LU CHENG TE RAYMOND v. LAM WAI KUEN

DCMP 4143/2022

[2023] HKDC 529

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4143 OF 2022

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BETWEEN

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D E C I S I O N

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Introduction

1.  There are three applications before me. Firstly, this is the substantive hearing of the plaintiff’s application for pre-action discovery adjourned from 9 February 2023. Secondly, the plaintiff is requesting to recuse me from hearing this case again by his affidavit filed on 30 March 2023. Thirdly, the plaintiff took out an inter partes summons this morning just before the hearing, seeking to amend the name of the defendant, to add two defendants, and make further discovery of CCTV footages. I will first deal with the plaintiff’s recusal application.

The Recusal Application

2.  The plaintiff’s ground for the recusal application is that I have dismissed his similar application in another case, DCMP 235/2022 on 4 January 2023. The legal principles governing recusal as recently summarised and applied by Deputy High Court Judge Winnie Tsui in Source View Development Ltd v Tang Kam Cheung (鄧錦祥) [2022] 2 HKLRD 1, citing Cosimo Borrelli as Trustee of the SFC Litigation Trust v Allen Tak Yuen Chan [2020] HKCFI 2382 are as follows:

“(1) The test is whether the circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that the tribunal is biased.

(2) The observer has a number of qualities. He is not unduly sensitive or suspicious. He takes a balanced approach to any information he is given. He takes the trouble to inform himself on all matters that are relevant. He appreciates that the context forms an important part of the material which he must consider before passing judgment.

(3) The party seeking recusal must articulate the reasoning justifying the recusal. There must be an articulation of the logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision-making.

(4) The mere fact that a judge has decided applications or issues in the past adversely to a litigant is not generally a reason for that judge to recuse himself at further hearings. The fair-minded and informed observer does not assume that because a judge has taken an adverse view of a previous application or applications, he will approach any future application with a closed mind or will pre-judge or will not deal fairly with all future applications.”

3.  Applying the above principles, the mere fact that I have dismissed the plaintiff’s similar application once before would not lead a fair-minded and informed observer to conclude that there is a real possibility that I am biased or will not deal the present summons fairly without any pre-judging. Therefore, the plaintiff fails to make out a justification for my recusal. His application is refused.

Background

4.  This is the plaintiff’s fourth application for pre-action discovery by originating summons, pursuant to section 47A of District Court Ordinance, Cap 336, in respect of certain CCTV footages of Winfield Gardens where the plaintiff is residing.

5.  The defendant is the chairman of the management committee of the Incorporated Owners of Winfield Gardens. Previously, the plaintiff has taken out similar actions against the former chairman of the management committee of the Incorporated Owners in HCMP 612/2021 and HCMP 2109/2021.

6.  The third similar application taken out by the plaintiff is DCMP 235/2022. The defendant in the third case is the former manager of the property management company. All of the aforesaid cases have been dismissed by the courts.

The Plaintiff’s Applications

7.  By the originating summons filed on 1 November 2022, the plaintiff is seeking discovery of the following documents:

(1) CCTV footages of lifts 2 and 3 on 6 September 2022 between 5:00 pm to 5:30 pm;

(2) all CCTV footages and documents of surveillance of 29 October 2022.

8.  By an inter partes summons taken out this day, the plaintiff is seeking leave of 12 weeks’ time extension to adduce medical expert evidence and leave to amend the originating summons, namely:

(1) amend the defendant’s name as LAM WAI KUEN;

(2) discovery of internal CCTV footages of Winfield Gardens lift number 2 from 3:50 pm to 4:10 pm;

(3) add Chan Joon Sun Johnson of Flat 8B of Winfield Gardens as defendant;

(4) add Mrs Yue of Flat 8A as defendant;

(5) other amendments.

9.  By consent of the parties, I grant leave to the plaintiff to amend the name of the defendant as LAM WAI KUEN in the originating summons. The plaintiff shall file the amended originating summons within 7 days hereof and service of the same be dispensed with.

10.  Regarding the plaintiff’s application for adjournment and leave to adduce medical expert evidence, I cannot see any justification for adducing medical expert evidence in a pre-action discovery application. Therefore, I refuse this application. In respect of further discovery of CCTV footages and joinder of further defendants, I will deal with those applications in due course.

11.  Prior to the call-over hearing on 9 February 2023, the plaintiff has already filed a total of 6 affidavits in support of his application on various dates, namely 17 November 2022, 21 December 2022, 10 January 2023, 20 January 2023, 31 January 2023 and 3 February 2023.

12.  At the previous hearing on 9 February 2023, I directed the plaintiff to file and serve a further affidavit in reply by 23 February 2023, but it turns out that the plaintiff has been disregarding my direction and filed 4 more affidavits out of time from 7 March 2023 to 31 March 2023.

13.  The contents of the plaintiff’s affidavits are incoherent and incomprehensible. Various exhibits are apparently irrelevant. The contents of the affidavits are summarised as follows:

(1) The incident of the first material date, ie 6 September 2022, was mentioned in the first affidavit dated 6 November 2022 filed on 17 November 2022. The plaintiff mentioned the arrival of police at Winfield Gardens on that day and recorded what the defendant allegedly spoke to the police. The attachments include some photos and two pages of a judgment. The relevance of the attachments is unexplained and all appear to be irrelevant.

(2) In the plaintiff’s second affidavit dated and filed on 21 December 2022, the plaintiff mentioned the encounter of the defendant on 29 October 2022 at the ground floor of Winfield Gardens car park and the three sentences uttered by the defendant to the plaintiff: (i) “你痴線㗎”; (ii) “行使虛假文件”; (iii) “要坐監㗎”. Then at about 12 noon on the same day, the plaintiff made a report of the above incident to the police of Happy Valley Police Station. The attachments include minutes of the AGM of Winfield Gardens dated 13 October 2017; and 3 photos. The relevance of the attachments is again unexplained and all appear to be irrelevant.

