DR CHAN HIN KEUNG HENRY v. APPLE DAILY LTD AND OTHERS

DCCJ1474/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1474 OF 2013

--------------------

--------------------

--------------------

DECISION

--------------------

Introduction

1. The 1^st to 3^rd defendants apply for leave to appeal against my decision handed down on 19 January 2015 (“the Decision”).  I dismissed the 1^st to 3^rd defendants’ application for leave to amend their defence and had allowed the plaintiff’s application to strike out part of the 1^st to 3^rd defendants’ witness statements.

The Decision

2. The applications were formulated in this manner because the 1^st to 3^rd defendants’ witness statements contained evidence beyond their pleaded defence, the 1^st to 3^rd defendants applied for leave to amend their defence, more correctly, to substantiate it to an extent that could sufficiently cover the evidence in their witness statements.  The parties agreed the application for leave to amend the defence was determinative, in event leave be granted, the plaintiff’s application would fail.

3. I accept in applying Katteman v Hansel Properties Ltd [1987] AC 189 and Natamon Protpakon v Citibank NA [2009] 1 HKLRD 455, the proposed amendments to the defence are not bound to fail and thus amendment is justified, only that the 1^stto 3^rd defendants’ application was dismissed for case management reasons.  It is fair to say that the Decision is one of a case management decision.

4. As background information, the plaintiff is and was, amongst others, a practicing chiropractor in Hong Kong; and the President of the Hong Kong Chiropractors Association Limited.  The plaintiff claims the 1^st to 3^rd defendants (the 4^th defendant was added after at a late stage) for damages and other reliefs arising from three alleged defamatory articles and offending words published in page A8 of the 26 November 2012 edition of the Apple Daily newspaper, which were also uploaded on the Apple Daily Website on the same day.

Legal principles for leave to appeal

5. Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of theDistrict Court Ordinance, Cap 336).

6. The relevant test for reasonable prospect of success is whether the applicant can show he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be probable. (See KNM v HTF, unreported, HCMP 288/2011, 7 September 2011)

Discussion

7. I do not intend to reproduce the applicable principles of granting leave to strike out witness statements and to amend defence.

8. In the appeal proper (if leave to appeal was granted), the tests where case management decisions are only subject to appeal in rare circumstances.  An appellant have to demonstrate the judge below had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its tasks, or the judge erred in principle or the order was irrational having regard to the issues that had to be resolved. (See Wong Kar Gee Mimi v Seven Villa Ltd [2012] 1 HKLRD 887 at 897 per Kwan JA)

9. It is established that the appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or exercise of his discretion was plainly wrong and such that it is outside the general ambit within a reasonable disagreement is possible.  (See Wong Kar Gee Mimi v Seven Villa Ltd, supra)

10. Not only an appellant needed to demonstrate the exercise of discretion by the judge is in fact plainly wrong, not merely the appellate court would prefer a solution which the judge had not chosen. (See commentaries of the The Hong Kong Civil Procedure 2015 at §59/2A/4)

11. Ms Lau, counsel for the 1^st to 3^rd defendants submitted, the real prospect of success that the Court of Appeal, with reference to the test in the appeal proper above, would have held that I have erred in dismissing the 1^st to 3^rd defendants’ summons on the grounds that the said application was: (i) a late application; (ii) taken out without explanation; and (iii) taken out when the action has reached the verge of setting down for trial.

12. Ms Lau submitted the 1^st to 3^rd defendants’ application was duly taken out on 29 August 2014, in compliance of Master D Ho’s order dated 24 June 2014.  Master D Ho specifically directed the parties to obtain counsel advice, if necessary, and take out all necessary interlocutory applications by that date.  Neither did the 1^st to 3^rd defendants confirmed no amendment of defence will be taken out either by way of their timetabling or listing questionnaires.  It is therefore a timely application and no explanation is required.

13. Albeit Master D Ho has directed the parties to take out all interlocutory applications by 29 August 2014, I classified the 1^st to 3^rd defendants’ application to amend their defence as a late application because it was taken out at a stage where the parties were  the verge of setting down the action for trial.  The 1^st to 3^rd defendants should not be allowed to amend their defence considerably, at this late stage, without valid explanation.

14. Ms Lau further submitted, the plaintiff applied to join the 4^th defendant on 10 September 2014, the parties are yet to reach the verge of setting this action down for trial.  As at the date of substantive argument of the summonses, no directions have been sought with regard to the 4^th defendant.

15. I do not agree, the 4^th defendant is the registrant/owner of the Apple Daily website, the plaintiff’s claim against all defendants remains the same.  I accept Mr Lui, counsel for the plaintiff’s submission, by adding the 4^th defendant as a defendant would not impact on the overall progress of this action.

16. Having said that, for one point, inasmuch it is well established that parties should have explained the reason of taking out late applications,  I agree with Ms Lau’s submissions that there is no authority in support of classification of a late application when it was taken out within the time frame laid down by the court.  Notably the 1^st – 3^rd defendants’ application to amend the defence was not technical in nature, but raising new line of defences premised on the evidence disclosed as early as 21March 2014, in the 1^st – 3^rd defendants’ List of Documents. For this sole reason, an explanation should be justified.

17. Ms Laurevisited Raytech Industries Co Limited v. Leung Wai Kit (unreported, HCA 1360/2011, 16May 2014), DHCJ Le Pichon decided in paragraph 26 of the decision,

“Having regard to the underlying objectives of the CJR, the court must be vigilant against attempts to derail the timetable set. So, where there is an order setting a deadline for making interlocutory applications, late applications require an explanation and should not be entertained without the court being satisfied with the explanation for the delay. Further and in any event, a late application should not be entertained in the absence of a draft of the proposed application save for exception circumstance.”

18. Having considered Ms Lau’s submissions, I am satisfied there is an arguable case on appeal, with reasonable chances of success, leave to appeal to should be granted to the 1^st to 3^rd defendants.

Conclusion

19. I allow the 1^st to 3^rd defendant’s summons and grant leave to the 1^st – 3^rd defendant to appeal against the Decision.

20. Costs of the 1^st to 3^rd defendant’s summons be in the cause of the appeal.