WANG XI v. LEE POK HOK, ANDREW

[English Translation – 英譯本]
HCMP 1261/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1261 OF 2011

(ON AN INTENDED APPEAL FROM DCCJ NO. 4968 OF 2009)

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BETWEEN

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JUDGMENT

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Hon Kwan JA (giving the judgment of the Court):

1.  The applicant Ms Wang xi is the plaintiff of district court case dccj 4968/2009, and mr lee bok hok, andrew is the defendant. Both of them have been acting in person. The case was dealt with by Deputy District Judge K Lo on 26 april 2011. Deputy Judge Lo delivered judgment on 18 May 2011 against Ms Wang with no order as to costs. On the same day Ms Wang asked for leave to appeal to the Court of Appeal. After hearing the submissions of both parties on 20 June, Deputy Judge Lo on 5 july refused the application and ordered Ms Wang to pay mr lee $500 as the costs in the application. on 6 July, Ms Wang filed this summons, asking the Court of Appeal for leave to appeal.

2.  In respect of this application, Ms Wang has submitted one four-paged document titled “Plaintiff’s Grounds for Asking the Court for Leave to Appeal”, one one-paged affidavit and one ten-paged document titled “Supplementary Statement of Plaintiff’s Application for Leave to Appeal – Objections to Deputy Judge K Lo’s Judgment dated 5 July 2011” together with two appendixes. Mr Lee did not submit any statement in opposition.

3.  According to Order 59, rule 2A(5)(a) of the Rules of the High Court, the Court of Appeal may determine the application without a hearing on the basis of documents submitted. This Court finds that it is appropriate to deal with Ms Wang’s application on paper. In dealing with this application, apart from considering the two judgments given by Deputy Judge Lo and the abovementioned documents submitted by Ms Wang, this Court has also read all the documents filed with the lower court.

4.  Section 63A(2) of the District Court Ordinance, Cap. 336 provides that leave to appeal shall not be granted unless the Court of Appeal is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

Ms Wang’s claim

5.  The plaintiff’s claim should be stated in a statement of claim, which must disclose the cause of action, contain a statement in summary form of the material facts on which the claiming party relies, and show the grounds supporting the relief or remedy claimed. All these are the basic requirements of the pleading filed for a claim; see Order 18, rules 7(1) and 15(1) of the Rules of the District Court, Cap. 336H. With regard to the nature of this case, such a pleading is of utmost importance.

6.  Ms Wang has never filed any statement of claim in this case. Although she has submitted a number of documents, namely a writ of summons attached with a “general indorsement of the writ”, a reply, a statement of issues, a witness statement and an opening submission, they cannot replace or serve the functions of a statement of claim. The material facts stated in the statement of claim enable the other party and the court to know at the beginning if the facts relied on give rise to a cause of action. The cause of action or the facts claimed in pleadings cannot be added or altered arbitrarily by the filing party and prior approval has to be sought from the court for amending pleadings. This not only ensures procedural fairness, but also avoids the occurrence of anything unexpected in the course of the action so that the action can proceed smoothly and the time and costs required can be reduced. Since there was no statement of claim in this case, difficulties were inevitable in dealing with it, in particular when Ms Wang’s cause of action was not clear and inherently problematic.

7.  With regard to the “general indorsement of the writ” attached to the writ of summons, the contents are as follows:

“1. The defendant should bear the compensation for injury of feelings because of having caused personal injuries to the plaintiff wilfully and rashly, and should be liable for all associated expenses until the plaintiff fully recovers.

2. The defendant should pay the hospitalisation expenses incurred by the plaintiff’s suicidal attempt which was a result of the plaintiff’s coercion, and also the expenses paid by the plaintiff’s family for coming to Hong Kong to take care of her.”

8.  In respect of the material facts that Ms Wang relied on, it was only in the “statement of issues” filed by her on 28 July 2010 could clearer statements be found. Relevant paragraphs are hereby quoted as follows:

“Summary of the factual background in this case:

In July 2003, having wilfully got the plaintiff drunk, the defendant took the plaintiff to Grampian Mansion where sexual intercourse took place. In order to prevent the plaintiff calling the police, the defendant at that time cheated the Plaintiff, claiming himself to be single and unmarried. He has also met the Plaintiff’s parent(s) and promised to marry the Plaintiff as a remedy. After that, the defendant appeared to be very sincere to the plaintiff and so the plaintiff also treated the defendant as her fiancée.