(3) In his third affidavit dated and filed on 10 January 2023, the plaintiff indicated his intention to seek leave to amend the originating summons of the present case but without attaching any draft amendment. The plaintiff also mentioned an Australian case, Pell v The Queen, with 78 pages of attachment including a copy of sections 47A to 47C of the District Court Ordinance, Articles 31 to 40 of the Basic Law, reasons for sentence of the criminal case DCCC 980/2015, reasons for determination of FAMC No. 48 and 49/2019, and a judgment of the aforesaid Australian case.

(4) In his fourth affidavit dated 18 January 2023 but filed on 20 January 2023, the plaintiff appended 27 pages of documents without explanation of their relevance, including but not limited to some photos, reasons of verdict of the abovementioned case DCCC 980/2015, land search results, excerpt of a US criminal case decision, notice of EGM and notice of AGM of the Incorporated Owners of Winfield Gardens of different dates, a letter from Knight Frank, the property manager, informing the addressee the registration of memorandum of charge against the subject property on 26 July 2019, and a copy of the car park floor plan.

(5) In his fifth affidavit filed on 31 January 2023, the plaintiff indicated his intention to lodge a report against the defendant to the police for using computers with dishonest intent, to commence a personal injury action against the defendant, to seek a court order to disqualify the defendant to act as the chairman or a member of the Incorporated Owners of Winfield Gardens during the course of these proceedings, his intention to amend the originating summons by adding a further discovery order against the defendant to disclose all personal information, correspondence, documents in written or electronic form, including WhatsApp messages, etc, related to the plaintiff or his place of residence between 7 September 2017 to 30 January 2023, and to seek clarification with this court regarding the language to be used in the judgment. The attachments are repetitive, including judgments of DCCC 980/2015 and FAMC 56/2018.

(6) In his sixth affidavit filed on 3 February 2023, the plaintiff gave his personal background and replied to the defendant’s affidavit filed on 31 January 2023. The attachments of this affidavit included many repeated documents which I am not going to list them all. Suffice to say that they are unexplained and apparently irrelevant.

(7) Regarding plaintiff’s 7^th to 10^th affidavits filed on 7, 24, 30 and 31 March 2023 respectively, I find that they contain no further reply to the defendant’s affidavit but convoluted and incomprehensible contents with repetitious or irrelevant attachments.

(8) The plaintiff’s 11^th affidavit is filed into court this day, 4 April 2023, together with the summons. The plaintiff repeated his personal background at page 1 and set out the service of certain attachments at page 2 of the affidavit. The following pages 3 and 4 are the list of attachments. Again, the plaintiff has failed to explain his basis for making his latest application in this supporting affidavit.

14.  I am not satisfied that the contents of the plaintiff’s letter dated 3 April 2023 have shown any relevance to this pre-action discovery application by adding Mr Chan, the resident of Flat 8B. Regarding the application for adding Mrs Yue of Flat 8A by summons dated 4 April 2023, the name of the intended defendant is apparently incomplete, and worse still, it is groundless.

15.  The date of the additional CCTV footage being sought by today’s summons is also unknown. Therefore, save and except for the amendment of the defendant’s name which I granted leave by consent of the parties, I dismiss the summons filed by the plaintiff today.

Legal Principles

16.  As the legal principles have been explained in plaintiff’s previous three similar cases, namely, HCMP 612/2021, HCMP 2109/2021, and DCMP235/2022, I assume that the plaintiff should be well aware of the principles by now and I am not prepared to repeat the legal principles. However, I would like to draw the plaintiff’s attention to the summary by Deputy High Court Judge Winnie Tsui in HCMP 2109/2021 at paragraphs 23 to 32.

Discussion

17.  Although the plaintiff indicated his intended course of action in his 5^th affidavit filed on 31 January 2022 to be a personal injury claim against the defendant, it is far from clear of what the intended action is about. Besides, there is nothing in all of his affidavit to show how the requested documents are directly relevant to any issues arising or likely to arise out of the intended claim. No reasonable basis to make such a personal injury claim has been made out by any of the affidavits. In other words, the plaintiff has failed to show a potentially meritorious claim.

18.  The plaintiff mentioned that the defendant attacked him on 6 September 2022 in a lift of Winfield Gardens during his oral submission today. However, such allegation has never been mentioned in any of the affidavits. Therefore, it is not an admissible evidence before the court.

19.  Further, I accept the unchallenged evidence of the defendant that CCTV footages of Winfield Gardens are only kept for a period of 7 to 10 days. Therefore, the preservation period of the requested footages of 6 September or 29 October 2022 have long lapsed. Apparently, the requested documents are no longer in the defendant’s possession, custody or power.

Conclusion

20.  In the circumstances, I find that the plaintiff’s application has failed to satisfy the jurisdictional conditions as discussed by Deputy High Court Judge Winnie Tsui in HCMP 2109/2021 at paragraphs 28 and 29. This application is unable to get off the ground as the jurisdiction to order pre-action discovery does not arise.

Order

21.  For the aforesaid reasons, I dismiss the plaintiff’s originating summons and the inter partes summons filed today, save and except for the amendment of the defendant’s name which I have granted leave by consent of the parties.

Costs

22.  Costs follow the event. I therefore refuse the plaintiff’s application for costs.

23.  After discussion, the defendant agreed to withdraw his application for legal fees but only seeking travelling expenses of HK$200. The plaintiff has no objection to such sum. Therefore, I order that the plaintiff shall pay defendant’s costs of this application forthwith, agreed at HK$200.