ABLE ENGINEERING COMPANY LTD v. POON CHUK HUNG, aka POON CHUK-HUNG, JASON AND JASON POON

HCA 312/2023

[2024] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 312 OF 2023

_______________________

_______________________

________________________

DECISION

________________________

1.  Introduction

1.1  There are two summonses before me:

(1)  the first in time is the Plaintiff’s summons dated 1 November 2023 for judgment pursuant to RHC Order 19, rule 7 (“Default Judgment Application”).

(2)  secondly, by his summons dated 6 November 2023, the Defendant seeks (1) an extension of time to seek relief from sanction in respect of paragraph 1 of Master D To’s order made on 15 September 2023 (“15/9/23 Order”) and (2) relief from sanction (“Relief Application”).

2.  Chronology

2.1  On 2 March 2023, the Plaintiff commenced the present action, by which it seeks (1) injunctive relief and (2) damages for libel. The subject matters of the Plaintiff’s claim are two allegedly defamatory posts published on Facebook respectively on 20 December 2022 under the account of “潘焯鴻 Jason Poon” (“First Facebook Post”) and 21 December 2022 under the account of “CHINAT Monitor 中科監察“ (“Second Facebook Post”).

2.2  The First and Second Facebook Posts contain the following identical words:

“ 中科監察正在調查及核實一些工程相關事項，現邀請曾經參與下列圖中四個地盤工作的人員提供相關資料。主要是在石屎結構興建過程中，在上述地盤曾經拍攝的相片及影片。身份將會被保密。

有意提供資料請 pm 聯絡。”

2.3  In terms of photographic material, the First and Second Facebook Posts contain photographs and descriptions of 4 construction projects: (1) Tung Chung Area 100, (2) The redevelopment of Queen Mary Hospital, (3) Cingleot Premium Logistics Centre, and (4) Mapletree Logistics Hub Tsing Yi (“Four Projects”).

2.4  It is the Plaintiff’s case that it, either on its own or in joint venture with another, was the main contractor of 3 of the Four Projects (“Plaintiff’s Projects”). Statement of Claim §4 pleads that the First and Second Facebook Posts “are of and concerning the Plaintiff” or “they are reasonably in the circumstances understood to be referring to the Plaintiff.”

2.5  The Plaintiff complains that the Frist and Second Facebook Posts, either by their natural and ordinary meaning or by their inferred meaning, meant and were understood to mean that the Plaintiff was executing structural concreting works at the Plaintiff’s Projects with poor workmanship.

2.6  The Defence was only filed on 20 June 2023, after various applications for extension of time leading to an unless order made (by consent) on 24 May 2023. The Defence contains two operative parts (Sections II and III).

(1)  Section II denies all the constituent elements of the Plaintiff’s claim including the allegation that the Defendant created or controlled the two Facebook accounts, the First and Second Facebook Posts referred to the Plaintiff and the meaning of the First and Second Facebook Posts advanced in the Statement of Claim.

(2)  Section III advances specific defences including justification and qualified privilege.

2.7  The Plaintiff made a Request for Further and Better Particulars of the Defence on 21 July 2023 (“Request for F&BPs”). A summons was then issued on 4 August 2023 to compel the Defendant to provide his answer and an order was made for the Defendant to do so within 14 days. On the Defendant’s second application for extension of time, Master D To made the 15/9/23 Order, paragraph 1 of which states as follows:

“ Unless by 4 pm on 13 October 2023 the Defendant files and serves the Answers to Request for Further and Better Particulars of the Defence, the Defendant’s Defence be struck out and the Plaintiff be at liberty to apply for judgment to be entered against the Defendant with costs…”

2.8  It is pertinent to note that the Request for F&BPs are only directed at various paragraphs of section III of the Defence.

2.9  The Defendant did not comply with 15/9/23 Order §1. As a result, the Plaintiff issued the Default Judgment Application.

2.10  On 6 November 2023, no doubt in response to the Default Judgment Application, the Defendant issued the Relief Application but without any supporting evidence.

2.11  Both applications came before me on 6 December 2023. At the hearing the Plaintiff was represented by Ms Lee Wing Ki (“Ms Lee”) and the Defendant by Mr Herman Ho (“Mr Ho”), both of counsel.

