WAN CHI HING v. WONG CHUNG KAI t/a KAI HING TRADING CO

DCCJ 592/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 592 OF 2006

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D E C I S I O N

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DCCJ 592/2006, DCCJ 1497&1498/2006 (Consolidated), DCCJ 1673/2006 (collectively “the Main Actions”)

1.  This is an application by the plaintiffs in the Main Actions for the same to be transferred to the Court of First Instance of the High Court, pursuant to sections 41(1) and 42 of the District Court Ordinance, Cap 336. 

2.  The plaintiffs’ position is that from the documents recently disclosed by the defendants and made available to the plaintiffs on 25 May 2013, the claim in damages in DCCJ 592/2006 and DCCJ 1498/2006 exceeds the District Court jurisdiction of $1,000,000.

3.  Section 41(1) of the District Court Ordinance provides as follows: “The Court shall, either of its own motion or on the application of any party, order that an action or proceeding be transferred to the Court of First Instance where an action or proceeding commenced in the Court, not being a counterclaim, is outside the jurisdiction of the Court but is within the jurisdiction of the Court of First Instance.”  I note the word “shall” in that subsection.

4.  In Wong Miu Kwan v FPD Savills Property Management Ltd [2006] 1 HKC 575, at paragraph 21, Suffiad J gave guidance on how the matter should be approached:-

“(a) In the absence of abuse, a plaintiff should be entitled to frame his case in the manner that he wishes.

(b) At an interlocutory stage, it would not be proper for the court or a master to view the plaintiff’s claim in the same way as it would be viewed at trial by weighing the different evidence or by believing or disbelieving some or all of the evidence. That exercise can only be carried out where all the evidence, cross-examination and submission has been heard, particularly where there are factual and or other disputes between the parties, as for instance disputed expert opinion.

(c) Accordingly, the plaintiff’s case on quantum as framed by him ought to be viewed at its highest when determining the proper jurisdiction where the case should be brought.”

5.  Further guidance is given by H H Judge Thomas Au (as his Lordship then was) in Wong Kwong Wa v Hip Hing Construction Company Limited,DCPI 2039/2006 (Decision dated 11 July 2007).  At paragraph 16, the learned judge held as follows:  

“Thus, construing section 41 of DCO together with the principles laid down in Wong Miu Kwan, I am of the view that if the Court comes to the view that the claimed sum as framed, which say is above the District Court’s statutory jurisdiction, does not amount to an abuse and if there is nothing to conclusively contradict it at an interlocutory stage, the Court must and should transfer the matter to the High Court, unless it sees fit to exercise its discretion under section 41(2) of DCO to instead strike out the action.”

6.  The “abuse” referred to by the learned judge is an abuse relating to the framing of the claimed sum.  If the claimed sum as framed does not amount to an abuse and if there is nothing to conclusively contradict it at this stage, a transfer to the High Court is mandatory.  This coincides with my reading of the word “shall” in Section 41(1) of the District Court Ordinance.

7.  Mr Kenneth Lam, counsel acting for the defendants in the Main Actions today, helpfully confirmed that there is no allegation of mala fides against the plaintiffs’ formulation of their claim for damages.  In the circumstances, the defendants’ opposition to the application, based on the lack of “exceptional circumstances” to justify the variation of a milestone date, is simply misplaced.  This is a matter which goes to jurisdiction, not just a matter of case management.

DCCJ 1365/2006 and DCCJ 4077/2011 (collectively “the Harbour Base Actions”)

8.  In the event that the Main Actions are to be transferred to the High Court, the plaintiffs in the Harbour Base Actions apply for the same also to be transferred to the High Court, to be heard at the same time as the Main Actions.

9.  Mr Robert Pang SC, counsel acting for the plaintiffs in the Main Actions, told me that he does not oppose the application. 

10.  For the reasons stated above, I make the following order:-

(1) The Main Actions be transferred to the Court of First Instance of the High Court;

(2) The Harbour Base Actions be transferred to the Court of First Instance of the High Court;

(3) Subject to any order which the High Court may make, the Main Actions and the Harbour Base Actions shall be heard together; and

(4) The trial dates in the District Court from 7^th to 17^th October 2013 be vacated.

(Discussion re costs)

11. (1) In my view, it is proper for the plaintiffs in the Main Actions to apply for the transfer only after they have obtained discovery of the documents on quantum.

(2) In the circumstances, I agree that the appropriate order for costs is for the costs of the applications and the costs of the hearing today be costs in the cause (with certificate for 1 counsel).