SZE CHING LOK AND OTHERS v. CHINA RESOURCES POWER HOLDINGS CO LTD

HCMP1655/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1655 OF 2013

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REASONS FOR DECISION ( NO. 2 )

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INTRODUCTION

1.  On 18 October 2013, I allowed the respondent’s application and expunged the bulk of A1’s 2^nd Affirmation : see the Reasons for Decision dated 31 December 2013.  After taking instructions from the applicants, Mr Horace Wong, SC, told me that despite my ruling, his clients still wished to proceed with the application.  I then discussed with senior counsel as to their availability.  Having secured the earliest available date that suited counsel and the court, I adjourned the originating summons to 6 and 7 January 2014 for substantive argument.

2.  By summons dated 13 December 2013, the applicants sought to amend the originating summons, which was strenuously opposed by the respondent.

3.  On 6 and 7 January 2014, I heard the applicants’ amendment summons.  After I refused the amendments sought, the applicants sought leave to withdraw the originating summons.  The respondent opposed and as an alternative argued that leave could only be granted on the condition that the applicants should not be allowed to pursue in any fresh proceedings any matter which is the same or substantially the same as contained in the originating summons and the proposed amendments.  In the end, I gave the applicants leave to withdraw the originating summons unconditionally.

4.  The following are the reasons for my decision.

AMENDMENTS

5.  The proposed amendments are quite substantial.  They mainly sought to introduce the fresh complaints or matters contained in A1’s 2^nd Affirmation which I had expunged.  They also dealt with some so-called further breaches of duties on the part of the Directors.

6.  When I adjourned the matter to 6 and 7 January 2014, the court and the parties all proceeded on the basis that the originating summons would be argued it its original form without any amendment.  Mr Wong’s indication was indeed quite bold and explicit.  He would argue the originating summons in its original form without relying on the fresh complaints contained in A1’s 2^nd Affirmation or any amendment.

7.  If I were to accede to the applicants’ application, I would be allowing them to rely on the new complaints. I think the applicants owed the court a credible explanation why, in light of Mr Wong’s unequivocal stance and indication at the last hearing, they now saw fit to change their mind.  They needed to satisfy the court why this U-turn was permissible.  But I could see no credible explanation at all.

8.  When I picked the hearing date in January 2014 from my heavily scheduled diary, I was making an exception to the normal practice of listing.  Under the normal practice, in a situation such as the present, the parties would have to approach the listing officer for fixing the part-heard date.  And in fixing the part-heard date, the listing officer would have to take into account the current state of my diary and all other cases which are pending before her for fixing hearing dates.  Put bluntly, the parties would have to re-join the queue, as it were, to get the part‑heard date from the listing officer.  So when I fixed the hearing to 6 and 7 January 2014, I was, in a way, allowing the parties to jump the queue.  And I did so on the basis that the originating summons would be argued in its original form without any amendment.  I was hoping that the matter could soon be disposed of at the part-heard hearing.

9.  As mandated by Order 1A, rule 1(f) and Order 1B, rule 1(2)(l) of the Rules of the High Court, I must ensure that the court’s limited resources are distributed fairly in case management.  I think it is wrong for the applicants, having jumped the queue in securing the part‑heard dates for substantive argument of the originating summons in the original form, only to squander them on an application to substantially amend, which would inevitably result in a further adjournment, thereby imposing additional burden on the court’s diary and resources.  The court’s time and resources should not and cannot be wasted by such litigation tactics.

10.  For these reasons, I disallowed the applicants’ amendment application.

WITHDRAWAL

11.  I could see no reason why I should force the applicants to continue with the originating summons in its original form.

12.  I had not dealt with the substance of the applicants’ complaints in the originating summons. Further, when I disallowed the applicants’ amendment application, I was exercising my case management power to impose some form of discipline on them as to how they should conduct the litigation.  I had not dealt with the substance of proposed amendments.  In the circumstances, I think it would be rather unfair if I were to impose the condition contended by Mr Yu.  I think the applicants should be given a chance to ventilate their complaints, whether in the originating summons or the proposed amendments, in any fresh proceedings that they wish to institute later.

13.  For these reasons, I granted the applicants unconditional leave to withdraw.