given any advice to Mr Chau but had gone ahead to hear the argument on the art 10 issue and decided the point, I do not think there would be any exceptional circumstance under the Hung Chan Wa principle. So why would the judge’s advice make any difference?”

33. That was what happened in the case of Ho. In respect of

Lai, Ng and Leung, they did not challenging the constitutionality of the

Regulations in their respective judicial review application either due to

advice they had obtained or for other reasons. By parity of the

reasoning of Chan PJ, no matter what the reason was, they could not rely

on that to make out a case of exceptional circumstances.

34. In Clarence Chan v Commissioner of Police (2010) 13

HKCFAR 462, Bokhary PJ explained the importance of finality in

litigation at para 7:

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“It is in the nature of our legal system that the view of the law on which a litigant lost may be overruled in another case decided after the time for him to appeal has expired. Finality in litigation being so important, such overruling cannot of itself justify an extension of time for appealing. There can of course be exceptional circumstances that would justify such an extension. But such circumstances are so exceptional that they would very rarely arise.”

35. Another way in which this facet of public interest manifests

itself is the striking out of collateral attack on a final decision of the court

as an abuse of process as in Hunter v Chief Constable of West Midlands

Police [1982] AC 529. At p.542C, Lord Diplock cited the judgment of

Lord Halsbury in Reichel v Magrath (1889) 14 App Cas 665 at p.668 as

the applicable principle:

“… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same again.”

36. Whilst the constitutionality of the Regulations had been

decided in Ho’s judicial review, it had not been raised in Lai, Ng and

Leung’s cases. However, the Henderson v Henderson principle catches

cases where an issue could and should have been litigated in an earlier set

of proceedings. As Ma CJHC (as he then was) said at para 62 of the

judgment in Chiang Lily v Secretary for Justice [2009] 6 HKC 234,

“Much therefore depends in any given case on the precise circumstances as to whether or not the attempt to raise an issue for determination in proceedings will constitute an abuse where such an issue could have been raised in previous proceedings. Where an issue should have been raised, it is likely that an abuse has occurred.”

37. Given that the principle of finality is the common underlying

public interest involved in these cases, the policy adopted in cases on

extension of time must be relevant in the cases for striking out attempts

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to re-litigate. This is expressly recognised by Lord Keith in Arnold v

National Westminster Bank [1991] 2 AC 93 at p.109G.

38. Mr Dykes submitted that in the striking out context, the

applicable test is Johnson v Gore Wood and there is no need for the

plaintiffs to show exceptional circumstances as in an application for

extension of time to appeal. Whilst we agree that the applicable test is

the broad merits-based assessment propounded by Lord Bingham in

Johnson v Gore Wood, we are of the view that in such assessment the

court should bear in mind the importance ascribed to finality in litigation

in the administration of civil justice. Thus, even though it may not be

necessary for the plaintiffs to show exceptional circumstances to resist a

striking out application on the ground of Henderson v Henderson abuse

of process, the court is entitled to examine what reasons are given by the

plaintiffs to weigh against the public interests canvassed above. In the

context of a case where reasons given were not sufficient to give rise to

exceptional circumstances to warrant extension of time to be granted for

appeal, the court has to ask itself whether the pursuit of the second action

is a collateral attack on the decision in the first action and as such it

would bring the administration of justice into disrepute to allow it to be

brought.

39. In Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72, Ma

CJ set out at para 83 of the judgment some facets of the exercise of the

power to strike out on the ground of Henderson v Henderson abuse of

process,

“(1) The starting point is to recognise that the doctrine is founded on an abuse of process. As Lord Willberforce said in Brisbane City Council v A-G for Queensland, “it ought only to be applied when the facts are such as to amount to an abuse: otherwise, there is a danger of a

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party being shut out from bringing forward a genuine subject of litigation”: (p.425).

(2) This concern (that a party ought not lightly to be deprived of the right to have serious matters litigated) was echoed by Lord Millett in Johnson v Gore Wood & Co : (p.59D-G).

(3) It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings. This abuse will usually take the form of the other party being “vexed” (or in some cases, the terms “oppressed”, “unjustly harassed” or “unjustly hounded” are used) by the subsequent set of proceedings: Johnson v Gore Wood & Co, 31A-B.

(4) The abuse can also take the form of the administration of justice being brought into disrepute: see Chiang Lily, 256D-G ([58]) referring to Hunter v Chief Constable of the West Midlands Police [1982] AC 529. With the procedural reforms introduced by the Civil Justice Reform in 2009, the courts in Hong Kong must now, when exercising their procedural powers, increasingly bear in mind not just the parties before them in any particular litigation but also the position of other litigants in the court process. RSC O.1A r.1(f) states as one of the underlying objectives of the court’s procedural powers under the Rules to be “to ensure that the resources of the court are distributed fairly”.

