WONG TSZ YUK v. 香港警務處長鄧竟成先生及律政司司長

HCA 1699/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1699 OF 2008

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D E C I S I O N

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Introduction

1.  This is the plaintiff’s application for:-

(a)     trial of this action by judge and jury;

(b)    part of the defence to be struck out.

There was also an application for fixing the date of trial.  But the parties agreed at the hearing before me that matter had already been dealt with.

2.  The application is made by way of appeal to the judge against the master’s order dated 9 December 2009.  The defendants contend that the appeal is out of time.

Background

3.  The plaintiff commenced this action in September 2008 seeking damages from the defendants.  The causes of action relied upon include:-

(1)     trespass to the person;

(2)     false imprisonment;

(3)     misfeasance in public office;

(4)     defamation;

(5)     malicious prosecution;

(6)     contravention of provisions in the Hong Kong Bill of Rights Ordinance (Cap. 383);

(7)     contravention of the Hong Kong Basic Law (Cap. 2101).

4.  The facts based on which this action is brought can be summarized as follows.  In the small hours of 24 February 2007, the plaintiff passed by Wellington Street.  He saw several males surrounding a man and a woman in an alley.  Shortly later, those males emerged from the alley, claimed they were policemen and used foul language to scold the plaintiff.  The plaintiff dialled 999 to report.  He was then assaulted, handcuffed and arrested for “disorderly behaviour”.  He was later detained in the police station for about 7 hours before being released.

5.  The plaintiff was subsequently charged for the offence of assaulting police officers in due execution of duty but was acquitted after trial in December 2007.

Is the Appeal Out of Time ?

6.  The notice of appeal was issued on 25 February 2010 (more than 2 months after the master’s order).  RHC Ord. 58 r. 1(3) prescribes the period for issuing an appeal:-

“Unless the Court otherwise orders, the notice must be issued within 14 days after the judgment, order or decision appealed against was given or made and must be served within 5 days after issue … ”.

7.  The defendants argue that the prescribed time for appeal already expired after 23 December 2009.  On the other hand, the plaintiff claims that the prescribed period does not begin to run until the master’s order has been “perfected”.

8.  The plaintiff’s claim is contrary to the principles stated in Hong Kong Civil Procedure 2010, Vol. 1, para. 58/1/8:-

“The appeal is brought by way of a notice to attend before the judge … The notice … must be issued, unless the time is enlarged, within 14 days from the decision complained of …

It is not necessary, for the purpose of an appeal to the judge in chambers, to draw up the order appealed from”.

The claim is therefore invalid.

9.  The plaintiff also says he needed to wait for the reasons for the master’s order before he could issue the notice of appeal.  This is also wrong.  The nature of such an appeal is by way of a fresh re-hearing.  As Hong Kong Civil Procedure 2010, Vol. 1 says:-

“An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time … ” (para. 58/1/2).

Save in exceptional cases, the master’s reasons for his decision are of little use to such an appeal.

10.  Accordingly, there was a delay and no valid reason has been given by the plaintiff for it.

Trial by Judge and Jury

11.  The plaintiff relies on s. 33A(1), High Court Ordinance (Cap. 4) in relation to this aspect.  The provision states:-

“Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue-

(a)           a claim in respect of libel, slander, malicious prosecution, false imprisonment or seduction; …

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”.

12.  No doubt there are advantages for such legal claims to be tried by jury.  There are, however, also disadvantages: increased trial time and costs are two of the more common ones.  Since the introduction of the Civil Procedure Rules, the trend in the UK is now against trial by jury:-

“There is a shift of emphasis … [The] emphasis now is against trial with jury.  The overriding objective under the CPR is relevant to the exercise of that discretion.  In exercising it, an important consideration in favour of a jury arises where the case involves prominent figures in public life and questions of national interest … The difficulties of demarcation between the roles of judge and jury in a case of Reynolds privilege are a reason for exercising the discretion in favour of trial by judge alone, as is the desirability of a reasoned judgment” (emphasis supplied) (Gatley on Libel and Slander (2008) 11^th Ed., para. 33.65, text to nn. 258 to 263).

13.  The reasons for the preference for trial by judge alone have been amplified in Gatley:-

“… in recent years the trial of defamation actions before a judge and jury have become, if not a rarity, markedly less common than in the past … There are a variety of reasons for this: Reynolds privilege cases … are peculiarly unsuited to trial by jury, by reason of the confused division of functions of judge and jury, and by the jury having to find specific facts, sometimes necessitating an ‘exam paper’ of questions for the jury to answer, jury trials take longer, particularly as witnesses give their evidence in chief orally … ; and judges are becoming increasingly concerned about the inconvenience and practical difficulties of managing trials with juries … ”(emphasis supplied) (para. 36.1).

