SHAFQAT ALI v. SECRETARY FOR JUSTICE sued for and on behalf of CORRECTIONAL SERVICES DEPARTMENT

DCCJ 2852/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2852 OF 2011

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BETWEEN

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D E C I S I O N

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1.  There are before me three applications by the plaintiff:-

(i)  Paragraph 2 of the Summons dated 28 May 2013 seeking leave to file a Supplemental Witness Statement of the plaintiff as per the draft annexed to the summons (the “1^st Summons”).

(ii) Summons dated 30 May 2013 seeking leave to file a 2^nd Supplemental Witness Statement of the plaintiff (the “2nd Summons”); and

(iii) Summons dated 3 June 2013 seeking leave to file a Re‑Amended Statement of Claim and Amended Reply (“the 3rd Summons”).

2.  The first thing to note about these applications is their lateness.  The 1^st and 2^nd Summonses were both issued less than 1 week before the scheduled commencement of trial.  Whereas the 3^rd Summons was actually submitted to the court on the first day of trial.  It should be noted that under CJR, the trial dates are “milestone dates” which should not be varied unless there are exceptional circumstances.

3.  I think it would be convenient to deal with the 1^st Summons and the 3^rd Summons together, because the proposed amendments at paragraph 2(a) of the draft Re-Amended Statement of Claim seek to plead the matters raised in the Supplemental Witness Statement of the plaintiff. 

4.  I should note at this juncture that the defendant does not object to the proposed amendments at paragraphs 2(b) and 4 of the Re-Amended Statement of Claim and the proposed amendments to the Reply.  The defendant further indicates that it does not need to amend its Amended Defence as a result.

5.  Regarding the proposed amendments at paragraph 2(a) of the draft Re-Amended Statement of Claim and the matters raised in the Supplemental Witness Statement of the plaintiff, contrary to the plaintiff’s stance that there is no change to his case and no prejudice would result, I agree that grave prejudice would result to the defendant because the plaintiff is essentially attempting to substantially change his case on the first day of trial.

6.  In the original paragraph 2(a) of the Amended Statement of Claim, it is pleaded that the strip searches and rectal searches were carried out “in front of other prisoners and/or people in the Centre”, meaning the Lai Chi Kok Reception Centre.  Again, in the Witness Statement of the plaintiff dated 21 June 2012, the plaintiff stated that “I was forced to stand naked in front of 20 people”. Moreover, in paragraph 5 of the original Reply, the plaintiff averred that “all the Searches were conducted not in a partitioned area”. 

7.  The above is the case pleaded by the plaintiff in his original pleadings and the one which the defendant has prepared to defend.

8.  Amongst other things, the plaintiff now appears to concede that contrary to its original pleaded case, the Searches were not conducted “in front of other prisoners and/or people in the Centre”.  The plaintiff’s story now is that even with the curtained partitions, the Searches were conducted in a way that was humiliating and was in disregard of his privacy, because he was not completely covered from view.  This is a far cry from its original factual matrix.

9.  I agree with Ms Abigail Wong, counsel acting for the defendant, that the fact that a new story has now been put forward as the plaintiff’s factual matrix is not simply a matter for cross-examination.   Prior assessments as to litigation risk and the defendant’s position would need to be re-examined.  Further, the defendant has reasonably suggested that further evidence will have to be gathered for him to meet the new case, for example, the state of the curtained partition on the days when these searches were carried out.  This cannot be done without disruption to the trial.

10.  The plaintiff needs to, but still has not given a reasonable explanation as to why the contents of his Supplemental Witness Statement could not have been canvassed earlier.  Appreciably, these facts are of a nature to be fully within his knowledge from the beginning.  As the party bearing the burden to prove his case, it is incumbent upon the plaintiff to state his full case in the very beginning, in order to avoid surprise at trial.

11.  These proceedings were commenced in July 2011.  Leave to file the latest round of Witness Statements was obtained on 5 April 2013 by both parties.  The plaintiff has given no good reason for raising for the first time, this request to file his Supplemental Witness Statement less than one week before trial.  Contrary to the assertion of the plaintiff’s counsel, these are not merely matters of details.

12.  Deputy High Court Judge Lok in Li Shiu To v Li Shiu Tsang,  HCA 416/2003 (Reasons for Decision dated 14 August 2012) gave useful guidance on the impact of the Civil Justice Reform on the question of amendment of pleadings:-

“17. Second, there is a heightened concern to guard against late applications after the implementation of the CJR. For case management purposes, there are now certain milestone dates in the course of litigation, and one of which would be the trial date. If a party makes a late application to amend the pleadings with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances. Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigations. Hence, one should not assume that once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleadings in particular at a very late stage of the proceedings.”

13.  In my view, to allow the plaintiff’s application to amend paragraph 2(a) of the Amended Statement of Claim and to file his Supplemental Witness Statement at this late stage would be an outright affront to the principle of fairness and good case management.  The applications are therefore dismissed.

14.  On the defendant’s non-objection thereto, I would grant leave to the plaintiff to:-

 (i) File the Re-Amended Statement of Claim in the manner as shown in paragraph 2(b) and 4 of the draft annexed to the 3^rd Summons; and

 (ii) File the Amended Reply in the manner as shown in the draft annexed to the 3^rd Summons.

The Statement of Claim and Reply so amended should be filed and served within 3 days from today.  For good record, I would also direct the 3rd Summons to be filed within 3 days from today, with service of the same to be dispensed with.

15.  Regarding the 2^nd Summons, I am inclined to agree with the plaintiff that the contents thereof are an elaboration on paragraph 2 of his Witness Statement dated 21 June 2012 at page 48 of the Trial Bundle.  It is a matter on which I would have allowed the plaintiff to elaborate in his examination-in-chief.  In the circumstances, I would grant leave to the plaintiff to file and serve by 4 June 2013 his 2^nd Supplemental Witness Statement, save that the same should be called the “Supplemental Witness Statement of Shafqat Ali”.