2.12  On 4 December 2023, an affirmation of Mr Ho Siu Foon (“Madam Ho”), a clerk of the Defendant’s solicitors, was filed in support of the Relief Application. A number of matters are of note:

(1)  The affirmation was not filed at the time when the summons was filed for the Relief Application, which was in breach of the cumulative effect RHC Order 2, Rule 5 and Order 32, Rule 1. No explanation has been provided.

(2)  Secondly, no explanation has been provided as regards the Defendant’s non-compliance with RHC Order 2, Rule 4, namely that he ought to have applied for relief from sanction within 14 days of the failure.

(3)  Thirdly, the Defendant’s solicitors sought to take the blame for not complying with the 15/9/23 Order due to an unparticularized “miscommunication”.

(4)  A final draft of the Answers to the Request of F&BPs is exhibited.

2.13  At the hearing on 6 December 2023, Ms Lee confirmed that the Plaintiff did not intend to file any evidence to deal with Madam Ho’s affirmation. Directions were then given for Ms Lee nd Mr Ho to lodge another round of written submissions and for the two summonses to be dealt with on the papers.

2.14  This is my Decision. I will first deal with the Relief Application, as were it successful, it would be unnecessary to deal substantively with the Default Judgment Application save the issue of costs.

3.  The applicable principles

3.1  On an application for relief from sanction, the court will consider all the circumstances including the factors set out at RHC Order 2, rule 5. It has been said that the identified factors, though helpful as a checklist, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-faceted balancing exercise with no single factor being conclusive: The IO of Yue Sun Mansion v Lake Side Elderly Centre Ltd, HCMP 556 of 2017, 25 October 2017 §12.

3.2  On the issue of interests of administration of justice, the authorities suggest that there are two seemingly competing considerations.

(1)  On the one hand, as pointed out by Ms Lee (citing Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at 1675B-C), the interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two.

(2)  On the other hand, as pointed out at Daimler AG v Leiduck [2012] 3 HKLRD 119 at §57, a weighty factor in the weighing exercise to be undertaken is the question of proportionality of the sanction in the circumstances of the case.

4.  Analysis

4.1  In my view, the following matters weigh in favour of granting relief from sanction:

(1)  Although it cannot be decided at this stage whether the monetary claim against the Defendant is or is not substantial, a serious allegation has been made against the Defendant, namely that the First and Second Facebook Posts were published or caused to be published maliciously and/or with ulterior motives. It has been held that serious allegations should be the subject of a trial: Daimler §58, Tiger Resort Asia Ltd v Kazuo Okada & Ors [2022] HKCFI 2289 §§46 and 50 and China Medical Technologies, Inc (In Liquidation) & Ors v The Bank of East Asia Ltd [2023] HKCFI 2156 at §91.

(2)  The Request for F&BPs was only directed at Section III of the Defence. In Chan Luen v Chan Kwong Chi & Ors [2019] HKCFI 2829, the plaintiff attempted to enter judgment when, as here, the defendants did not comply with an unless order to file their answers to a request for further and better particulars. The court only ordered part of (instead of the whole of) the defence to be struck out and dismissed the judgment summons. A distinguishing feature in that case was that there was no reason for the court to suppose that the defendants could provide the answers (§53). Here, the Defendant has provided his Answer.

(3)  The present case is still at an early stage. Proceeding on the basis that the final draft of the Answer was produced by Madam Ho’s affirmation on 4 December 2023, the non-compliance lasted for less than 2 months. Whilst I accept that the delay of 2 months cannot be trivialized as de minimis, it seems plain to me that the Defendant’s delay cannot be said to have caused a significant delay to this action.

(4)  Even were relief granted, it does not necessarily mean that it would inevitably cause further delay in these proceedings. As noted at China Medical §§104 and 106, (1) the Plaintiff can no doubt alert the court at the appropriate juncture the procedural history of this action and invite the court to take appropriate measures to prevent any further “feet dragging” by the Defendant and (2) the foregoing may be reflected or buttressed by a more generous costs order in favour of the Plaintiff for the present instance of non-compliance by the Defendant.

4.2  On the other hand, the following factors may be said to militate against granting relief from sanction:

(1)  There is no proper evidence to support the “miscommunication” such that I can conclude that the failure to comply was caused by the Defendant’s legal representatives.

