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HCA000890A/2003
HCA890/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO.890 OF 2003
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TSUI KOON WAH |
Plaintiff |
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AND |
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LAM KING YUEN |
1st Defendant |
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KWOK YUEN HAN |
2nd Defendant |
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TAM WAI HUNG |
3rd Defendant |
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NG LAW SEE LING |
4th Defendant |
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Coram: Hon Tang J in Chambers
Date of Hearing: 14 May 2004
Date of Judgment: 27 May 2004
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J U D G M E N T
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1. The plaintiff was dismissed from the post of Contract Social Security Assistant ("CSSA") in January 2003. The defendants were colleagues of the plaintiff at the Social Welfare Department at the material time.
2. The plaintiff claims against the defendants for alleged defamatory remarks which led to his dismissal.
3. On 16 January 2004, the 1st, 2nd and 4th defendants were ordered to answer interrogatories "in writing by affidavit".
4. The affirmations filed on behalf of the 1st, 2nd and 4th defendants on 5 February 2004 did not give the address of the deponents, contrary to Order 41, rule 1(4) and section 7(4) of the Oaths and Declarations Ordinance, Cap.11 ("the Ordinance").
5. The 1st, 2nd and 4th defendants were ordered by Master C. Chan to amend those affirmations, and to pay $200 costs to the plaintiff.
6. On 25 February 2004, supplemental affirmations were filed by these defendants stating that they were made "pursuant to the Order made by Registrar C. Chan on 17th February 2004 to amend my affirmation filed on 5th February ("the Affirmation") by way of providing my address as hereinbefore stated".
7. The addresses given in the supplemental affirmations were the addresses of the Social Welfare Department at which presumably the deponents were working at the time of the supplemental affirmation.
8. By a summons dated 28 February 2004, the plaintiff applied to have the affirmations filed on 5 February 2004 and the supplemental affirmations filed on 25 February 2004 struck out for non-compliance with the Ordinance and Order 41 of the Rules of the High Court. The plaintiff also applied to have the re-amended Defence filed for the 1st, 2nd and 4th defendants struck out and judgment entered against them, and lastly, the plaintiff applied for costs.
9. This application was heard by Master Levy on 28 April 2004 and dismissed. The plaintiff was ordered to pay costs in the sum of $3,800 forthwith.
10. On 3 May 2004, the plaintiff appealed against the order of Master Levy. The plaintiff, who appeared before me in person, argued that the supplemental affirmations did not comply with section 7(4) of the Ordinance in that, having regard to the "general possessive sense attached to 'OF' the Plaintiff submits that the Defendants cannot be 'of' an address of a place when they are neither owner nor lease holder of the place".
11. I do not agree. I do not believe, for example, that if a person lives at home and gives the address of his father's house which is owned by his father he could be said to have failed to comply with the Ordinance.
12. The plaintiff also relies on Order 41, rule 1(4) of the Rules of the High Court. This reads :
"(4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact. In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating, the deponent's place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any."
13. The plaintiff argues that the residential address of the deponents should have been given rather than the address of his work place since the court had not otherwise directed.
14. Miss Selina Hui who appeared on behalf of the defendants argued that insofar as the claim arose out of the defendants' employment at the Social Welfare Department, they were entitled to use the address at which they work because the defendants were deponents who were giving evidence "in a professional, business or other occupational capacity".
15. But the claim against the defendants is for defamation. Even though the cause of action complained of might have allegedly arisen in the course of or during the defendants' employment with the Social Welfare Department I do not think it is correct to say that in answering the interrogatories on oath they were "giving evidence in a professional, business or other occupational capacity". I do not believe in the circumstances of the present case, it can fairly be said that the defendants were giving evidence in any occupational capacity.
16. That does not mean that an affirmation which fails to comply with Order 41, rule (1)(4) should be struck out. Miss Hui, at my invitation, was willing to rely on Order 41, rule 4 under which an affidavit may, with the leave of the court, be filed or used in evidence notwithstanding any irregularity in the form thereof.
17. The plaintiff argues that Order 41, rule 4 can only be invoked before the filing of the affidavit. But as is clear from the wording of Order 41, rule 4 itself, an irregular affidavit may be "used" with the leave of the court.
18. I am willing to give leave in this case for the affirmations to be used notwithstanding the irregularity. I do so because there can be no doubt about the identity of the deponents in the present case. I believe the primary reason which requires the giving of a residential address is one of identification. Here, the deponents are the defendants in the action and there is no question about their identity being uncertain or unknown.
19. It follows that I will not strike out the affirmations filed on 5 February 2004, the supplemental affirmations filed on 25 February 2004 nor the defendants' re-amended Defence.
20. I turn to consider the question of costs. The plaintiff is correct on the construction of Order 41, rule 1(4), but I was not prepared to strike out any of the affirmations or the amended Defence. Although the plaintiff had succeeded in persuading me that the affirmations were irregular, it was never likely that the affirmations or the re-amended Defence would be struck out. I do not wish to encourage any party to take unnecessary technical points. But the defendants could have invoked Order 41, rule 4 below or asked for a direction under Order 41, rule 1(4) permitting occupational addresses to be used. So the defendants must bear at least part of the blame for the appeal. In all the circumstances, I would award the plaintiff half of the costs of the appeal. The plaintiff had submitted a bill of costs based on $200 per hour, totalling $2,819. I think the hourly rate is too high, bearing in mind that when the plaintiff was employed at the Social Welfare Department, his pay was HK$11,820. Doing the best I can, I would award a sum of $500 as costs.
21. In relation to the costs below, the plaintiff was ordered to pay $3,800 costs to the defendants. But that was on the basis that the plaintiff was wrong on Order 41, rule 1(4). I would set aside that order. It was these defendants' failure to comply with the order of Registrar C. Chan which led to the application. The plaintiff should also be given half of the costs of the application before the master which I would assess in the sum of $250.
22. All such costs are to be paid forthwith.
23. So I give leave for the supplemental affirmations to be used in evidence notwithstanding the irregularity in the addresses given. Subject to that the appeal is dismissed.
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(Robert Tang) |
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Judge of the Court of First Instance, |
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High Court |
Representation:
The Plaintiff in person
Miss Selina Hui of Messrs Liu, Chan & Lam, for the Defendants
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