The same consideration applies where the trial is likely to involve matters of mixed law and fact: Ratiu v. Conway [2005] EWCA Civ. 1302 at [185] (a libel case brought by a solicitor against his clients who in a letter accused him of breach of fiduciary duty and breach of confidence).  See also Richards v. Naum (No. 1) [1967] 1 QB 620, 626E and 627 referred to by the defence.

14.  As stated above, the causes of action include potentially complicated issues of constitutional law concerning the ambit of police powers (see the summary given in para. 3 above).  Such issues are in the nature of matters of mixed law and fact if they remain issues to be resolved at trial.

15.  It is also highly doubtful if litigants acting in person (such as the plaintiff) can properly distinguish what matters are to be dealt with the judge and which by the jury.  If matters which ought not be known to the jury are disclosed to it during trial (whether inadvertently or not), there is a risk the jury has to be discharged and a re-trial has to be ordered.

16.  The statement of claim herein contains references to:-

(a)     irrelevant and/or inadmissible facts (see, for example, para. 3, 10 to 11 and part of 13 thereof);

(b)    judicial decisions and legal textbooks on quantum of loss (see, for example, para. (B)(i) to (C)(ii)) and other legal contentions (see, for example, pp. 8 to 10 and 11 thereof);

(c)     parts of the testimony given to, and the findings made by, the magistrate in the plaintiff’s trial referred to in para. 5 above, and his subsequent appeal against the magistrate’s costs order (see, for example, pp. 7 to 8 thereof).

17.  RHC Ord. 18 r. 7(1) stipulates that:-

“… every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits … ” (emphasis supplied).

If the plaintiff has difficulty in complying with a provision as plain as this, it is highly questionable if he can adequately deal with a trial with a jury properly.

18.  The plaintiff does not claim he is a prominent figure in public life (and there is no basis for so thinking).  The claim herein is not “questions of national interest”.

Striking Out Defence

19.  Several grounds of objection have been put forth by the defence:-

(a)     the master’s order dated 9 December 2009 has not determined this aspect.  Thus, this part of the purported appeal is misconceived;

(b)    the application does not accord with the practice that it be made in the first instance to the master by summons: Civil Procedure 2010, Vol. 1, para. 18/19/3;

(c)     the same application has earlier been dismissed: the plaintiff’s summons dated 10 October 2008 and the Registrar’s order dated 25 November 2008; the notice of appeal dated 25 November 2008 and A Cheung J’s order dated 5 May 2009; the application for leave to appeal dated 8 May 2009 and A Cheung J’s order dated 18 May 2009.  By reason of the doctrine of res judicata, this application is an abuse of process.

20.  Having perused the relevant documents in the court file, I agree with para. 19(a) and (c) above.

21.  I also agree with para. 19(b) above.

Conclusion

22.  The court’s discretion in relation to enlarging the time for an appeal brought pursuant to Ord. 58 r. 1 (appeals from masters) has been summarized in Hong Kong Civil Procedure 2010, para. 58/1/9:-

“… Hartmann J. analysed the two competing lines of authority in relation to the correct principles to be employed in exercising the discretion under RHC, O.3, r.5 … and concluded (at 241BD [of Mobil Petroleum Co. Inc. & Another v. Registrar of Trade Marks [2001] HKLRD 225]) that … the law is now settled as to the correct principle to be adopted … It is not the principle that before a discretion is exercised, there must first be an acceptable reason for any delay.  It is instead the principle that all matters, including the adequacy of any reason for delay, must be considered, the one to be weighed against the other, in the exercise of the court’s discretion. … ”.

23.  In this application, the only matter which weighs in favour of the plaintiff is s. 33A(1)(a), Cap. 4.  All the other matters set out above weigh against him.

24.  At the end, I agree with the defence this is not a proper case for enlarging the time for appeal.

25.  Accordingly, this application is refused.

Costs Order

26.  The defence agrees with the usual rule that costs should follow the event.  On the other hand, the plaintiff argues there should be no order as to costs.

27.  I agree with the defence.  There will accordingly be a costs order that the costs of this application be paid by the plaintiff to the defence. I consider summary assessment to be suitable.  For that purpose:-

(1)     the defendants are at liberty to lodge with court and serve a statement of costs within 7 days from the date of decision;

(2)     the plaintiff be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.