(2)  The Relief Application is defective since it does not comply with the cumulative effect of RHC Order 2, rule 4 and Order 32, rule 1.

(3)  There has been multiple applications by the Defendant for extension of time and there is no explanation as to why the present application was on made beyond the period prescribed by RHC Order 2, rule 4 (before 27 October 2023 but only made on 6 November 2023 and only properly constituted on 4 December 2023 when Madam Ho’s affirmation was filed).

(4)  Ms Lee suggests that some of the Answers provided, when read together with the Defence already filed, do not disclose an arguable defence.

4.3  I have taken stock of the above in the context of the factors set out at RHC Order 2, Rule 5(1). With some misgivings, I am come of the view that it is appropriate in the exercise of my discretion to grant relief from sanction.

4.4  In relation to the factors identified at §4.2 above, they pertain to the factors identified at Rule 5(1)(b), (d), and (e). Given the unsatisfactory evidence set out in Madam Ho’s evidence, I also proceed on the basis that the failure to comply was intentional and the Defendant himself was partially at fault (ie the factors identified at Rule 5(1)(c) and (f).

4.5  In relation to the factors identified at §4.1 above, they pertain to the factors identified at Rule 5(1)(a), (h), (i) and (j). In my view, weight should be attached to the following matters:

(1)  It is not in the interests of the administration of justice that serious findings go by way of default. In the present context, whilst it may perhaps be notorious that the Defendant has imposed upon himself the role of a whistle-blower in relation to large scale construction projects in Hong Kong and some may even view that role as one of an unjustified busybody, serious allegations are nevertheless advanced against the Defendant: for example SOC §§18(11)-(13) and (16) and 19(1). They include (a) the First and Second Facebook Posts are part of a sustained campaign against the Plaintiff, (b) the Defendant’s publication was with a view to attract public publicity or enhance his reputation, (c) the Defendant had calculated that the benefit to the Defendant would outweigh any compensation payable to the Plaintiff and (d) effectively an allegation of dishonesty, namely the Defendant published the First and Second Facebook Posts knowing that the allegations contained therein were false or reckless as to their truth or falsity.

(2)  In terms of factors identified at Rule 5(1)(i) and (j), it is true that the Plaintiff has incurred costs in relation to the Default Judgment Application and the Relief Application, this will be taken into account when it comes to costs.

(3)  I note Ms Lee’s submission that she has formed the view that the Defendant’s case is weak but the Plaintiff is at liberty to (if thought fit) to take out an application to deal with the case summarily. In any event, it seems to me that 15/9/23 Order §1 is a time order such that a qualitative analysis of the adequacy of the step undertaking is in general not necessary: Zhao Zhi Qiang v Zhao Zhiguang & Anor [2022] HKCFI 3356 §§32-37. It has not been suggested by Ms Lee that the compliance was not made in good faith or illusory but only that the Defendant’s Answer is “rather empty in content”. It may be that the Defendant has a weak case but, as noted above, there are other procedures more appropriate to deal with the lack of merits of a case.

4.6  Whilst each case must depend on its own facts, I note that a similar analysis was carried out (save the matter set out at §4.5(3) above) and a similar conclusion was reached in China Medical (§§90 to 107).

5.  Conclusion

5.1  For the above reasons, I grant an extension of time for the Defendant to apply for relief and relief from section in respect of paragraph 1 of the 15/9/23 Order. The Defendant is to file his Answer to the Request for F&BPs in the form annexed as HSF-1 of Madam Hung’s affirmation within 3 days. Insofar as necessary, I grant an extension of time for the Defendant to rely on Madam Ho’s evidence in relation to the Relief Application.

5.2  As a consequence, the Default Judgment Application is dismissed.

5.3  As to costs, although the Default Judgment Application is dismissed, it is only as a result of my acceding to the Relief Application, which is one for seeking indulgence from the court. Given what I have identified at §§4.1(4) and 4.2 above, I make an order nisi that the defendant is to pay the costs of and occasioned by the Relief Application and the Default Judgment Application to the Plaintiff on an indemnity basis. The Plaintiff is to lodge and serve its Statement of Costs within 7 days and the defendant his Statement of Objection within 7 days thereafter. Summary assessment will thereafter be conducted on the papers.

5.4  I thank counsel for their assistance.