(5) In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice. It is important therefore here to emphasise that when the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppels or cause of action estoppels. On the contrary, in considering this type of abuse the court is required to assess a number of factors and balance competing interests. See here, Bradford and Bingley Building Society, 1490F-H. It is also worth making the following observations at this juncture:

(a) There is conceptually an important distinction between absolute bars such as issue estoppels and the type of abuse with which we are

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concerned. In the former situation, the party who seeks to re-litigate an issue or cause of action has already had his day in court, whereas in the latter situation, that party has not: cf Johnson v Gore Wood, 59D (“It is one thing to refuse to allow a party to re-litigate a question which already has been decided; it is quite another to deny him the opportunity of litigating for the first time a question which is not previously being adjudicated upon” (Lord Millett)).

(b) The assessment of different factors and balancing competing interests can be said to be an exercise of a discretion. A number of decisions of the English Court of Appeal have cast doubt on whether the court does indeed exercise a discretion as such: see Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 748, 762C-D ([16]) and Stuart v Goldberg Linde [2008] 1 WLR 823, 845E-846C ([81]). It is unnecessary for present purposes to decide whether or not a discretion is actually being exercised. The more important point to bear in mind is that an appellate court is obliged to pay sufficient regard to the decision of the court below and should be reluctant to interfere where the decision is based on the assessment or balancing of a number of factors. Nothing in the two said cases suggests otherwise; in fact, quite the contrary.”

40. In the present appeals, as we said above, it is quite plain that

the plaintiffs could not get leave to appeal out of time in their respective

judicial review applications. Thus, as submitted by Mr Shieh, one must

examine whether there are valid reasons for allowing these plaintiffs to

have a second bite of the cherry in the form of civil claims for damages

in respect of the same decisions on the termination of their services when

they could no longer challenge such decisions by way of judicial review.

If the civil claims could proceed even without any good reason to permit

the same, the principle laid down in the extension of time cases can easily

be circumvented.

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41. There is no doubt that the Judge was correct in holding that

the constitutional challenge to the Regulations could be advanced in the

judicial review proceedings. Aside from the points taken by Mr Dykes

on the applicability of res judicata in respect of judicial review (which

we have rejected earlier), the plaintiffs relied on the argument that they

(and their legal advisers) could not be said to have acted unreasonably in

not pursuing (or pursuing further in the case of Ho) the constitutional

challenge in view of the then state of authorities. But that can be said in

respect of all cases where the perception of the common law is changed

by a subsequent decision. We do not think this reason per se can be

sufficient. For reasons given above, the fact that the plaintiffs are now

claiming damages instead of reinstatement to their offices is also not

enough.

42. As the Chief Justice emphasised, it is a matter of balancing

competing interests. In the instant cases, we have on the one hand the

private interest of the plaintiffs to have redress for the irregularity in their

disciplinary proceedings in terms of the denial of the opportunities to

seek legal representation. On the other hand, there are strong competing

public interests identified above.

43. Though we accept, like Chan PJ did in Chau Cheuk Yiu v

Poon Kit Sang (2012) 15 HKCFAR 460, that the plaintiffs would have a

sense of grievance if their claims are struck out, we are of the firm view

that the balance clearly comes down in favour of the Commissioner in

these cases.

44. Thus, we agree with the Judge that the constitutional

challenge should have been advanced in the judicial review proceedings

and it is an abuse of process to advance those claims in the writ actions.

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45. Therefore we uphold the decision of the Judge to strike out

the plaintiffs’ action.

46. In light of this conclusion, it is not necessary for us to

consider the submissions on limitation and reasonable cause of action.

We express no view on those grounds of attack by the Commissioner.

47. We dismiss the appeals and make an order nisi that each of

the plaintiffs shall pay the costs of the Commissioner in his respective

appeal. Since we do not rule on issue raised by the respondent’s notices,

we make no order as to costs in respect of the same.

(M H Lam) Vice President

(Susan Kwan) Justice of Appeal

(Jeremy Poon) Judge of the

Court of First Instance Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Michael Pang &

Co, for the Plaintiff (CACV 175/2012) Mr Philip Dykes, SC and Mr Hectar Pun, instructed by JCC Cheung &

Co, for the Plaintiff (CACV 200/2012) Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Stanley K Y Ng

& Co, for the Plaintiff (CACV 228 and 229/2012) Mr Paul Shieh, SC and Mr Mike Lui, instructed by Department of

Justice, for the Defendant (4 cases)

Documents

CACV175_2012