PHOON LEE PILING CO LTD AND ANOTHER v. THE HONG KONG HOUSING AUTHORITY

HCA 119/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 119 OF 2001

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J U D G M E N T

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1. This is an appeal brought by the Plaintiffs against an order made by Master H C Wong on 17 April 2002, acceding to an application by the Defendant to strike out certain paragraphs in the statement of claim as well as certain paragraphs in the answer to a request for further and better particulars of the statement of claim.

2. The Plaintiffs are not happy with the order and appeal against the order before me today. The Plaintiffs complain that, in support of the Defendant's application, an affidavit with some exhibits to it was filed and relied on by the Defendant and, in the affidavit and exhibits, the deponent told a lie relating to the short-piling complained about by the Defendant.

3. The Plaintiffs argue that the fraud or perjury thus committed on behalf of the Defendant automatically prevents the Defendant from proceeding with its application; the whole application is tainted with fraud.

4. This morning, the Plaintiffs asked me to decide that as a preliminary point. I refused to do so. I have given my reasons for my refusal in a separate ruling. I considered it much better to hear out the Plaintiffs' appeal first, before deciding the point - and, of course, also after hearing the Defendant on all the relevant points, including the alleged fraud and the merits of the appeal.

5. After I made my ruling, the Plaintiffs were not convinced about the correctness of my ruling and, more importantly, the Plaintiffs refused to carry on with the appeal despite my asking them to do so. Of course, if the Plaintiffs are not satisfied with my ruling, they can take the matter on appeal, if they think that is desirable or advisable. I am not concerned about that. But with the Plaintiffs refusing to proceed with the present appeal, the Defendant asks me to dismiss the appeal.

6. I have two things to consider. One is the complaint about the alleged lie made in the affidavit. Although I refused to decide the complaint as a preliminary point, it does not mean that I need not decide it at the end of the day. And the end of the day has arrived with the Plaintiffs refusing to proceed with the appeal, so I need to decide it before I can decide whether I should dismiss their appeal.

7. As I explained in my earlier ruling, if a party making an application relies on a knowingly false affidavit in support of his application, then even if it turns out that that affirmation is quite unnecessary for his application, the court may take that into account in refusing to grant him a discretionary relief. Mr Bartlett, counsel for the Defendant, does not dispute with that proposition.

8. So I turn to the lie complained about. This relates to paragraph 13 and, in particular, paragraph 13(iii) of an affidavit of Ho Shu Kee, filed on 4 December 2001. In this particular paragraph, Mr Ho deposed that, subsequent to a press conference held by the Defendant on 21 January 1999, piling tests were conducted and ICAC investigation was carried out which revealed, amongst other things, that a certain pile that was recorded as being 32.15 metres in length was only of 4.07 metres in length in reality. Mr Ho exhibited a number of documents in support of his allegation.

9. The Plaintiffs rely on page 20 of the exhibit bundle, which was one of those documents exhibited by Mr Ho in support of his allegation. Page 20 is a final set record prepared by the main contractor. It sets out, amongst other things, the embedded length of the pile in question, i.e. CC212A. It was prepared by the 1st Plaintiff's site agent. According to page 20, the embedded length was 32.15 metres. Page 20 was prepared by the site agent in 1998.

10. The Plaintiffs argue that page 20 is a record of the subsequent piling test conducted, or the subsequent ICAC investigation carried out, after the Defendant's press conference on 21 January 1999, referred to by Mr Ho in paragraph 13 of his affidavit. Since page 20 was made in 1998, so the Plaintiffs say that Mr Ho lied in his affidavit because page 20 cannot be a record of piling tests or investigation done or carried out after the press conference in 1999.

11. I do not accept this. On the documents before me, I have come to the conclusion that page 20 is a contemporaneous record by the main contractor and the 1st Plaintiff about the embedded length of the pile in question. That was a record prepared in 1998.

12. On page 22 of the same exhibit bundle, I do indeed have a record of the subsequent piling test conducted after the press conference, countersigned by the main contractor, the Defendant's representative and the ICAC's representative, to the effect that the length, or the embedded length of the pile in question, was only 4.07 metres.

13. So reading the two documents together, I am unable to find any lie in this regard told by Mr Ho in paragraph 13 of his affidavit. So for that reason, I reject this complaint about the Defendant making use of an affidavit containing a material lie in support of its application for the strike-out application and, therefore, there is no question of my considering the exercise of any discretion in the matter (by reason of the alleged lie).

14. Now, having disposed of this matter, I need to consider another matter. It is clear from the learned Master's ex tempore judgment that she decided to strike out the pleading because, in her view, the pleading failed to plead material facts identifying the Plaintiffs as the subject of the alleged slander.

15. I have read her ex tempore judgment which has since been transcribed. I agree with her reasoning. I agree that the pleading is defective. My only query, which I raised with counsel, is whether the Plaintiffs should be given a chance to amend their pleading to see if they can properly plead a case on identification.

16. Having heard Mr Bartlett, who appeared before the Master below, and having read part of the transcript of the hearing below suggesting that the Master had indeed already raised this possibility of making amendments to the statement of claim with the Plaintiffs, which was, apparently, not taken up, and having considered the whole circumstances of this case, I cannot say that the order made by the learned Master striking out the relevant paragraphs in the pleading and the answer was incorrect. I am not minded to disturb her order, even though this is a de novo hearing.

17. For all these reasons and given the refusal of the Plaintiffs to proceed with their appeal, and based on what I have heard, I dismiss the appeal, with costs. Perhaps to clarify it, I should say the Plaintiffs do pay to the Defendant forthwith its costs of this appeal, to be taxed if not agreed.