One month afterwards, having been sure that the plaintiff would not make any report to the police, the defendant said that he had already got married and could not keep his promise. Moreover, he has for more than once provoked the plaintiff and urged her to commit suicide, which directly led to the plaintiff’s suicidal attempt in 2005, subsequent hospitalisation and chronic depression. The defendant’s behaviour has seriously damaged the plaintiff’s right of life and health.

From then on till 2009, the plaintiff has repeatedly tried to contact the defendant so as to negotiate and work out solutions. However, the defendant kept on lying and evading in response. In his view, the plaintiff’s pursuit was disturbance, and he refused the plaintiff’s proposal of going to the Judiciary for mediation.”

“Plaintiff’s reason to sue:

The defendant’s series of deceptive and injurious talk and behaviour have directly caused the plaintiff depression. Hence, the defendant should bear the compensation for damaging another person’s right of life and health.”

“The cause and liabilities in this case:

The plaintiff stated: In 2003, the defendant deliberately got the plaintiff drunk to achieve the purpose of having sex with the plaintiff. He also claimed himself to be single and unmarried, and promised to marry the plaintiff. Having been sure that the plaintiff would not make a report to the police, the defendant reneged on the agreement and further evaded responsibilities.”

“Liability and form of compensation:

Item 1: $50,000 for the plaintiff’s family to come to Hong Kong to take care of her after the defendant had caused her to attempt suicide and be hospitalised.

Item 2: The defendant has directly caused the plaintiff depression. As to the medical expenses that would be incurred, basing on the charging rate of Hong Kong hospitals, the minimum charge would be around $3,000 each time, i.e. $30,000 per month, until full recovery.”

9.  With regard to the total sum claimed, Ms Wang made a further different representation in her opening submission. She claimed that Mr Lee had caused her psychological harm which would be incurable even in ten or twenty years. Apart from medical expenses, a new item called “charge for loss of working time” for her in an amount of $10,000 per month was added. She said that the amount claimed should be over one million dollars in total, however, since the action was initiated in the District Court, she was not going to apply for the amount exceeded. Moreover, she also took into account that Mr Lee had on his own volition contacted her family and visited her at the hospital in 2005, and thus only requested him compensation of $900,000 in total.

10.  According to Ms Wang, the prime focus of the disputes was what happened in mid-July 2003 in respect of the sexual relationship. The background of the incident was that in late June in the same year, the two of them got acquainted with each other because of business. Ms Wang was a resident of Shanghai municipality and aged 30 at that time. She appeared to be well educated and was a merchandising manager in a foreign capital company. Mr Lee was a Hong Kong businessman and was then aged 31.

11.  Ms Wang made a report to the police, accusing Mr Lee of having raped her in July 2003. After investigation, due to insufficient evidence, the police did not prosecute Mr Lee for any criminal offence. Hence, on 23 November 2009, Ms Wang lodged a claim in the District Court to initiate civil proceedings against Mr Lee.

12.  Ms Wang claimed that what she filed was a claim of damages in tort involving the injuries on her physical and mental condition, i.e. personal injuries. Under section 27(4) of the Limitation Ordinance, Cap. 347, she had to bring legal action within three years from the date on which the cause of action accrued, the same applies even for intentional trespass to the person including sexual assault. See the House of Lord case of A v. Hoare [2008] 1 AC 844. No matter the date on which the cause of action accrued is July 2003 (the time of having sexual intercourse) or July 2005 (the time when Ms Wang took drugs to attempt suicide and failed), the time limit under the Limitation Ordinance has already expired as far as the writ of summons issued on 23 November 2009 is concerned. Mr Lee was unrepresented, and did not put forward limitation of action as part of his defence pursuant to Order 18, rule 8(1) of the Rules of the District Court.

The trial judge’s decision

13.  Deputy Judge Lo found that the two parties had had sexual intercourse, including the occasion at Grampian Mansion in July 2003. Mr Lee denied having had sexual intercourse with MsS Wang at any time and claimed that they had never got together as boyfriend and girlfriend, which the Deputy Judge found to be unbelievable. From the transcript of the recording of the telephone conversation and the photographs of the two of them submitted by Ms Wang, the Deputy Judge found that the relationship between the two parties at that time was intimate and obviously beyond that of ordinary friends. As for the Grampian Mansion incident, Mr Lee explained that Ms Wang had a fear of darkness and he was only accompanying her inside the room until dawn. The Deputy Judge found the explanation inherently improbable.

