CHOY BING WING v. HONG KONG INSTITUTE OF ENGINEERS

HCA 309/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 309 OF 2015

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REASONS FOR DECISION
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Background

1. The plaintiff (“Plaintiff”) is a member of the Hong Kong Institution of Engineers, which he mistakenly referred to as the “Hong Kong Institute of Engineers”.  The Hong Kong Institution of Engineers (the “Institution” or “Defendant”) is a body corporate set up under the Hong Kong Institution of Engineers Ordinance (Cap 1105).  Hitherto, the Plaintiff and the Institution conducted this and other litigations on the basis that they are proper parties to the litigations.  For the purpose of this appeal, I shall also proceed on that basis but remind the parties of the need to amend the pleadings. 

2. Under Article 13 (4) (a) of the Constitution and Disciplinary Regulations of the Institution, if a member is found to have been guilty of improper conduct, the Council of the Institution may order the member to be expelled from the Institution, or that his membership be suspended, or that he be reprimanded or be removed as a member.  “Improper conduct” is defined in Article 13 (5) to include, inter alia, “conviction by a competent tribunal of a criminal offence which in the opinion of the Council renders a member unfit to be a member”.

3. The Plaintiff was committed for contempt of court on two occasions in HCMP 4694/2003[1] and in HCMP 1313/2010[2], for which he was sentenced to 6 months’ and 4 months’ imprisonment respectively.

4. On 17 January 2013, the Institution ordered that the Plaintiff’s membership with the Institution be suspended for three years with effect from 18 January 2013 to 17 January 2016 on the basis of the above improper conduct.  On 5 February 2015, the Plaintiff commenced the present proceedings against the Institution seeking a declaration that the Suspension Order is null and void.

5. On 3 August 2015, the Defendant took out a summons (“Defendant’s Summons”) applying to have the Plaintiff’s statement of claim struck out and action dismissed pursuant to Order 18 rule 19 of the Rules of the High Court and its inherent jurisdiction; and further or alternatively to have the following question determined by the court, pursuant to Order 14A rule 1:

“Whether the references to a person being “convicted of a criminal offence” in the Defendant’s Constitution and Disciplinary Regulations include the situation where a person was found guilty of criminal contempt of court”.

On the same day, the Defendant filed the affirmation of Chan Chi Chiu in support of the application (“Chan’s Affirmation”).

6. On 6 August 2015, the Plaintiff filed his affirmation in opposition to the Defendant’s Summons.

7. On 10 September 2015, the Plaintiff took out a summons seeking to strike out the Defendant’s Summons (“Plaintiff’s Summons”) and filed an affirmation in support of the application.  In my view, all these steps are quite unnecessary.  If the Institution fails to substantiate its application at the hearing, the Defendant’s Summons will be dismissed.  That would have the same effect as what the Plaintiff is seeking to achieve by his striking out application under the Plaintiff’s Summons.

8. At the hearing on 11 September 2015, Master Ho gave the following directions (the “Order”):

(1) The Defendant’s Summons and the Plaintiff’s Summons are to be heard together and adjourned to a date to be fixed with three hours reserved before a judge;

(2) The Plaintiff to file and serve a supplemental affirmation within the next 14 days from the date hereof in relation to the Defendant’s Summons;

(3) Leave be given to the Defendant to serve an affirmation in reply, if any, within 14 days thereafter;

(4) Affirmation in support of the Defendant’s Summons be treated as affirmation in opposition to the Plaintiff’s Summons;

(5) No further affirmation to be filed without leave of the Court; and

(6) Costs for both the Defendant’s Summons and the Plaintiff’s Summons be reserved.

9. These are usual directions to be given for the hearing of inter parte summonses.  But the Plaintiff took great exception to the words “if any” in paragraph (3) of the Order.  On 14 September 2015, the Plaintiff filed a notice of appeal against Master Ho’s Order and seeks to set aside the words “if any” in paragraph (3) of the Order.  He also filed a third affirmation in support of his appeal.  The appeal was set down before me for hearing on 22 September 2015.

10. On 17 September 2015, the Defendant’s solicitors, Messrs Wilkinson & Grist, applied by letter to be excused from the hearing on costs considerations but furnished a written skeleton argument. I granted that application. 

 Discussion

11. The thrust of the Plaintiff’s ground of appeal is that Chan Chi Chiu, the current president of the Institution, gave a perjured statement in paragraph 5 of Chan’s Affirmation that the Plaintiff was sentenced to prison twice.  The basis of the Plaintiff’s assertion is that notwithstanding his was twice committed for contempt of court, he was not convicted and sentenced to prison.  Whether that proposition is correct is a point of law to be determined at the substantive hearing of the Defendant’s Summons and the Plaintiff’s Summons. 

12. The directions given by the Master was a matter of case management for the master.  The master has wide discretion in case management matters which the appellate court will not interfere, unless the master has erred in point of law.  Here, the directions given were usual and proper directions for the expedient disposal of the two summonses.  An applicant in an application usually has the chance of the ‘last word’.  Thus, in respect of the Defendant’s Summons, it was proper for the master to grant leave to the Defendant to file its affirmation in reply to the Plaintiff’s affirmations.  By adding the words “if any”, the master gave the Defendant the option of filing or not filing any affirmation in reply if the Defendant considers it unnecessary. 

13. The Plaintiff complains that by giving the option the Defendant would be at liberty not to file affirmation in reply and he would be deprived of the opportunity of requiring an answer from the Defendant, in particular Chan Chi Chiu, to his accusation of fraud and perjury.  With respect, I disagree with that submission.  Even without the words, “if any”, the Defendant may choose not to file affirmation in reply by default.  At the substantive hearing of the two summonses, the court will determine their merits on the basis of the evidence in the affirmations filed. If the Defendant chooses not to file any affirmation in reply, it would forgo its right and opportunity to tender evidence to rebut the evidence filed by the Plaintiff.  If the Defendant chooses not to respond to any evidence in the Plaintiff’s affirmations, it will work to the advantage of the Plaintiff.  The court will not be able to consider any new evidence other than that which is already filed.  The Plaintiff will be spared of the burden of having to deal with any evidence contained in the affirmation in reply, if one is filed.  Of course, what I say is without prejudice to any evidence that was already filed.  The court will determine the merits of the two summonses on the basis of the evidence filed. 

Conclusion

14. The directions given by the master are usual directions for the expedient disposal of the two summonses.  They are fair and appropriate in the circumstances.  The master committed no error of law.  He could not be criticised for including the words, “if any” in the Order.  Accordingly, I dismiss the appeal with costs to the Defendant.  The costs are to be taxed, if not agreed.