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CACV 175/2012,
CACV 200/2012,
CACV 228/2012
and CACV 229/2012
(Heard together)





2012175
2010381










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 J USTICE
for and on behalf of
THE COMMISSIONER OF POLICE
Defendant


AND
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 228 OF 2012
(ON APPEAL FROM HCA NO. 480 OF 2010)


BETWEEN

LAI YING ON Plaintiff
and

SECRETARY FOR J USTICE
for and on behalf of
THE COMMISSIONER OF POLICE
Defendant


AND
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 229 OF 2012
(ON APPEAL FROM HCA NO. 508 OF 2010)


BETWEEN

NG SAI HING Plaintiff
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and

SECRETARY FOR J USTICE
for and on behalf of
THE COMMISSIONER OF POLICE
Defendant

(Heard Together)

Before: Hon Lam VP, Kwan J A and Poon J in Court
Date of Hearing: 13 May 2014
Date of J udgment: 26 May 2014
J U D G M E N T
Hon Lam VP (giving the J udgment 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
Commissioners 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 J une 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;
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 J uly
2012, Deputy High Court J udge Saunders [the J udge] 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 J udge only accepted two of them. The grounds
accepted by the J udge 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 J udge 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 J SC (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 J udge 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 J udge 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 Binghams 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 Hos
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 CJ HC (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 Appeals 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 CJ HC (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; Kings 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 Hos and Lais 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 J udge 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 judges 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 Hos judicial review, it had not been raised in Lai, Ng and
Leungs 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 CJ HC (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 J ustice
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 courts
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 J udge 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 J ustice 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 J udge 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 J udge 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 respondents notices,
we make no order as to costs in respect of the same.







(M H Lam)
Vice President
(Susan Kwan)
J ustice of Appeal
(J eremy Poon)
J udge 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 J CC 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
J ustice, for the Defendant (4 cases)