14.  In respect of the Grampian Mansion incident, as to whether Mr Lee’s behaviour amounted to trespass to the person, the Deputy Judge needed to consider if he had, without any lawful reason or Ms Wong’s consent, directly caused her body to suffer substantial deliberate interference. Ms Wang alleged that he had had sexual intercourse with her without her consent. This was a very serious allegation. The more serious the allegation, the more cogent should be the evidence required for the allegation to be established on the balance of probability as the requisite standard of proof, see Re H & Ors.(Minors) [1996] AC 563, page 586.

15.  Although the Deputy Judge believed undoubtedly that they two had sexual intercourse on that day and that Ms Wang was not strong enough to stand the alcohol and vomited, it was still necessary to consider if she was involuntary at the material time. The burden of proof was on Ms Wang to prove that she herself was involuntary. The Deputy Judge noted that Ms Wang said she had resisted at that time, however, she gave no detailed account of her resistance, and did not explain why subsequently she agreed to have the matter resolved by Mr Lee’s promise of marrying her, or why because of such promise, she chose not to make a report to the police and treated Mr Lee as her fiancée. Because of these responses, the Deputy Judge could not be satisfied upon consideration that Ms Wong had successfully proved the case on the balance of probabilities.

16.  Ms Wong also alleged that Mr Lee had urged her to die, causing her to take drugs to attempt suicide in 2005, and thus he should be liable for compensating her. The Deputy Judge found that it was not necessary to decide if Mr Lee had contravened section 33B of the Offences Against the Person Ordinance, Cap.212 as this was a civil case. In respect of the undisputed facts, namely Mr Lee told Ms Wang to go to die while quarrelling, the Deputy Judge found that the act itself was not actionable and did not give rise to a cause of action.

17.  The Deputy Judge finally added that Mr Lee’s failure in keeping his promise of marrying Ms Wang did not give rise to a cause of action though such behaviour might be seriously immoral. Therefore, she gave judgment against the plaintiff, and after considering all the circumstances in this case, exercised her discretion and made no costs order.

Grounds of the intended appeal

18.  Ms Wang has advanced four main grounds of appeal. First, the trial judge has decided wrongly because of her adopting an unreasonable rationale. Second, the Deputy Judge has arbitrarily denied the plaintiff’s basic human right. Third, the Deputy Judge has used moral difference as a defence to tortious act, legalising unlawful act. Fourth, the decisions made by the Deputy Judge were contrary to the factual basis that she had found and apparently unfair. The Deputy Judge found that Mr Lee was a dishonest and unreliable witness and his evidence was unbelievable and not sensible, but the judgment was in his favour. This was against the principle of justice and reasonableness. She brought forward the case in accordance with the law, but the court held that her complaint against the defendant was not actionable and gave rise to no cause of action, which was a very “ridiculous, rash and unjust decision”.

19.  In the documents submitted to this Court, apart from the offence of rape, Ms Wang also alleged that Mr Lee had committed other criminal offences, which were under section 120 (procurement by false pretences), and section 121 (administering drugs to obtain or facilitate unlawful sexual act) of the Crimes Ordinance, Cap. 200. She reiterated that it was not of her own free will that she had sexual intercourse with Mr Lee in July 2003, and she failed to make a timely report to the police mainly because of his deceptive promise while her own reputation was also a concern.

20.  As for Mr Lee’s telling her to go away and die and her subsequent suicidal attempt by taking drugs, she said that he meant what he said and could well anticipate what the result would be.

21.  In the long ten-paged supplementary statement of application for leave to appeal, in objecting to Deputy Judge Lo’s judgment dated 5 July which refused the leave to appeal, Ms Wang attacked it point by point. Inappropriate, sharp and extreme expressions are not rare, showing her indignation and resentment. This Court does not see the need to quote them and will focus on discussing the following points.

Discussion

22.  The two parties had sexual intercourse in July 2003. As to whether Mr Lee’s behaviour constituted trespass to the person in tort, the crux of the issue was if Ms Wang was voluntary at the material time. Ms Wang contended that by not challenging her representation that she was involuntary, the other party just indicated his acquiescence and tacit admission. In fact, Mr Lee denied there had been any sexual intercourse at all. Hence, in not challenging her representation that she was involuntary, his position was understandable and could not be regarded as acquiescence. Although the Deputy Judge did not accept Mr Lee’s claim of not having any sexual intercourse with Ms Wang, and although on the issue of voluntariness, there was only evidence from Ms Wang, the Deputy Judge did not necessarily have to accept Ms Wang’s evidence.

23.  Ms Wang also complained that the Deputy Judge simply ruled against her without looking at the details involving privacy. As the plaintiff, Ms Wang bore the burden of proof and had to put forward all evidence in support of her arguments at the trial. Details involving privacy are no exception. In the common law system, the Deputy Judge does not make any investigation on his own accord and would not ask a party of an action to produce any specific evidence required for discharging the burden of proof. This Court does not think there is any procedural unfairness in the trial of this case as conducted by Deputy Judge Lo.

24.  Ms Wang referred to the result of police investigation on her complaint of rape, and claimed that the fact that the police had “opened a file” was sufficient to show that, in the police view, the facts reported amounted to a criminal case. She also said that the police, after investigation, did not think that it was a false report, or otherwise, she would have been charged with wasteful employment of the police. She said that this was also a kind of support of her evidence. That the Hong Kong Police commence investigation after receiving a complaint is not equivalent to agreeing or supporting the complainant’s allegation. There may be many reasons for the police not to bring criminal prosecution after investigation, and cannot be taken as supporting the evidence of the complainant or the complained person.

25.  The standard of proof adopted by Deputy Judge Lo is correct. Having considered all relevant evidence, she found Ms Wang failed to satisfy the court that she met the standard of proof in proving that she was not voluntary when having sexual intercourse at the material time. In respect of the findings of fact made by the trial judge, she had the advantage of observing and hearing the witnesses in assessing their evidence. This Court does not see any reason in law to interfere with such findings of fact made by Deputy Judge Lo.

26.  Ms Wong repeatedly referred to the criminal legislation of Hong Kong, alleging that the other party had contravened certain provisions of the Crimes Ordinance. Putting aside whether or not she could raise such new allegations for the first time in the application for leave to appeal, this Court is of the view that these new allegations can serve no purpose. Sections 120 and 121 of the Crimes Ordinance both base on the occurrence of “unlawful sexual intercourse”. If the sexual intercourse took place voluntarily, there would be no basis for these contraventions of the criminal ordinance.

27.  In respect of Ms Wang’s suicidal attempt by taking drugs, she claimed that it was the result that Mr Lee could have well anticipated, and that his failure to take proper and reasonable action was negligence, and his procuring the occurrence of what he had anticipated was wilfulness. No matter it was negligence or wilfulness, he was in breach of duty of care. Deputy Judge Lo has accepted what Ms Wang said, namely the two parties had maintained an intimate relationship as lovers for a short period, and later the other side became estranged from Ms Wang and their relationship turned sour. She then felt getting cheated of love and was hurt mentally, and after being taunted by Mr Lee who told her to die, she took drugs in attempt to commit suicide. Nevertheless, the Deputy Judge held that these were not actionable grounds. This is correct beyond doubt. In light of public policy, the law would not allow a person who can move around freely and has a sound mind to be granted damages for having attempted to commit suicide after being cheated of love.

28.  Finally, Ms Wang referred to a newspaper article of November 2009 which reported a judgment of the Taiwan Banciao District Court. In that case, the plaintiff had dated the defendant for three years and was cheated on. The defendant got married with another lady but kept the plaintiff in dark. The plaintiff was awarded compensation in the sum of four hundred thousand dollars. It was said that the case might be used as a reference in common law cases. Taiwan is not a place of common law jurisdiction. The law of Taiwan is obviously distinguishable from that of Hong Kong. The case that Ms Wang has referred to is not applicable.

Conclusion

29.  Ms Wang’s grounds for the intended appeal do not have any reasonable prospect of success and there is not any other reason in the interests of justice why the appeal should be heard. The application for leave to appeal is refused. In pursuant to Order 59, rule 2A(8) of the Rules of the High Court, this Court also orders that she may not make any request under rule 2A(7) for the determination to be reconsidered at a hearing that both parties attend.

30.  Since Mr Lee has not submitted in any statement in opposition, this Court makes no order as to costs for this application.

[1] The section stipulates that a person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence triable upon indictment and shall be liable on conviction to imprisonment for 14 years.

[2] Breach of promise of marriage was formerly actionable and the plaintiff might have an engagement to marry enforced as a contract and might also claim for damages, see Cheung Suk Man v. So Shek Keung [1965] HKLR 485.  However, this kind of action was repealed on 7 October 1971, see section 23 of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23.